. Fixed-term employment contract

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

Lists of works (cases) provided for in both Part 1 and Part 2 of Art. 59 are not exhaustive. The Labor Code or other federal laws may provide for other cases when the conclusion of a fixed-term employment contract is either mandatory by law or permitted by agreement of the parties to the employment contract. Since in Art. 59 we are talking about the Labor Code or another federal law; neither the law of a 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, correspond to the general criterion for concluding a fixed-term employment contract, formulated in, i.e. All the cases listed in it determine the urgent nature of the labor relationship.

Thus, the conclusion of a fixed-term employment contract in the areas listed in Part 1 of Art. In 59 cases it is determined by the very nature of the work or the conditions of its implementation, and is therefore mandatory.

Part 1 art. 59 names 11 specific cases when a fixed-term employment contract is concluded with an employee:

1) for the duration of the duties of a temporarily absent employee. Such an employment contract is concluded when an absent employee, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, retains his 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 depends on the time of the absent employee’s return to perform his labor (official) duties. Since the law speaks of the temporary absence of an employee whose place of work (position) is retained, a fixed-term employment contract cannot be concluded to perform the duties of a vacant position until another permanent employee is hired for this position;

2) to perform temporary (up to two months) work, as well as seasonal work, when, due to natural conditions, work can only be carried out during a certain period (season), not exceeding, as a rule, six months (see commentary to Art. 293).

Concluding a fixed-term employment contract for a period of up to two months is possible provided that the work is obviously temporary, i.e. it is known in advance that it will last no more than two months (for example, during the preparation of the annual report). In this case, the contract by agreement of the parties must determine the specific term of the employment contract within two months (three weeks, one month, 1.5 months, etc.).

It will be unlawful to conclude a fixed-term employment contract for a period of up to two months to perform work that is permanent for the employer.

Concluding a fixed-term employment contract to perform seasonal work is permitted provided that this work is provided for in a special list of seasonal work. Lists of seasonal work, incl. individual seasonal work, the implementation of which is possible during a period (season) exceeding six months, and the maximum duration of these individual seasonal work are determined by industry (inter-industry) agreements concluded at the federal level of social partnership. For example, in accordance with the Industry Agreement on organizations of the forest industry complex of the Russian Federation for 2012 - 2014, seasonal work in the forest industry is recognized as:

Logging industry (extraction of resin, barras, stump tar and spruce sulfur);

Timber rafting (discharge of wood into water, primary and raft rafting of timber, sorting on water, rafting and rolling out wood from water, loading (unloading) of wood onto ships (see commentary to Article 293).

Concluding a fixed-term employment contract for a specific season to perform work not provided for in a special list will be considered unlawful;

3) with persons sent to work abroad. It does not matter to which organization abroad the employee is sent. These may be diplomatic missions and consular offices of the Russian Federation abroad, as well as representative offices of federal executive authorities and government agencies of the Russian Federation, commercial organizations, scientific and educational institutions, etc. For example, in accordance with Art. 338 of the Labor Code, an employment contract is concluded with an employee sent to work at a representative office of the Russian Federation abroad for a period of up to three years (see commentary to Article 338);

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

In this case, the usual activities of the employer should be understood as those types of work that correspond to the main directions of the organization’s activities as enshrined in its charter. As an example of work that goes beyond the normal activities of an organization, the law names reconstruction, installation, and commissioning work. Depending on the nature (type) of the organization’s normal activities, this may include other work, such as repairs and construction. However, in all cases, work that goes beyond the normal (core) activities of the organization, for which fixed-term employment contracts can be concluded, must be temporary (urgent) in nature. Since the law does not establish any special deadline for which such an employment contract can be concluded, the term of the employment contract is determined in each specific case by agreement of the parties based on specific circumstances and the period of time during which there remains a need to perform work beyond outside the normal activities of the organization. Here the general rules on the maximum term of the employment contract established by Art. 58 of the Labor Code of the Russian Federation, i.e. five years.

Unlike an employment contract concluded to carry out work outside the scope of the employer’s normal activities, 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 organization’s normal activities and the need to expand production or the volume of services provided is limited to certain time limits, known to the employer.

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

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

The fact of creating an organization for a certain period or only to perform certain work must be recorded in the charter of this organization. The charter of the organization also defines the specific period of time for which it was created or during which the work will be completed, the implementation of which is the purpose of creating the organization (for example, for two, three, four years).

The term of an employment contract with persons entering an organization created for a predetermined period of time or to perform a predetermined job is determined by the period for which such an organization was created. Therefore, termination of an employment contract with these employees on the basis of expiration of the employment contract can be carried out if the organization actually ceases 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 transfer of rights and obligations in the order of succession to other persons (clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2);

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

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

7) to perform work directly related to practice, vocational training or additional vocational education in the form of an internship. The need for employee training (vocational education and vocational training) and additional vocational education for its own needs is determined by the employer. Training of employees and additional professional education of employees is carried out by the employer on the terms and in the manner determined by the collective agreement, agreements, and employment contracts. The term of the employment contract in this case is determined by the period of internship, vocational training or internship established by the collective agreement, agreements or employment contract (see commentary to Articles 196, 197);

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

In accordance with Art. 332 of the Labor Code are elective, for example, the positions of dean of a faculty and head of a department, positions of a scientific and pedagogical worker in an educational organization of higher education (see commentary to Article 332).

When applying for a job related to the direct support of the activities of members of elected bodies or officials in state authorities and local governments, in political parties and other public associations, the term of the employment contract is established by agreement of the parties within the term of office of the relevant elected body or official .

It should be noted that in this case we are talking about work related to directly supporting the activities of members of these bodies or officials. This means that not all persons applying for work in these elected bodies can be entered into a fixed-term employment contract. We are talking about agreements concluded to perform work that is directly aimed at ensuring the activities of members of the relevant elected bodies or officials (for example, work as an assistant, secretary, adviser to the governor; assistant, assistant to the party chairman).

Early termination of the powers of certain bodies or officials should entail the termination of employment contracts with persons hired to ensure the specified activities;

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

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

10) with citizens sent to perform alternative civil service. When concluding an employment contract with this category of citizens, it should be borne in mind that the status of citizens performing alternative civil service is established by Federal Law of July 25, 2002 N 113-FZ “On Alternative Civil Service” in accordance with the Constitution of the Russian Federation. Alternative civil service is a special type of labor activity in the interests of society and the state, carried out by citizens in exchange for conscript military service. The procedure for sending citizens to alternative civil service is determined by the said Law, other federal laws, and the Regulations on the procedure for performing alternative civil service, approved. Decree of the Government of the Russian Federation of May 28, 2004 N 256, and other regulatory legal acts of the Russian Federation adopted in accordance with them.

