In what case is a fixed-term employment contract concluded. Fixed-term employment contract: with whom and when is it concluded

In Russia, when a citizen finds a job in an organization or an individual entrepreneur, the legislation provides for the mandatory conclusion of an employment contract. Such an agreement can be concluded without specifying the period of its validity - this is an agreement for an indefinite period. As well as Russian legislation provides for the conclusion of fixed-term employment contracts. Such contracts are not always allowed to be concluded. Therefore, employers should figure out by whom, when and for how long a fixed-term employment contract can be signed, whether it can be changed, terminated or made indefinite. And also to study all the pros and cons of a fixed-term employment contract.

Fixed-term employment contract: concept, features

To begin with, let's define how a fixed-term labor contract differs from a contract concluded for an indefinite period, and what they have in common.

Art. 58 of the Labor Code of the Russian Federation establishes that if the term of its validity is not indicated in the employment contract, then it cannot be classified as fixed-term employment contracts. Russia has not established (as, for example, in Japan) the procedure for concluding a life-long employment contract. However, our labor legislation is focused on protecting the labor rights of employees.

That is why the employer cannot conclude a fixed-term employment contract with an employee solely at his own request. Labor Code in Art. 59 of the Labor Code of the Russian Federation determines in which cases it is necessary to conclude a fixed-term employment contract, and when this is permissible by agreement of the parties.

The differences between a fixed-term employment contract and a regular one are due to the reasons for their conclusion and the duration

It should be noted that a fixed-term employment contract, in terms of its main characteristics, aimed at protecting the labor rights of employees, does not differ from a contract concluded for an indefinite period.

Most important quality fixed-term employment contract is that this contract has all the basic qualities of an employment contract. Such an agreement must contain all the main characteristics specified for an employment contract, Art. 56 of the Labor Code of the Russian Federation. The fixed-term employment contract fixes the mode of work and rest, the employee's labor function, working conditions, payment terms, social insurance etc.

For a fixed-term employment contract, all essential conditions, prescribed in the usual TD

What are the grounds for concluding a fixed-term employment contract?

Russian legislation provides for two options when it is possible to conclude a fixed-term employment contract:

1. A fixed-term employment contract is concluded when an employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be performed or the conditions for its performance. These cases are provided for by part one of Article 59 of the Labor Code of the Russian Federation.
2. A fixed-term employment contract may be concluded by agreement of the parties to the employment contract without taking into account the nature of the work to be done and the conditions for its implementation. This is permissible in cases where the temporary nature of the employment contract cannot significantly violate the labor rights of the employee. Such cases are provided for by part two of Article 59 of the Labor Code of the Russian Federation.

The grounds for concluding a fixed-term employment contract are set out in Art. 59 Labor Code of the Russian Federation

Disadvantages and advantages of a fixed-term employment contract

The conclusion of a fixed-term employment contract can have pros and cons for both the employee and the employer.

Employee Disadvantages:

• cooperation with the employer will inevitably end at some point;
• simplified dismissal procedure (after the end of the contract period or after the work is completed);
• reduced dismissal period: notification 3 days before the end of work or a day before the main employee leaves (Article 79 of the Labor Code of the Russian Federation);
• if the text of the contract was drawn up incorrectly, the employee has a chance to transfer urgent cooperation to indefinite cooperation in court.

Cons for the employer:

• the pregnancy of an employee on a temporary contract makes it impossible to dismiss her before childbirth (except in the event of liquidation of the company);
• if the employer did not warn the employee in time about the expiration of the contract, this contract automatically takes on an unlimited character;
• if the contract is not executed correctly, the dismissal of an employee is illegal, therefore, by a court decision, he is reinstated in his position, which causes great inconvenience, especially if a temporary employee was hired during the absence of the main one.

In addition to direct disadvantages, for the employer, the possibility of hidden problems can be noted.

Extremely important correct compilation fixed-term employment contract. Missed nuances can lead to the fact that the contract will be considered indefinite:

• it is unacceptable to draw up several fixed-term contracts with one employee in a row if the labor function specified in the contract does not change;
• the text of the contract must indicate the reason for its preparation (Article 57 of the Labor Code of the Russian Federation);
• The end date of the contract must be specified.

The benefits for the employee can be considered that he has entered into a formal employment contract, albeit for a limited period. Under a fixed-term contract, the employee will enjoy the same labor and social rights as under an indefinite one.

The advantage of a fixed-term contract for the employer can be considered that when carrying out temporary work, the company does not need to expand the staff. Upon dismissal of a permanent employee, you will have to pay compensation associated with a reduction in staff, and the employment of an employee in a temporary position will avoid unnecessary costs.