The labor activity of citizens performing alternative civil service is regulated by the Labor Code, taking into account the features provided for by the specified Federal Law.

In accordance with Art. 5 of this Law, the period of alternative civil service is 1.75 times greater than the period of military service established by the Law on Military Duty and is 21 months for citizens sent to serve it after 01/01/2008. The period of alternative civil service for citizens undergoing this service in organizations of the Armed Forces of the Russian Federation, other troops, military formations and bodies is 1.5 times greater than the period of conscription military service established by the Law on Military Duty and is 18 months for citizens sent for it. passing after 01/01/2008.

In accordance with the specified deadlines, the term of the employment contract with citizens sent to perform alternative civil service is determined. When concluding an employment contract, the parties do not have the right to establish a different duration of its validity. However, it should be borne in mind that the following are not counted towards the term of alternative civil service:

Absenteeism (absence from the workplace without good reason for more than four hours in a row during the working day);

Time spent on additional leave provided by the employer to citizens studying in educational organizations;

The time of serving a criminal or administrative sentence in the form of arrest;

Appearing at work in a state of alcohol, drug or other toxic intoxication.

The end of a citizen’s alternative civil service is considered to be the day the employer terminates a fixed-term employment contract with a citizen upon his dismissal from the alternative civil service. In this case, a fixed-term employment contract with a citizen performing alternative civil service must be terminated by the employer on the day of expiration of his alternative civil service.

3. Unlike part 1 of the commented article, according to which the conclusion of an employment contract for a certain period due to the nature of the work to be done or the conditions for its implementation is mandatory, 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 listed in Part 2 of Art. In 59 cases, it can be concluded without taking into account the nature of the work to be done or the conditions for its implementation. It must be borne in mind that such an agreement can be recognized as legal 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 about 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 Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

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

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

The concept and types of small businesses are defined by Federal Law No. 209-FZ of July 24, 2007 “On the development of small and medium-sized businesses in the Russian Federation.” 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 as small enterprises, incl. to micro- and medium-sized enterprises.

According to Art. 4 small and medium-sized businesses include consumer cooperatives and commercial organizations included in the Unified State Register of Legal Entities (with the exception of state and municipal unitary enterprises), as well as individuals entered in the Unified State Register of Individual Entrepreneurs and carrying out entrepreneurial activities without forming 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, 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 mutual investment funds), the share of participation owned by one or more legal entities that are not small and medium-sized businesses must not exceed 25%. The last restriction does not apply to business companies, business partnerships, the activities of which consist in the practical application (implementation) of the results of intellectual activity (programs for electronic computers, databases, inventions, utility models, industrial designs, selection achievements, topologies of integrated circuits, production secrets (know-how), the exclusive rights to which belong to the founders (participants) respectively of such business companies, economic partnerships - budgetary, autonomous scientific institutions or being budgetary institutions, autonomous institutions, educational organizations of higher education, as well as legal entities, founders (participants ) which are legal entities included in the list of legal entities approved by the Government of the Russian Federation that provide state support for innovation activities in the forms established by Federal Law No. 127-FZ of August 23, 1996 “On Science and State Scientific and Technical Policy.”

Legal entities are included in this list in the manner established by the Government of the Russian Federation, subject to compliance with one of the following criteria:

Legal entities are open joint-stock companies, at least 50% of the shares of which are owned by the Russian Federation, or business companies in which these open joint-stock companies have the right to directly and (or) indirectly dispose of more than 50% of the votes attributable to voting shares (shares) ), constituting the authorized capital of such business companies, or have the opportunity to appoint a sole executive body and (or) more than half of the composition of the collegial executive body, as well as the opportunity to determine the election of more than half of the composition of the board of directors (supervisory board);

Legal entities are state corporations established in accordance with the Law on Non-Profit Organizations;

The average number of employees for the previous calendar year should not exceed the following maximum values ​​of 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 enterprises; Among small enterprises, microenterprises stand out - up to 15 people;

Revenue from the sale of goods (work, 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, revenue from the sale of goods (work, services) or the 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 said 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 contracts or part-time, taking into account actual time worked, employees of representative offices, branches and other separate divisions of the specified micro-enterprise, small enterprise or medium-sized enterprise;

2) with age pensioners entering work, 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 age pensioners entering work, i.e. about those who for the first time or again (after dismissal) enter into an employment contract with this employer. In this regard, the employer has no right, incl. and with the consent of the employee who is in an employment relationship with him and has reached retirement age, renew the employment contract concluded with this employee for an indefinite period into a fixed-term employment contract. It should be borne in mind that the number of old-age pensioners 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 assignment of a pension, but in accordance with pension legislation has not acquired the right to it or the pension has not been assigned to him due to any other circumstances, he cannot be considered a pensioner, and, therefore, the rules for concluding a fixed-term employment contract provided for commented norm should not be applied to it. The fact that an employee for health reasons can perform work of an exclusively temporary nature must be established by a medical certificate issued in the prescribed manner. This Procedure is currently approved by Order of the Ministry of Health and Social Development of Russia dated May 2, 2012 N 441n “On approval of the Procedure for issuing certificates and medical reports by medical organizations” (see also Order of the Ministry of Health and Social Development of Russia dated April 12, 2011 N 302n, which approved the Procedure for conducting mandatory preliminary and periodic medical inspections (examinations) of workers engaged in heavy work and work with harmful and (or) dangerous working conditions).

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

3) with persons entering work in organizations located in the Far North and equivalent areas, 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 relocation to their place of work in organizations located in the regions of the Far North and equivalent areas, 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, 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 equivalent areas was approved by Resolution of the Council of Ministers of the USSR dated November 10, 1967 N 1029 and is valid today as amended. Resolution of the Council of Ministers of the USSR dated January 3, 1983 N 12 with subsequent additions and changes introduced by the legislation of the Russian Federation;

4) to carry out urgent work to prevent disasters, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances (for example, to eliminate the consequences of a flood, fire). Since the law does not establish a minimum or maximum period for which an employment contract can be concluded under these circumstances, it is determined by agreement of the parties. If the term of the employment contract does not exceed two months, the resulting labor relations are regulated taking into account the specifics established by Chapter. 45 Labor Code (see commentary to Art. Art. 289 - 292);

5) with persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms. So, in accordance with Art. 332 of the Labor Code, election by competition precedes the conclusion of an employment contract to fill the position of a scientific and pedagogical worker in an educational organization of higher education, as well as transfer to the position of a scientific and pedagogical worker. A competition for filling the position of a scientific and pedagogical worker occupied by an employee with whom an employment contract has been concluded for an indefinite period is held once every five years (see commentary to Article 332).

Heads of unitary enterprises are appointed on a competitive basis, with the exception of enterprises included in the List of federal state unitary enterprises, in respect of which a special procedure has been established for the federal executive authorities to make decisions on certain issues of the activities of these enterprises, approved. by order of the Government of the Russian Federation dated June 20, 2011 N 1060-r. The procedure for holding a competition for filling the position of head of a unitary enterprise is established by the Regulations on holding a competition for filling the position of head of a federal state unitary enterprise, approved. Decree of the Government of the Russian Federation of March 16, 2000 N 234;

6) 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 RF, 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 dated 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, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance ( exhibiting) works, the specifics of labor activity of which are established by the Labor Code of the Russian Federation;

7) with managers, deputy managers and chief accountants of organizations. It does not matter what the organizational and legal form and form of ownership of these organizations are: joint stock company, limited liability company, state unitary enterprise, etc.

In accordance with Part 1 of Art. 275 of the Labor Code, the term of the employment contract with the head of the organization is determined by the constituent documents of the organization or by agreement of the parties. Based on this, it should be assumed that the term of the employment contract with the head of the organization is determined by agreement of the parties if it is not established by the constituent documents of the organization;

8) with persons receiving full-time education;

9) with crew members of sea vessels, inland navigation vessels and mixed (river - sea) navigation vessels registered in the Russian International Register of Ships. It should be emphasized that the conclusion of a fixed-term employment contract by agreement of the parties is allowed only with crew members of such sea vessels, inland navigation vessels and mixed (river-sea) navigation vessels that are registered in the Russian International Register of Vessels.

In accordance with Art. 33 of the Merchant Shipping Code of the Russian Federation dated April 30, 1999 N 81-FZ, the following may be registered in the Russian International Register of Ships:

a) ships used for international transportation of goods, registration in the Russian International Register of ships, if they are registered in the registers of ships of foreign states and their age on the date of filing an application for state registration in the Russian International Register of Ships exceeds 15 years;

b) vessels used for transportation and towing in cabotage, provided that the age of these vessels on the date of filing the application for state registration does not exceed 15 years;

c) vessels used for exploration and development of mineral and other non-living resources of the seabed and its subsoil, hydraulic engineering and underwater technical work, as well as to support these works and activities;

d) self-propelled ships with main engines with a power of at least 55 kilowatts, non-self-propelled ships with a capacity of at least 80, built by Russian shipbuilding organizations after 01/01/2010, used for the purposes provided for in Art. 2 Codes.

According to Part 3 of Art. 35 of the said Code, state registration of ships in the Russian International Register of Ships is carried out by captains of seaports, the List of which was approved by Decree of the Government of the Russian Federation dated April 25, 2006 N 583-r.

10) with persons applying for part-time work. In accordance with Art. 282 of the Labor Code, part-time work is the performance by an employee of other regular paid work under the terms of an employment contract in his free time from his main job. Concluding employment contracts for part-time work is permitted with an unlimited number of employers, unless otherwise provided by federal law. Part-time work can be performed by an employee, both at the place of his main job and with other employers. Part-time work for persons under the age of 18 is not allowed, in heavy work, work with harmful and (or) dangerous working conditions, if the main work is related to the same conditions, as well as in other cases provided for by this Code and other federal laws.

The employment contract must indicate that the job is a part-time job (on the procedure and conditions for concluding an employment contract on part-time work, see the commentary to Articles 282 - 288).

4. In addition to the cases expressly provided for in Part 2 of Art. 59, the conclusion of a fixed-term employment contract by agreement of the parties is also permitted 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 can be concluded to fill positions of scientific and pedagogical workers in a higher educational institution. According to Art. 304 of the Labor Code, by agreement of the parties, a fixed-term employment contract can be concluded between an employee and an employer - an individual who is not an individual entrepreneur.

5. In accordance with the general rules for concluding a fixed-term employment contract, established by Art. 58 of the Labor Code of the Russian Federation, a fixed-term employment contract can be concluded either in cases where the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation (Part 1 of Article 59), or by agreement of the parties without taking into account these circumstances in cases provided for by the Labor Code or other federal law (Part 2, Article 59). However, in some cases the Labor Code provides for the conclusion of a fixed-term employment contract without taking into account these general rules. So, according to Part 14 of Art. 332 of the Labor Code, a fixed-term employment contract is concluded with the vice-rectors of an educational organization of higher education. The expiration date of a fixed-term employment contract concluded with the vice-rector cannot exceed the expiration date of the rector’s powers.

This norm is set out in imperative form; therefore, the conclusion of a fixed-term employment contract with these employees is mandatory by virtue of a direct requirement of the law. However, neither by the nature nor by the conditions of performance, work as a vice-rector of a higher educational institution does not relate to work for the performance of which it is impossible to conclude an employment contract for an indefinite period. Thus, by providing for the mandatory conclusion of a fixed-term employment contract with the vice-rectors of a higher educational institution, the legislator showed obvious inconsistency in regulating the relations in question (see commentary to Article 332).

Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract and the procedure for its preparation are strictly regulated, which describes in two parts the conditions for forming with an established group of persons. Categories of citizens are not as important as the types of activities that can be performed under fixed-term contracts with companies. Also, both parts of Article 59 of the Labor Code of the Russian Federation are devoted to a list of works that are not limited. Non-exhaustive regulations are presented in other legislative acts that are not defined by this article of the Labor Code of the Russian Federation.

The nature of fixed-term types of employment

A complete list of types of such activities is in Part 1 of Art. 59 reflect their classification and essence in the second part, so when signing agreements you can be guided by the first, relying on the second.