Video: if you signed a fixed-term contract, what awaits you

For how long can a fixed-term employment contract be concluded

A fixed-term employment contract is concluded for no more than five years (Article 58 of the Labor Code of the Russian Federation).

The urgent TD should describe the reason for this type of recruitment.

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

The procedure and rules for registration under a fixed-term employment contract

The procedure and rules for registering an employee for work under a fixed-term employment contract practically do not differ from registration under an open-ended contract.

The initial document for hiring for a temporary job is usually an employee's application addressed to the head of the company or individual entrepreneur. After the employer puts a work visa on the application, the employer's personnel department prepares a draft fixed-term employment contract.

The applicant for the conclusion of an employment contract must prepare a package of documents for the conclusion of the contract.

Necessary documents for concluding a fixed-term employment contract

The following documents are required from the employee:

• passport of a citizen of the Russian Federation or a document replacing it;
• insurance certificate of state pension insurance (SNILS);
• document on special education if it is supposed to conclude an agreement for the performance of work requiring a certain qualification;
• document of military registration (for military persons liable for military service);
• a medical book, if it is necessary for the nature of the work (trade, education, public catering, etc.);
• for a minor employee under the age of 16 - the written consent of the parent (guardian).

According to the Labor Code, an employer does not have the right to request a TIN from an employee, as well as registration at the place of residence, but they are often needed to process personnel documents and therefore are requested.

The employee's TIN is required to submit personal income tax returns

How to draw up a fixed-term employment contract: structure and content, basic conditions, sample

When applying for a job under a fixed-term contract in the contract, in accordance with Art. 70 of the Labor Code of the Russian Federation, a test period for employment may be established. The test is established by agreement of the parties in order to verify the compliance of the employee with the assigned work. The absence of a test clause in the employment contract means that the employee is hired without a test.

If the employee is actually allowed to work without drawing up an employment contract (part 2 of article 67 of the Labor Code of the Russian Federation), the test condition can only be included in the employment contract by issuing it as a separate agreement before starting work. Wherein:

1. A test for employment is not established if a fixed-term employment contract is concluded for a period of up to two months (Article 289 of the Labor Code of the Russian Federation).
2. When concluding a fixed-term employment contract for a period of two to six months, the probationary period may not exceed two weeks.
3. If fixed-term contract drawn up for a period of more than six months, the probationary period is set as standard - up to three months.

An example of a form for a fixed-term employment contract is possible. Attention should be paid to filling out clause 2.1.3 of the contract indicating the start and end of work. A sample of filling out a fixed-term employment contract is possible.

IN without fail even before signing the contract, the employee must familiarize himself with the internal labor regulations, his job description, as well as confirm your familiarization with a signature in the appropriate journal.

After signing a fixed-term employment contract, the employer's personnel department must perform at least two mandatory operations:

• issue an order for employment under a fixed-term employment contract;
• make an entry in the work book of the hired employee, reflecting the start of work with the employer.

Order on employment and filling out a work book

This has no fundamental differences with the order for admission to permanent job. The main difference between such an order is that it must contain the date or conditions for the completion of this contract. Order example.

When drawing up a fixed-term employment contract, the work book is filled out according to the general rules.

However, making an entry in the work book about the deadline for completing the contract is a violation of the provisions of the Instructions for filling out work books. If the inspection bodies discover the fact of a record of the deadline for the completion of the employment contract, the employer may be involved in administrative responsibility under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation . In addition, the employer will be issued an order to eliminate the violation, failure to comply with which may result in liability in accordance with Art. 19.5 of the Code of Administrative Offenses of the Russian Federation.

Features and procedure for payment under a fixed-term employment contract

An employee with whom a fixed-term employment contract has been concluded enjoys all the rights to pay for the work performed on an equal basis with permanent employees.

All social payments to a temporary worker are also required. But there are some nuances here. So, in order to receive payments for sick leave and vacations, the average salary is calculated not for the last 12 months, but from the calculation of the average salary for the period from the moment of employment to the month preceding the sick leave or vacation.

There are also specifics for temporary workers upon dismissal. In the event of the dismissal of a permanent employee due to staff reduction, he is entitled to compensation, which is not provided for temporary workers.

Upon dismissal, a temporary worker, in addition to payment for work performed, is only entitled to compensation for unused days of the next vacation.

The procedure for terminating a fixed-term employment contract, including at the expiration of the term

The procedure for terminating a fixed-term employment contract is regulated by Art. 79 of the Labor Code of the Russian Federation. The employer shall notify the employee of the termination of a fixed-term employment contract at least three calendar days before the date specified in the contract as the date of its termination.

If none of the parties demanded the termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract, the condition on the urgent nature of the employment contract becomes invalid, and the employment contract is considered concluded for an indefinite period.

But there are certain features in the dismissal of an employee under a temporary employment contract:

• an employment contract concluded for the duration of a certain work is terminated upon completion of this work;
• an employment contract concluded for the duration of the performance of the duties of an absent employee is terminated when this employee returns to work;
• an employment contract concluded for the performance of seasonal work is terminated at the end of the period (season) specified in the contract.

Special nuances relate to the conclusion of an employment contract for a certain period in the absence of sufficient grounds for this established by law. In this case, the contract is considered concluded for an indefinite period by a court decision.

If a pregnant woman works under a fixed-term contract, she remains employed at this place until the end of the maternity leave. You cannot be fired before this time. However, there are exceptions here too. If a woman is employed during the absence of an employee, and he returns to his previous position, then the pregnant woman is offered another position. If the employer does not have a vacant position suitable for her qualifications and health characteristics, then the contract is terminated. A pregnant employee working under a fixed-term contract may also be dismissed before the completion of maternity leave if the employer's activities are completely terminated (the employer - entity or an individual entrepreneur is deregistered as a business entity).

If the term of the contract has expired, the employee is not entitled to insist on further work at this place. The management, in turn, cannot keep the employee, prevent his dismissal. If the agreements expired, the employee notified the employer that he was stopping work, worked the last day and did not come back, this cannot be considered absenteeism. Temporary employee upon dismissal own will the obligation to work the prescribed number of days is not imputed.

The dismissal of an employee at the expiration of the employment contract is usually quick and painless

How to convert a fixed-term contract into an open-ended one

In some cases, a fixed-term employment contract may be converted into an indefinite one. This happens if:

• an agreement has been reached between the employer and the employee on the transfer of the employee to a permanent job;
• the employee applies to the court with a claim to recognize the contract as open-ended, and based on the materials submitted, the court makes a positive decision.

If the parties to the contract have agreed that the employee hired under a fixed-term contract will become a permanent employee, it is necessary to conclude an appropriate agreement.

A sample additional agreement between an employer and an employee with a joint decision to transfer a fixed-term employment contract to the status of an open-ended one is possible. After signing it, a temporary worker automatically becomes a permanent one.

After the conclusion of an additional agreement on the transfer of a fixed-term contract to an open-ended contract, the employer must issue an order approving this agreement. An example can be downloaded.

The procedure for retraining a fixed-term employment contract into an open-ended one in a judicial proceeding

In practice, a situation may arise when one of the parties to a fixed-term employment contract, usually the employer, believes that the contract has ended, and the other party believes that this fixed-term contract can be considered open-ended and the employee can be considered a permanent employee.

When the parties fail to reach an agreement, the person concerned, usually an employee, goes to court. When applying to the court, an employee can substantiate his claim by one of the following circumstances:

• fixed-term employment contract legal grounds provided for in Art. 59 of the Labor Code of the Russian Federation;
• no contract expiration date (or scope of work to be performed) is specified, i.e. the contract does not contain a reference to the event in connection with which it is terminated, or the termination date is not indicated labor relations;
• a fixed-term employment contract is concluded for a period of more than five years;
• the employer did not warn the employee about the end of the contract 3 days before its expiration;
• a fixed-term contract is repeatedly concluded for a short period to perform the same labor function.

And another reason to challenge the contract in court are banal violations of the norms of Art. 59 of the Labor Code of the Russian Federation. In accordance with it, a fixed-term contract must necessarily contain the validity of the execution of a fixed-term contract.

A fixed-term employment contract is an important element of Russian labor law. Such an agreement is often convenient for both the employer and the employee. Therefore, all employers need to understand when it is permissible to conclude a fixed-term employment contract, how to draw it up, how to change it, in which cases it is possible to convert such an agreement into an open-ended one.

By general rule an employment contract is concluded with any employee who works in the organization. It regulates the wear between employer and employee.

One of the options for an employment contract with an employee is the conclusion of a fixed-term employment contract. When making it, it is worth considering the formalities that will help to avoid claims during verification. labor inspectorate. These, in particular, are the specific period for which the contract is signed, as well as the grounds for its conclusion.

With whom to conclude?

Typically, a fixed-term employment contract is concluded in two cases. The first is when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation. For example, for the duration of the performance of the duties of an absent employee, for whom the place of work is retained (maternity leave).