Art. 59 of the Labor Code also provides for the main 11 types of positions according to the types of provisions when it is necessary to conclude a fixed-term contract with an employee:

1. In the case where the employee is a substitute in the company. There are situations when a person replaces another due to special circumstances, and in these cases the fulfillment of temporary obligations requires formal reflection. For this purpose, a fixed-term contract is concluded for the period when it is necessary to replace a colleague or transfer affairs to an acting one. It is especially important to pay attention to the wording of the position: if it is not vacant, but is occupied by another person temporarily, then the date of the period is indicated until the person is reinstated or a real employee is found for the vacant position. This is necessary when the operation of the enterprise is impossible without the position of a specific person.
2. Full-fledged contracts that do not provide for the use of other people's resources. Let's say that seasonal work is carried out on behalf of the company and this requires hiring several workers for a period of two to six months. For this period, you need to conclude a fixed-term contract with the employee. Such situations include construction, temporary placement of employees, etc. It may also depend on natural conditions, when the excess of labor in time cannot be six months according to Article 293 of the Labor Code of the Russian Federation.
3. Separately, there is a position with temporary employment, which lasts up to 2 months. Such employees are hired on a fixed-term contract so that they have time to complete an annual report or go on an urgent business trip.

This list is legally closed. The Labor Code provides comprehensive information about a fixed-term employment contract. Therefore, before signing such a document, you need to carefully study the legislation.

You cannot conclude an agreement that will provide for work that requires 3-4 months to complete, but for the employer it is permanent. For example, you cannot constantly hire an incoming accountant under a fixed-term contract when the position is required on an ongoing basis. This gives rise to staff turnover at the enterprise, which arouses the interest of tax and labor inspectors.

Separately, it is worth mentioning seasonal work. It is permissible to employ workers in such types of activities only if the type of work is included in the list of urgent seasonal ones. There are special lists that the employer knows about, and they must be followed.

If a particular position has nothing to do with seasonal employment, the company is not entitled to provide a position on a fixed-term contract. In these cases, the work period should be established by specifying the work rate limits in the contract. This is usually achieved by entering into an annual agreement between both parties with the right to change the terms. When all the work is done, the managing person can terminate the employment agreement by mutual consent.

There are cases when employment contracts can be concluded on a fixed-term basis for more than six months, but subject to seasonality, which provides for such employment. Typically, these are positions that are established at the federal level, and then a regular fixed-term contract can be extended or modified.

The extension provides for an additional period, and the type of work is noted as temporary-seasonal. The manager of such activities must notify the working staff in advance, since the urgency for seasonal work that exceeds 6 months cannot be extreme and abrupt - there is a plan that must be followed. And since long-term plans provide for a change of personnel, it means that the fact of a constant shortage of temporary employed personnel is known in advance.

Such circumstances are possible in the case of employment under a social collective agreement on industry events in the timber industry. The following and similar services are considered seasonal jobs with annual employment:

• the logging industry, when resin, spruce and barras are mined;
• timber rafting, when leftovers and waste are sold. This includes temporary types of work such as primary and raft rafting, sorting on water, loading and unloading wood onto a ship. In this case, they are guided by Article 293 of the Labor Code of the Russian Federation;
• When a person is employed in a job that is not included in the list of federal employment services, sanctions may be imposed on the enterprises responsible for hiring and firing people, and the movement of personnel in employment conditions at the federal level.

Such situations also include those when people are sent under a contract to serve abroad.

If we talk about business trips and fixed-term contracts, the only difference is that in the first case, individuals perform work abroad that is supposed to be on behalf of the enterprise where the person is employed. In the second case, when a fixed-term contract is really needed, long trips are discussed, for a period of 1 - 3 years or more, possibly with subsequent transfer to another company. It does not matter for whom the work is performed.

The main thing is the conclusion of a contract based on Article 338 of the Labor Code of the Russian Federation. In addition, this type of travel may involve expanding the company's base when it enters the international market, and there is a need to send a person to fulfill all the conditions.

For example, a base or factory is being built, and a company employee must be present there for almost a year. Then his responsibilities are different, and they are supplemented in the fixed-term contract with various entries and additions.

Under other legal provisions, staff are not relieved of their rights and responsibilities. They are also entitled to annual leave, paid sick leave and other benefits provided for a certain category of citizens.

Termination of this type of contract occurs automatically when its terms expire. This can be done ahead of schedule only for previously completed work or in case of dismissal due to an article or at will.

Retirement is also provided for if at that moment the pensioner is on such assignments. He draws up all the documents, after which the contract is re-signed with him, indicating new conditions. As a rule, they are duplicated.

The commentary to paragraphs 338 of the article also states that types of activities that require additional obligations from a person should not necessarily be reflected in temporary contracts, because additional obligations can be regarded as overtime.

However, if we talk about seasonality and the temporary need to be absent from work, in order to exclude the fact of absenteeism, it is best to insure yourself with such fixed-term contracts. This will be beneficial for both parties, since the employee will not be fired (if anything happens) for absence from the workplace, and the employer will not be fined for non-compliance of documents with the positions occupied by the staff.

There are some enterprises that provide only seasonal employment of personnel. Contracts there cannot be concluded for a year or more. For example, the situation with children's camps, when they operate only during the summer holidays.

The same can be said about recreation centers, resort hotels, etc., where recruitment of personnel is provided exclusively on temporary terms. Having hired a person for a maximum of six months, there will already be a serious violation, since it is no longer possible to fire him, and the employer is obliged to provide a salary for the fall, when there are no more responsibilities.

In such cases, only fixed-term contracts are used:

• there are conditions that meet all the requirements of temporary work;
• the enterprise really only operates in the summer or during a certain season;
• management assesses staff work as temporarily necessary;
• management does not need staff year-round.

Situations should not be confused with ski resorts or beaches, where seasonality may vary depending on the climate and type of enterprise management.

If competitions, training of athletes, and workers are constantly held on the seas, they can be there under regular contracts. If we are talking about swimming pools, whose license is valid for only 3-4 months, it means that a private or urban enterprise cannot hire people for a period of six months. These types of companies also include other companies whose areas are affected by the seasonality of work.

The agreement ceases to be valid at the end of the period for which it was concluded. At the same time, it is unacceptable for responsibilities to be transferred to the powers of other persons, since companies, taking into account such conditions, cannot carry out such turnover of documents and personnel. The only person who remains permanently employed is the director and accountant, who can often act as one person.

It is also impossible to fire a person before the termination of a fixed-term employment contract due to the decision to hire someone else, a more competent employee. This is a temporary, fixed-term position, and it is urgent specifically for the company, which is obliged to either consider hiring options in advance, or agree to what the employment center offers. In similar situations, you should refer to Resolution of the Plenum of the Supreme Council No. 2 of 2004.

There are situations when contracts with a duration are concluded for two or more months, however, the work can be completed in a few days or weeks. This is only feasible if it is explained to the person in advance that his activity consists, for example, of installing a security system in another subsidiary, and she is ready to take him on for 2-3 weeks, but by law a contract must be drawn up for 2 months.