A fixed-term employment contract must be concluded when performing temporary (up to two months) or seasonal work, when due to natural conditions it can only be produced during a certain period, season.

Such an agreement is also concluded with employees sent to work abroad. You need to sign an agreement with them for a period not exceeding three years (Article 338 of the Labor Code of the Russian Federation). At the end of three years, the employment contract will have to be renegotiated for a new term.

Labor legislation obliges to sign fixed-term employment contracts when carrying out work that goes beyond the normal activities of the employer. For example, reconstruction, installation, commissioning and other works.

Need to know

A fixed-term employment contract can be concluded in two cases: by agreement of the parties and depending on the nature of the work performed.

With employees performing temporary (up to one year) work, it is also necessary to conclude a fixed-term employment contract. In particular, if this is work related to the expansion of production or the volume of services provided.

A fixed-term employment contract is also concluded with persons entering work in organizations created for a predetermined period (or when this period cannot be precisely determined), as well as for performing a predetermined job.

It is worth remembering that a fixed-term employment contract must be signed with personnel who are aimed at performing work directly related to internships and vocational training. The same story, when an employee is sent by the employment service authorities to work of a temporary nature or public works.

The second situation when the conclusion of a fixed-term employment contract is required is the performance of work without taking into account its nature and conditions of performance. For example, such an agreement is concluded with employees who work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people. For retail trade and consumer services, the minimum number is 20 people.

A fixed-term employment contract is concluded with old-age pensioners entering work, as well as with persons who, for health reasons, in accordance with a medical report, are allowed to work exclusively of a temporary nature.

Special rules

The maximum term for concluding a fixed-term employment contract is five years.

In addition, a fixed-term employment contract is concluded when the company is located in the regions of the Far North and equivalent areas, if the employment is associated with moving to the place of work.

A fixed-term employment contract can be concluded with heads, deputy heads and chief accountants of organizations, regardless of organizational and legal forms and forms of ownership.

The list of cases in which a fixed-term employment contract can be concluded is open, so it can also be concluded in other situations that are permitted by law, for example, when carrying out urgent work to prevent disasters, accidents or other emergencies. However, such an agreement must also contain information and mandatory conditions under which it is considered concluded. In particular, it is necessary to indicate the place of work, labor functions, information about the parties concluding the contract, and others (Article 57 of the Labor Code of the Russian Federation).

Term of imprisonment

A fixed-term employment contract is an agreement that defines its validity period (Article 59 of the Labor Code of the Russian Federation). This norm means that the contract must contain a specific period for which the employee is hired. Otherwise, the contract is automatically transferred to the category of perpetual.

The expiration of such an agreement may be the occurrence of certain events (for example, the employee who was replaced, came out of vacation or the end of seasonal work) or a certain date.

The maximum term of an employment contract is five years (Article 58 of the Labor Code of the Russian Federation). As for the minimum period, it is not regulated by law. It can be concluded for a month, for a week and even for one day. If a fixed-term employment contract is signed for one day, then the employer must have a justification for concluding such a contract. In this case, it is much more profitable to conclude civil law contracts (contract, paid services).

Repeated renegotiation of a fixed-term employment contract for a short period to perform the same labor function is a reason for retraining into a contract concluded for an indefinite period (Resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2).

However, if the employee replaced another employee and he went to work, then the current contract can be terminated with the “conscript” and, by agreement of the parties, a new fixed-term employment contract can be concluded.

Basis for conclusion

A fixed-term employment contract must contain the grounds on which it has the character of urgency. For example, this is the performance of seasonal work, in connection with which an employee is hired for several months, or work abroad. Such circumstances should be listed in the employment contract. In the absence of sufficient grounds capable of qualifying the contract as urgent, the regulatory authorities will consider it unlawful to conclude it and establish it as a contract concluded for an indefinite period.

Therefore, the employment contract must contain the reason (grounds) and the period for which it is concluded.

Registration

When hiring under a fixed-term employment contract in the order for hiring form No. T-1 or T-1a you need to specify the expiration date of its validity or an event that will serve as the basis for its termination, for example, the employee's exit from parental leave.

Attention

Payments under a fixed-term employment contract are subject to both personal income tax and contributions to funds in the general manner.

In addition, in the section “Conditions for employment, nature of work”, it should be indicated that the employee is hired for a certain period, and (or) the performance of specific work. For example, “under a fixed-term employment contract in connection with being sent to work in Amsterdam” (see an example of filling out an order for employment under a fixed-term employment contract).

The nuances of work

Having concluded a fixed-term employment contract with an employee, the accountant of the organization must comply with certain conditions. So, if none of the parties demanded the termination of such an agreement due to the expiration of its validity period and the employee continues to work, the condition on the urgent nature of the employment contract becomes invalid. Then the employment contract is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).

After the expiration of a fixed-term employment contract during the woman's pregnancy, the employer is obliged, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract (until the end of pregnancy). Such an employee, at the request of the employer, is required to submit a medical certificate confirming pregnancy once every three months.

Employees working under a fixed-term employment contract are prohibited from establishing a probationary period (Article 289 of the Labor Code of the Russian Federation).

Employees with whom an employment contract has been concluded for a period of up to two months, with their written consent, may be involved in work on weekends and non-working days. holidays. Work for these days is compensated in cash at least twice. Recall that, as a general rule, for work on a weekend or non-working holiday, an employee can be provided, at his choice, with either monetary compensation or the right to an additional day of rest (Article 153 of the Labor Code of the Russian Federation). However, "conscripts" cannot take another day for rest, but only monetary compensation.

An employee who has concluded an employment contract for a period of up to two months is not paid severance pay upon dismissal. However, otherwise may be established by agreement of the parties by a collective or labor agreement or federal laws (Article 292 of the Labor Code of the Russian Federation).

"Conscripts" are provided with paid vacations or compensation is paid upon dismissal at the rate of two working days per month of work (Article 291 of the Labor Code of the Russian Federation).

An employee who has concluded an employment contract for a period of up to two months, in case of its termination, is obliged to notify the employer in writing three calendar days in advance. If the employer plans to dismiss such an employee in connection with the liquidation of the organization, downsizing or staff, it is necessary to notify the employee in writing against signature also at least three calendar days in advance (Article 292 of the Labor Code of the Russian Federation).

Yu.L. Ternovka, expert editor

Let's consider what's going on. How justified is this type of contract and when it is impossible to choose between a fixed-term and open-ended contract.

Distinctive features

According to the Labor Code of the Russian Federation, two types of contract can be distinguished, with the help of which an employee and an employer can formalize relations between themselves. Namely:

1. urgent;
2. without a deadline.

In the first case, the term of service of an employee is a limited period of time, but not more than 5 years. This may be related to:

• the nature of the work;
• working conditions;
• with health or age restrictions;
• human professional activities.

Keep in mind: in the event of a fixed-term employment contract the employer does not have the right to refuse to provide an employee with annual or maternity leave, as well as sick leave. At the same time, all relevant payments for the employee remain.

Is employee consent required?

It is impossible to answer this question unambiguously. Each must be considered specific situation. In most cases, the consent of the future employee is still required.

On practice a fixed-term employment contract is concluded in cases where registration of an employee for a permanent job is impossible for various reasons. For example, the state of health does not allow to do this ( given fact must be confirmed by an official certificate from a medical institution). Then his consent is needed.

Investigators, many scientists, professors, university lecturers, and artists serve exclusively on fixed-term basis. labor contracts who sign up for a limited period. In most cases - for 5 years. After which they either renew it or refuse services this person. It is not necessary for the employer to obtain consent from these categories of specialists to sign a fixed-term contract, since there is no second option for formalizing relations by virtue of the law in principle.

When consent is not needed

Let's figure it out, and there are no other options:

1. The employee will take the place of a temporarily absent person who is on long-term treatment, on maternity leave, on leave to care for a disabled child, etc. (i.e. absent on good reason and saves space).
2. The services of this specialist are needed for a short period of time - no more than 2 months
3. The employee travels to another country. Example: to work in a branch, for advanced training, internship.
4. The need for a worker depends on the season. Example: his services are needed in winter to clean the roofs from snow and icicles.
5. The person will be employed in jobs not related to the main activity of the company. Example: an organization sells auto parts, and the roof is constantly leaking in a warehouse. The workers hired for the reconstruction of the warehouse building will conduct their activities under a fixed-term employment contract.
6. A group of specialists working on one project for a company and not planning further cooperation with her after finishing work on it.
7. Employees temporarily employed by an organization for internships or internships.

By agreement: voluntary signing procedure

In part 2 of Article 59 of the Labor Code of the Russian Federation, in what cases is a fixed-term employment contract concluded with mutual consent. Among them:

1. people with various diseases that can only work for a short period of time;
2. pensioners who came to work in the organization;
3. employees hired on a competitive basis;
4. workers whose future activities involve moving to areas with a harsh climate (scientists, researchers, meteorologists, military);
5. artists and entertainment workers (actors, circus workers, TV presenters, reporters, singers);
6. people in high positions CEOs, chief accountants and their deputies);
7. full-time students;
8. sailors;
9. employees who combine work in several organizations;
10. workers fighting emergency situations (fires, floods, epidemics) and eliminating their consequences.