In such cases, at the initiative of both parties, a fixed-term employment contract is concluded under Art. 59 of the Labor Code of the Russian Federation, which describes the type of work and the period required to translate the planned work plan into reality.

This is a separate type of citizen who can get a job as an apprentice or student. If in the first case, students can work up to eighteen years in camps or other enterprises of this type, then students can be constantly employed.

For example, a person is a correspondence student, but he decided to get a job with the right to attend sessions and go on vacation. Thus, if he joins a company as a main employee, he is provided with the usual type of contracts. If he works on behalf of the university in connection with advanced training, internship or for professional growth, he is hired on a fixed-term contract.

This is also stated in the Labor Code in Art. 59, where the work of such personnel is regarded as an internship. If a person is actually sent for an internship to another branch of the company, another city or country, only the length of stay at the company and the expiration date of the contract change. If an extension is required, the contract is renegotiated, or, if conditions allow, extended.

This practice is often found in educational institutions, when teachers and lecturers are forced to take wages from other enterprises. This can be explained as temporary employment or urgent employment measures. To put it bluntly, almost every teacher works this way, but there are exceptions.

For example, a university urgently needs a dean of a faculty or a researcher in a chemistry classroom. Then a suitable person is selected from the staff who has the appropriate education, and until a new employee is found, the university will cooperate under a fixed-term contract with an interim person for the missing personnel unit.

But there are some features:

1. Do not confuse temporary obligations and a replacement position.
2. Replacing personnel is not a transfer of affairs, but a temporary permission to manage them.
3. As soon as a new person is found, all matters are transferred to her on behalf of the previous employee, and not the one who performed the deputy position.

According to Art. 59, according to the Labor Code of the Russian Federation, a new team member can first get a job under a fixed-term contract (due to the urgent need for personnel with the right not to undergo an internship or probationary period), and then switch to full-time employment for the contract period.

Full-time employment under a fixed-term contract is a part-time working day with 100% pay. A fixed-term contract limits the rights of employees who have the responsibilities of other competent persons and cannot contain conditions that would indicate incomplete payment.

In fact, this is not possible, which is why full-time employment applies to both types of contracts. At the same time, a fixed-term agreement only allows you to come to work temporarily in order to leave at any time if you don’t like something, because it is the company that needs personnel, and the employee (as if giving in and making adjustments) agrees to the position on his own conditions.

In practice, everything is different, since people are afraid of temporary circumstances, temporary work and salary. However, this may only be “scary” for medical students who are forced to do residency training. This is not the same as a master's degree at other institutions, when you can take an academic leave or quit studying altogether. A doctor is required to go into practice to consolidate knowledge, since theory and practical experience are associated with decades of study, and a manager can apply his knowledge in a year or two. Of course, sick leave, vacation and pregnancy are not excluded, but this is reflected in study as a work activity.

These types of professions include the industrial sector and the educational sector, as well as medicine, where you constantly need to improve your skills. Here practice and experience are reflected in work and knowledge, and often study or travel is necessary as part of industrial relations responsibilities to improve the quality of services. Otherwise, additional education can be a plus, but not for “budget” areas of activity. Such personnel will always work under fixed-term contracts, especially if the activity involves business trips lasting several years.

Below we will dwell in more detail on the most common grounds from the first part of this list (that is, we will consider cases when a fixed-term employment contract can be concluded at the initiative of the employer).

Temporarily absent employee

Perhaps, in practice, the most common situation in which it is possible to conclude an employment contract for a certain period is hiring to perform the duties of a temporarily absent employee. In this case, the job remains with the “main” employee. But while he is not doing his job, you can temporarily take another person in his place (Part 1 of Article of the Labor Code of the Russian Federation, letter of Rostrud dated November 3, 2010 No. 3266-6-1).

The Labor Code does not specify the reasons why the “main” employee may be absent from the workplace. Therefore, there can be absolutely any reasons. For example, temporary disability, leave (not only to care for a child, but also annual paid or unpaid leave), temporary transfer based on a medical certificate to another job, the employee’s performance of state or public duties, undergoing a medical examination or advanced training outside of work. work.

Let us note one more important point: it is impossible to draw up a fixed-term employment contract under which a “temporary” employee will alternately replace several absent “core” employees (for example, during their vacations). This is due to the fact that an article of the Labor Code of the Russian Federation provides for the execution of a fixed-term employment contract for the duration of the duties of an absent employee, that is, we are talking about a specific employee and the performance of his labor functions. Therefore, if it is necessary to organize “safety net” during the holidays of the “main” employees, then each time you will have to draw up a new contract (i.e., terminate the fixed-term employment contract when the “main” employee leaves and enter into a new one during the absence of another employee).

As noted above, on the basis of an article of the Labor Code of the Russian Federation, in a fixed-term employment contract it is necessary to directly indicate that the contract is concluded for a temporary period, and provide the corresponding reason from the list established by the article of the Labor Code of the Russian Federation. In the case under consideration (when hiring for the duration of the duties of an absent employee), it is recommended to include the following wording in the contract:

And in the section (clause) of the employment contract dedicated to the duration of its validity, indicate: “until the accountant Olga Borisovna Nikonova goes to work.” A similar entry is made in the “by” column of the employment order.

Temporary work

The next situation with which the article of the Labor Code of the Russian Federation connects the possibility of concluding a fixed-term employment contract is the performance of temporary (for a period of up to two months) work.

Features of concluding a fixed-term contract

A specific list of temporary work is not established in the legislation. The above means that it is possible to conclude a fixed-term employment contract on this basis to perform virtually any work, if it is carried out within no more than two months. This work can be either for a specific position or specialty (for example, you can enter into a fixed-term employment contract with a driver for the transportation of goods by car; the specialty “driver” will be indicated in the contract), or not tied to such (for example, the contract will only indicate type of work “territory cleaning”).

It is important to note that, as a general rule, for persons with whom an employment contract has been concluded for a period of up to two months, a probationary period is not established (Article of the Labor Code of the Russian Federation).

What to write in the contract and in form No. T-1

The list of seasonal work, as well as their maximum duration, are established by industry agreements (Part 2 of Article of the Labor Code of the Russian Federation). Also for these purposes, you can be guided by the List of Seasonal Works (approved by Decree of the People's Commissariat of Labor of the USSR dated October 11, 1932 No. 185) and other documents (for example, Decrees of the Government of the Russian Federation dated 04/06/99 No. 382 and dated 07/04/02 No. 498, Resolution of the Council of Ministers of the RSFSR dated 04.07.91 No. 381).

As we can see, in order to conclude a fixed-term employment contract on this basis, it is necessary that the seasonal nature of the work be officially confirmed. That is, the relevant type of work must be included in an industry agreement or regulation. Moreover, the term of such an agreement cannot exceed the term of the season established by the same document.

However, a probationary period for those hired for a period of up to two months is not assigned. If the employment contract is concluded for a period of two to six months, then the probationary period can be up to two weeks (Article of the Labor Code of the Russian Federation).

What to write in the contract and in form No. T-1

It should be noted in the employment contract that it is concluded for a season. Since the length of the season depends on natural and climatic conditions, it is not necessary to indicate a specific end date of the employment contract (Part 4 of Article of the Labor Code of the Russian Federation). Accordingly, the wording of the employment contract may be as follows:

The same wording must be transferred to the employment order (Form No. T-1). Moreover, in the “by” column of this order, the expiration date of the employment contract can be indicated not only by the specific end date of the season, but also by the occurrence of an event (for example, write “end of the season”).

Work outside the normal course of business of the employer

The next legal basis for concluding a fixed-term employment contract is the performance of work beyond the normal activities of the organization.

Features of concluding a fixed-term contract

Directly in the article of the Labor Code of the Russian Federation, only an approximate list of such works is given. This includes reconstruction, installation, commissioning and other similar work. When using such a basis for concluding a fixed-term employment contract, it is important that the type of work really goes beyond the normal activities of the organization. In other words, it must be some kind of irregular work that is unusual for the company. That is why reconstruction, installation and commissioning work are given as examples of such work, that is, those works that are performed from time to time and not constantly.

On this basis, a fixed-term employment contract can be drawn up for a period not exceeding five years (clause 2, part 1, article of the Labor Code of the Russian Federation). The one-year limit established in paragraph 6 of part 1 of article of the Labor Code of the Russian Federation applies to employment contracts that are concluded in connection with a temporary expansion of production or the volume of services.

What to write in the contract and in form No. T-1

The employment contract reflects the temporary nature of the work, the date of its end or the event with which the end of the work is associated, as well as the content of the work or the employee’s labor function. Accordingly, the following formulation can be used:

“In accordance with Part 1 of Art. of the Labor Code of the Russian Federation, this employment contract is a fixed-term one and was concluded to perform obviously temporary work on the reconstruction of the premises of workshop No. 3, beyond the scope of the employer’s normal activities.”

In the order for employment (form No. T-1), the nature of the work is indicated: “to carry out work on the reconstruction of the premises of workshop No. 3.” In the “by” column of this order, the date of termination of the employment relationship is indicated or the event with which the completion of the work is associated is displayed (for example, “before the completion of the reconstruction of the premises of workshop No. 3”).

Deliberately temporary expansion of production

Temporary expansion of production or the volume of services provided is named by the legislator as the basis for concluding a fixed-term employment contract in the same paragraph of the article of the Labor Code of the Russian Federation as the performance of work that goes beyond the normal activities of the company. However, for the case of a temporary expansion of production (or the volume of services provided), additional restrictions have been established, which allows us to speak about the independence of this basis.

Features of concluding a fixed-term contract

When using this basis, it is important that the employer is aware in advance of the temporary nature of the expansion of production (see the rulings of the Supreme Court of the Republic of Karelia dated 08/19/14 No. 33-3257/2014 and the Moscow City Court dated 01/20/14 No. 33-1433). For example, a deliberately temporary expansion of production may be associated with the conclusion of a contract for the supply or performance of work. Due to the direct indication of the article of the Labor Code of the Russian Federation, a temporary employment contract on this basis can be concluded for a period of no more than one year.

Similar conditions apply in the case of concluding a fixed-term employment contract on the basis of a temporary expansion of the scope of services provided: the employer must be aware in advance of such an expansion of the scope of services and the term of such a contract cannot exceed one year.

What to write in the contract and in form No. T-1

Since the expansion of production or the volume of services provided must be obviously temporary, we recommend indicating this directly in the employment contract. For example, you could use the following wording:

“In accordance with Part 1 of Art. Labor Code of the Russian Federation, this employment contract is fixed-term and was concluded in connection with a temporary expansion of the scope of services provided by the employer for changing carpets in the administration building of the city of Kolomna (state contract dated August 20, 2016) for a period until March 15, 2017.”

Features of concluding a fixed-term contract

In practice, this basis is often used by employers who need to attract various specialists to fulfill various contracts (including state and municipal ones). However, it must be taken into account that judicial practice proceeds from the fact that, on this basis, it is permissible to conclude an employment contract for the duration of the state contract only if the subject of the contract goes beyond the normal activities of the employer (see, for example, the appeal ruling of the Moscow City Court dated 01/20/14 in case No. 33-1433). If the state contract is related to the main activity of the employer, the courts side with the employees and find no grounds for concluding a fixed-term employment contract (see, for example, the appeal ruling of the Rostov Regional Court dated 08.08.13 in case No. 33-9919/2013).

It must be remembered that the basis in question can be used for concluding a fixed-term employment contract only if the deadline for completing the work cannot be established in advance. This must also be taken into account when deciding on hiring employees (including for performing work under government contracts concluded by the company).

What to write in the contract and in form No. T-1

As mentioned above, the use of this basis is possible only if the completion date of the work cannot be determined by a specific date. Consequently, in the employment contract and in the order for employment (Form No. T-1), an event will always be indicated as the completion date of the work.

The employment contract must note its urgent nature and reflect the specific type of assigned work for which the employee is hired. For example, it could be worded like this:

“In accordance with Part 1 of Art. Labor Code of the Russian Federation, this employment contract is fixed-term and was concluded due to the fact that the completion date of repair work in the premises of workshop No. 3 cannot be determined by a specific date. The employee is hired for the position of category 3 painter.”

In the employment order, in the column “Conditions of employment, nature of work,” you can enter, for example, the following phrase: “to carry out painting work on external and internal surfaces (ceiling, walls, floor) of workshop No. 3.” And in the “by” column of this order, you should indicate: “until the signing of the act of acceptance of painting work.”