When a fixed term contract is illegal

And here in what cases a fixed-term employment contract is concluded illegal:

1. when a person worked under an indefinite contract, and the management forces him to quit and sign an urgent one;
2. when a person retired and continues to work, but already under a fixed-term contract.

Terms of signing

The main conditions for signing a fixed-term contract are as follows:

1. the consent of both parties (except in the cases listed above, when it is not needed);
2. there is no conflict with the law.

The employee and the employer express a desire to limit their cooperation to a certain period of time. After its expiration, they may, by mutual agreement, decide to terminate or extend the contract.

When signing a fixed-term contract, neither party should be pressured. Otherwise, it may be invalidated.

The employer must not only indicate in the contract the basis for its conclusion for a specific period, but also make sure that the applicant has documents confirming this fact (certificates, certificates, etc.).

What should include

Traditionally in the event of a fixed-term employment contract it must contain the following information:

1. personal data of the hired person (full name);
2. grounds for signing a fixed-term contract;
3. an indication of the period for which it is concluded;
4. information about the employer (name of the organization, full name of the head or person entitled to sign);
5. the amount of remuneration that an employee will receive when conscientious performance assigned tasks (can be monthly or for the entire period of work);
6. date of signing and autographs of both parties.

How to arrange

Registration of a fixed-term employment contract begins with its signing. Then they issue an order to hire the employee mentioned in it.

Then the clerk (personnel officer) makes an appropriate note in work book about this fact. Indicates the date when the employee was employed, the details of the order about this, the name of the organization, puts his signature.

After the expiration of the contract, the clerk makes an appropriate note in the employee's work book. Except in cases where the contract was decided to be extended or the employee was transferred to a permanent job.

There are employees with whom fixed-term contracts are concluded in almost any company. In the article, we will consider in detail on what grounds it is possible to conclude contracts with such employees and how to do it correctly in 2018.

Grounds for concluding a fixed-term employment contract

If it is impossible to establish an employment relationship with an employee for an indefinite period, a fixed-term employment contract is concluded with him. These employees include those who:

• Works in a temporary, fixed-term or seasonal job;
• Sent to work abroad;
• He is hired by an organization established for a specific period;
• Accepted for certain work, etc.

Another reason for concluding a fixed-term employment contract is the agreement of the parties, that is, the initiative of the employer and the employee himself (See also the article ⇒). For example, when an employee being hired:

• retired by age;
• Has a medical condition that only allows him to do temporary work;
• If for work he needs to move to the Far North or equated to it;
• Accepted for urgent work, such as the elimination of accidents or disasters;
• Is in full-time education;
• Athlete or coach;
• Accepted for creative work;
• Accepted to work for a small enterprise, the number of which is up to 35 people (or 20, if the enterprise is engaged in retail or household services)
• Will work as a chief accountant or manager;
• Companion, etc.

The author's course by Olga Likina (Accountant M.Video Management) is great for organizing personnel records in a company for beginners and accountants ⇓

It is impossible to issue a fixed-term contract with an employee who retired already working in the organization. For this, the organization faces a fine.

Responsibility for violation of the conditions for concluding a fixed-term employment contract

The rules for drawing up a fixed-term contract with an employee cannot be violated. Otherwise, organizations, officials of the organization and entrepreneurs face a fine from the labor inspectorate.

• 50,000 - 100,000 rubles. - for the organization
• 10,000 - 20,000 rubles. – to an official (for example, a director);
• 5000 - 10,000 rubles. - for an entrepreneur.

Such fines threaten in case of violation of the law once. If the employer repeatedly violates the law, the fines will be increased:

• 100,000 - 200,000 rubles - for the organization;
• 1 - 3 years of disqualification - for an official (for example, a director);
• 30,000 - 40,000 rubles - for an entrepreneur.

Deadline for concluding a fixed-term contract

The maximum possible term for a fixed-term contract with an employee is 5 years, while the legislator does not limit the minimum term. The contract does not clearly define the expiration date of the fixed-term contract. It can be limited to some date or some event. For example, the contract can provide for its termination in connection with the employee's return to work from maternity leave.

Termination of a fixed-term contract

The contract terminates at the end of its term. Wherein we are talking about a specific event, or a date specified in the contract. For convenience, you can keep a special log of the end date of fixed-term contracts of the organization. This will allow you to dismiss such an employee in time without violating labor laws.