How to fill out a work book

In conclusion, we note that the urgent nature of the employment relationship (for any of the reasons listed above) does not in any way affect the procedure for filling out the employee’s work book. Thus, it should not indicate that the contract is concluded for a certain period. After all, this is not provided for either by the Labor Code or by the Instructions for filling out work books (approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69

Gavrikova I. A., senior scientific editor of the magazine "Salary"

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 open-ended 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 contracts. According to Part 1 of Article 58 of the Labor Code of the Russian Federation, contracts can be concluded:

For undefined period;

for a certain period, but not more than five years. Let's talk in more detail about a fixed-term employment contract.

When they conclude

In some cases, the nature of the work to be performed or the conditions for its implementation do not allow formalizing an employment relationship with an employee for an indefinite period. Therefore, a fixed-term employment contract is concluded with him.

The grounds for concluding a fixed-term employment contract are listed in Part 1 of Article 59 of the Labor Code. And Part 2 of Article 59 of the Labor Code of the Russian Federation specifies cases 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 the employment relationship is exhaustive. This is also stated in the letter of Ros-Labor dated December 18, 2008 No. 6963-TZ.

Table.

*The list of jobs, professions, and positions of creative workers was approved by Decree of the Government of the Russian Federation of April 28, 2007 No. 252.

If the specified grounds are absent 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 multiple times without a temporary break, if we are talking about employees performing the same job function. This, in particular, is stated in paragraph 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution No. 2). Taking into account the circumstances of the case, such contracts can be recognized as concluded for an indefinite period.

We draw up a fixed-term employment contract

Now let's move on directly to drawing up 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, you need to indicate for what reasons it is concluded with the 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 the 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, this is:

place of work;

labor function;

work start date;

salary;

operating mode;

compensation;

nature of the work;

condition on compulsory social insurance, etc.

How to determine the terms of the contract

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 pay special attention to it. How to formulate a term condition? It all depends on the circumstances of the conclusion of the contract. Let's look at them.

The expiration date of the contract has been determined. If a specific date is set for the end of the employment contract, it must be written down in the document. Let us remind you that a fixed-term contract can be concluded for a period not exceeding five years.

In particular, the expiration date of a fixed-term employment contract is indicated in the case when the employing organization is created to perform specific work. Accordingly, employees will be hired for a period not exceeding their duration. This also applies to seasonal work (if the specific end date of the season is known) and elective positions.

Let's look at how an entry about a deadline can be formulated using an example.

Example 1

L.D. Smekhov got a job at Veselye Gorki LLC (amusement park) as a janitor. The park is open to visitors from May 1 to October 1. The employer entered into a fixed-term employment contract with him for the period of operation of the park. How to reflect the term condition in a document?

Solution

The clause of the contract that states the term of its validity will look like this:

"2. Contract time

2.3. The contract was concluded for five months for the period of operation of the amusement park from May 1 to September 30.

The expiration date of the contract has not been determined. In some cases, it is impossible to determine the end date of an employment contract. Here are some typical situations when the contract specifies a condition regarding its validity period, and not a specific date. Thus, concluding a fixed-term employment contract is possible:

• in connection with the employee going on maternity leave and child care leave;

employee illness;

• performing seasonal work.

In these cases, the end of the employment contract is associated with a specific event, for example, the employee’s return to work after a long illness. In this regard, Resolution No. 2 provides the following explanations. If a fixed-term employment contract is concluded to perform a specific job, and the exact date of its completion 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 pastry chef V.A. Kalacheva has been undergoing treatment in a hospital since August 1, 2010. With P.L. Pryanishnikova signed a fixed-term employment contract. How will the term of the contract be spelled out if it is unknown when exactly V.A. Will Kalacheva return to her workplace?

Solution

In the employment contract with P.L. Pryanishnikova should have the following wording:

"2. Contract time

2.1. The Agreement comes into force on the date of its conclusion 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 confectioner V.A. Kalacheva, who retains her job.

2.4. The validity period of the contract is determined until the return of the main employee V.A. Kalacheva.

2.5. If the main employee receives V.A. Kalachev’s disability with limited ability to work or dismissal, the Employer extends this contract 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 probationary period of more than two weeks cannot be established (Article 70 of the Labor Code of the Russian Federation). In this case, 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 trial cannot exceed two weeks (Article 70 of the Labor Code of the Russian Federation).

Let us remind you that according to Article 70 of the Labor Code of the Russian Federation, a test for hiring is also not established:

• pregnant women and women with children under the age of one and a half years;
• persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;

under the age of 18;

• those who have graduated from state-accredited educational institutions of primary, secondary and higher vocational education and who are entering work for the first time in their specialty within one year from the date of graduation from the educational institution;

those elected to an elective position for paid work;

• invited to work by way of transfer from another employer as agreed between the employers;
• to other persons in cases provided for by the Labor Code, other federal laws, and a collective agreement.

The probationary period cannot 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 move on directly to the design of the document. As we 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 the timing of its expiration. Let's look at the preparation of this document using an example.

Example 3

Civil engineer E.V. Nezabudkin was hired by Project-Design LLC, created specifically to service the international youth sports games “Sportlantida”, planned in Volgograd in August 2010. Preparations for them began in January 2010, construction work should be completed on July 15, 2010. The organization will operate until July 31, 2010. With E.V. The Nezabud-kins need to conclude a fixed-term employment contract for the period of existence of this organization. How to compose it?

Solution

The fixed-term agreement is shown below.

Entry in the work book during employment

According to paragraph 4 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225, information about the employee, the work he performs, transfer to another permanent job, dismissal, and also indicate the grounds for termination of the employment contract and enter information about rewards for success in work.

Accordingly, if a fixed-term employment contract has been concluded with an employee for any period, it is necessary to make an entry about this in the work book or create a new one if there is none. The employer must make a record of hiring in the conscript’s work book if he has worked for him for more than five days and this work is the main job for this employee. This is the requirement of paragraph 3 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, 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 a fixed-term employment contract has been concluded. Also, attention is not focused on the fact that the employee, for example, replaces an absent specialist. It is enough to make a standard entry, for example: “Hired as a mechanic,” indicating the serial number of the entry, the date, as well as the details of the hiring order. This, in particular, is stated in the letter of the Federal Service for Labor and Employment dated 04/06/2010 No. 937-6-1.

Vacation of a conscript employee

An employee who has entered into a fixed-term employment contract is generally granted annual paid leave while maintaining his 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 an employee has worked for less than a year, the duration of leave is calculated in proportion to the time worked.

The right to use vacation for the first year of work arises for the employee after six months of continuous work with this employer (Part 2 of Article 122 of the Labor Code of the Russian Federation).