How to renew a fixed term contract

It is not always possible to extend the employment relationship with an employee without terminating the fixed-term contract. It depends on how long the contract was concluded and for how long the employer wants to extend it. It is necessary to proceed from the fact that the total period of work under a fixed-term contract cannot exceed 5 years and there is no special possibility of extension. This can only be done if:

• at the end of the term of the fixed-term contract, the employee is pregnant. In this case, the term of the contract must be extended until the end of the pregnancy. However, it should be borne in mind that in this case there are grounds on which a fixed-term contract can be terminated with a pregnant woman;
• the employee previously held the position of a scientific and pedagogical worker and is elected to it by competition.

When extending the employment relationship with an employee for an indefinite period, the dismissal process can be avoided.

At the end of the term, the parties should not demand the termination of the fixed-term contract and the employee can continue to work. In this case, the contract becomes indefinite, and it can be extended by issuing an additional agreement or order.

The same is the case with those employees with whom the fixed-term contract was not terminated in a timely manner and he continued to work. In this case, by default, the contract is considered unlimited, even without additional documents.

But this rule does not apply to the head if a fixed-term contract was concluded with him, the effect of which is spelled out in the constituent documents.

Personnel documents when making a fixed-term employment contract

The personnel department will need to draw up some documents when hiring an employee under a fixed-term contract.

Important! If the contract is terminated at the initiative of the employee before the agreed period, the employee is obliged to notify the employer in the form of a written statement. This must be done two weeks before the expected date of dismissal. But if the term of the contract is not more than 2 months, then the application can be written three days before the dismissal.

The legislative framework

Answers to common questions

Question: Is it possible to indicate in the contract that an employee is prohibited from taking the initiative in terminating a fixed-term contract ahead of schedule?

Answer: No. This directly contradicts the law, Article 77 of the Labor Code of the Russian Federation, according to which the contract can be terminated at the initiative of the employee, including the situation when the contract has not yet expired.

Affected practical matters related to cases and reasons for concluding a fixed-term contract. The features of the conclusion of a fixed-term employment contract are indicated, which is especially worth paying attention to: for how long it is possible to conclude an agreement, what is the situation with probationary period. The rights and obligations of the parties will be listed and references to legislative acts will be given.

general information

A fixed-term contract is an employment contract for a fixed period, as opposed to indefinite.

The definition of the contract is contained in article 58 of the Labor Code.

The parties to the agreement are the employer and the employee.

The most important difference from an open-ended contract is the end date, after which the employment relationship automatically ends.

The maximum term for this agreement is 5 years. However, the contract can be extended if necessary.

It is worth considering that multiple renegotiation of a fixed-term contract with the same job function serves as the basis for establishing an open-ended employment relationship. In such cases, the employee has the right to apply to the court with a request to change the contract to an indefinite one.

A fixed-term employment contract may be concluded if the conclusion of an open-ended contract is impossible. Unlike a “regular” contract, there are two additional mandatory conditions in the agreement.

When a fixed-term employment contract is concluded, it is mandatory to indicate the reason why a temporary contract is selected. If the employer does not pay attention to the item, and the reasons are not indicated (or indicated incorrectly), employee can sue.

The court will have the right to change the contract from urgent to indefinite, as well as to punish the employer with a fine. The second condition is that a fixed-term employment contract must be concluded with an end date.

cases

With whom can I conclude a fixed-term employment contract?

The grounds for concluding a fixed-term employment contract are provided for in article 59 of the Labor Code of the Russian Federation.

A fixed-term employment contract is concluded in cases where:

1. Temporary works (less than 2 months);
2. A fixed-term employment contract is concluded when seasonal work is carried out. Due to natural conditions, work can only be carried out during a certain period (season);
3. Business trips abroad - an employee is sent with a specific assignment, a fixed-term contract is concluded for this period;
4. The consequences of accidents and catastrophes are being eliminated;
5. When the nature of the work differs from the main direction of the enterprise - for example, the installation of equipment, the repair of premises for a travel company;
6. Temporary work is assigned to persons undergoing full-time training;
7. Public Works;
8. A fixed-term employment contract may be concluded with creative workers. The concept includes the media, theaters, circuses, cinematography. A complete list is contained in Government Decree N252;
9. Temporary jobs to which the unemployed may be directed by the employment center;
10. A fixed-term employment contract is concluded with persons performing labor activity as part of an internship/vocational training.

Labor legislation provides for other cases, but the main guideline is still project nature of work. By this they mean that the scope of work is defined (performance of certain work) and it is possible to reasonably set the end date.

Is it possible to conclude a fixed-term employment contract with a pensioner?

Separately, it should be said about pensioners. the employer allows serious mistake. Retirement age alone does not provide any grounds for concluding such an agreement.