Vacation payment is made based on the average wage, which is calculated according to the rules established in Article 139 of the Labor Code, as well as in the Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation dated 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 valid reasons, an employee, on the basis of his written application, may be granted leave without pay for the duration established by the labor legislation of the Russian Federation and the internal labor regulations of the employer.

Extension of a fixed-term employment contract

In what cases can a fixed-term employment contract be extended? Let's consider several situations.

Mandatory contract extension

The validity of a fixed-term employment contract can be necessarily 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 pregnancy.

Prolongation by agreement of the parties

Part 4 of Article 58 of the Labor Code says the following. In the event that neither party requested termination of the fixed-term employment contract due to its expiration and the employee continues to work, the condition on the fixed-term nature of the employment contract loses force. After this, the employment contract is considered concluded for an indefinite period. Is it necessary to document the fact of changing the status of a fixed-term contract to an open-ended one?

In fact, the change in contract status occurs automatically. After this, the fixed-term employee is subject to labor law norms that are provided for employees who have entered into permanent employment contracts. For example, such an employee can no longer be dismissed on the basis of the expiration of the employment contract (Clause 2 of Article 77 of the Labor Code of the Russian Federation).

However, in this case, it is advisable to prepare 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 can be worded as follows: “State clause No.... in the following wording: “This employment contract is concluded for an indefinite period.”

Fixed-term contract with a pensioner

Employers often enter into fixed-term contracts with pensioners. At the same time, many believe that this is the only form of relationship with this category of employees. However, it is not. The Constitutional Court's Ruling No. 378-O-P dated May 15, 2007 states that when concluding an employment contract with a pensioner, the term can only be set by agreement of the parties. A similar conclusion is contained in paragraph 13 of Resolution No. 2.

Consequently, employment contracts can be concluded with retired employees for an indefinite period. There is also no need to dismiss an employee who has received pensioner status and enter into 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

The employment contract with the conscript employee is terminated due to the expiration of its validity period. 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 employee is notified in writing of the termination of the employment contract upon expiration of the term at least three calendar days before dismissal. Only in the case where a fixed-term contract is concluded with an employee for the period of replacing an absent specialist, the employer may not warn him in advance.

The notification is drawn up in any form. It must indicate the termination date of the contract and the justification (for example, in connection with the completion of work).

Order of dismissal

After the employee is notified of the end of the employment contract and there are no obstacles to its termination, the manager issues an order to dismiss the employee. For this purpose, there are two unified forms No. T-8 and T-8a (in case of dismissal of several employees), which were approved by Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1 “On approval of unified forms of primary accounting documentation for recording labor and its payment.”

A fixed-term employment contract can 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);
• employee initiative (Article 80 of the Labor Code of the Russian Federation);
• initiative of the employer (Article 81 of the Labor Code of the Russian Federation).

Entry in the work book

On the day of termination of the employment contract, the employee must be given a work book (Part 4, Article 84.1 of the Labor Code of the Russian Federation).

According to clause 5.2 of the Instructions for filling out work books, approved by Resolution of the Ministry of Labor of Russia dated October 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, an entry about dismissal 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 is terminated 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 to be the next working day following it.

In the event of 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: “Dismissed due to the expiration of the employment contract, paragraph 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 work book record book and their inserts in the form approved in Appendix 3 to Resolution of the Ministry of Labor of Russia No. 69 dated October 10, 2003, and on the last page of the personal card, the unified form of which No. T-2 was adopted by the Resolution Goskomstat of Russia dated January 5, 2004 No. 1.

If temporary disability coincides with the expiration of a fixed-term contract

If an employee is on sick leave at the time his contract expires, the fixed-term employment contract will not be renewed. The employee is dismissed on general grounds. However, sick leave must be paid. The employer is obligated to do this by Article 183 of the Labor Code of the Russian Federation. It states that upon the occurrence 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 maternity” states that temporary disability benefits are paid to insured persons not only during the period of employment agreement, but also in cases where illness or injury occurred within 30 calendar days from the date of termination of its validity.

Taxation and payments upon dismissal

Labor legislation requires the employer, on the employee’s last working day, to pay him wages for the time 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 pay not provided for in parts 1-3 of article 178 of the Labor Code of the Russian Federation, but also increased amounts of severance pay.

Upon dismissal, an employee is paid wages for the time worked, and in some cases, severance pay.

The first two payments are subject to:

Personal income tax (clause 1 of article 210 of the Tax Code of the Russian Federation);

• insurance contributions (Clause 1, Article 7 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds”).

Amounts of wages and compensation are included in the taxpayer’s expenses for labor costs (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 accrual, accounting and expenditure of funds for the implementation of compulsory social insurance against accidents at work and occupational diseases, approved by Decree of the Government of the Russian Federation dated March 2, 2000 No. 184).

Compensation is not subject to contributions for injuries (clause 1 of the List of payments for which insurance contributions are not charged to the Social Insurance Fund of Russia, approved by Decree of the Government of the Russian Federation dated July 7, 1999 No. 765).

Severance pay within the limits of the norms is not subject to personal income tax, insurance contributions (subclause “e”, clause 2, part 1, article 9 of the Federal Law of July 24, 2009 No. 212-FZ), and is not subject to contributions for injuries (clause 1 of the List of payments , for which insurance premiums are not charged to the Federal Social Insurance Fund of Russia), reduces the taxable base for income tax as part of labor costs (clause 9 of Article 255 of the Tax Code of the Russian Federation).

In accounting, wages, severance pay and compensation for unused vacation are classified as expenses for ordinary activities (clause 5 of PBU 10/99).

The accrual and payment of them to the employee is reflected in the following entries:

DEBIT 20 (23, 25, 26, 29, 44) CREDIT 70- payments are accrued to the employee upon dismissal;

DEBIT 70 CREDIT 68 subaccount “Personal Tax Payments”- personal income tax is withheld from payments that are subject to this tax;

DEBIT 70 CREDIT 50 (51)- payments were issued (transferred) to the employee.

For more information about everything related to seasonal work, read the articles “Worker for the season // Salary, 2010, No. 7.” Samples of filling out documents are also provided there. - Note. ed.

A fixed-term employment contract is concluded:

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

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

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

with persons sent to work abroad;

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

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

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

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

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

with persons sent by employment services to temporary work and public works;

with citizens sent to perform alternative civil service;

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

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

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

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

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

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

with creative workers of the media, cinematography organizations, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers, approved by the Government of the Russian Federation Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations;

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

with persons receiving full-time education;

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

with persons applying for part-time work;

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

Commentary to Art. 59 Labor Code of the Russian Federation