Confirmation of this can be found in decision Constitutional Court N378. However, there are some categories of people who, for medical reasons, are only allowed to work temporarily.

Order of conclusion

How to conclude a fixed-term employment contract with an employee?

Based on the list of cases and reasons contained in the Labor Code, you can proceed to draw up an agreement.

In addition to the usual sections and paragraphs, there are two mandatory conditions for concluding a fixed-term employment contract:

1. The reason for the conclusion of a fixed-term employment contract.
2. An expiration date determined by a date or otherwise.

Until termination of employment the contract is stored in the same way as other contracts.

For convenience, all fixed-term contracts can be stored in a separate folder. However, each personnel officer chooses how to structure papers. After dismissal, the temporary employment contract is transferred to the archive of the enterprise.

To properly draw up a contract, you need to take into account a few more points, we will analyze what we are talking about.

Duration

The procedure for terminating the contract regulates. It makes sense to indicate not only the total duration of the agreement, but also the end date (if possible).

This help avoid disputes in the future. But in some cases, the end date depends on a specific event. For example, the exit of an employee from maternity leave. In such cases, the end date can be associated with an event - the return of an employee from maternity leave.

After the set date or event, there is automatic termination of the agreement. If the event did not occur, then the contract can be changed to permanent. For example, in the event that the employee (who was replaced by the hired one) quit. The maximum term of the contract is 5 years.

If the employer enters into an agreement for a period of more than five years, then it is highly likely that the court may change the agreement to an indefinite one.

Minimum term by labor law not installed.

There is a separate termination procedure for pregnant women.

The employer must renew the contract until the end of pregnancy.

The woman, in turn, will need to provide a medical certificate. See more details.

Probation

A short-term employment contract with an employee has special rules regarding the probationary period. Probationary period for seasonal work cannot exceed 2 weeks.

A two-week period is also set for all works up to six months. For temporary work (with a period of less than 2 months), a trial period is not provided at all.

Filling out the form

In the form of a fixed-term employment contract, you must fill out two cells (from and to). The cell "from" is responsible for the start of work, the cell "to" - respectively, for the end date. Another option for filling in the "by" cell is to indicate the event that will complete the working relationship (exit from maternity leave, and others).

The very fact of "urgency" must be written in the section "Nature of work" and in general provisions(at the very beginning of the document). By agreement of the parties, the contract is signed.

Seal is not a strictly necessary condition. It only additionally confirms the authenticity of the document. The contract will have legal force even without a seal.

A fixed-term employment contract with an employee must be drawn up in two copies. One is for the employer, the other is for the employee. Document details defined GOST 6.30.

The agreement must/must contain:

1. The name of the employer.
2. Type / date / number of the document, as well as the place of its preparation.
3. Headings of the text and the text itself (should include all the information provided for by the Labor Code).
4. Application note.
5. Signatures.
6. External approval data.
7. Visa approval.
8. Print imprint.
9. Certification instruction - only for copies of contracts.
10. Identification of the electronic copy.
11. The mark of receipt by the employee of the second copy.

Annexes to the temporary contract are added in the same manner as for indefinite. also has no difference.

Approximate wording for the agreement:

1. The employment contract is fixed-term, it is concluded according to the 59th article of the Labor Code. The reason is the employee's trip abroad.
2. The term of the agreement is limited to the duration of the trip abroad.

Employers should pay attention to the fact that when establishing fixed-term employment relationships, the potential gain is extremely small. Employees with a fixed-term contract are entitled to all guarantees, and dismissal must be carried out in the usual manner. In addition, the employer may be punished with monetary fines for illegal registration.

If there is distrust regarding the candidate, then it is worth using the tools provided for by law. Where best solution will enter into a regular contract with a long trial period than to try to evade the requirements of the Labor Code.

A sample of filling out a fixed-term employment contract with an employee for temporary work:

Conclusion

A fixed-term employment contract is not concluded for no reason, the legislation provides a detailed list of cases and grounds when it is allowed to conclude this species contracts.

In all other cases, it is better to conclude an open-ended contract.

There are only two differences from a regular contract for an urgent one - reason and expiration date.

Reasons are a reasonable explanation why the employer needs this particular type of agreement.

For this need to know the scope of work. The list of cases when it is recommended to conclude a temporary employment contract with an employee is contained in the 59th article of the Labor Code. These include business trips abroad, seasonal, temporary (less than two months) and some other cases.

Useful video

This video describes in detail what a fixed-term contract is, in what cases can it be concluded? The main reasons for issuing this type of agreement, as well as the nuances of renewal and termination are listed: