Terms and procedure for concluding an employment contract. Is it obligatory to conclude an employment contract in writing? An employee who has entered into an employment contract is obliged

What is an employment contract and what guarantees does this document provide? What are the legal aspects of concluding or terminating an employment contract? In our article, we have tried to cover these issues in as much detail as possible.

The detailed concept of an employment contract is defined by article 56 of the Labor Code of the Russian Federation, but, in short, an employment contract is an agreement between two parties (between an employer and an employee), concluded on the basis of the emergence of mutual rights and obligations. In accordance with this agreement, the employee assumes responsibilities for the performance of certain functions, strictly obeying the internal rules of the organization. In turn, the employer assumes the obligation to provide work stipulated by the employment contract, timely payment and the necessary working conditions.

According to Art. 67 of the Labor Code of the Russian Federation, labor relations between an employer and an employee must be formalized in writing.

The meaning of an employment contract

An employment contract is the main basis for the emergence and operation of labor legal relations between an employee and an employer (employer). This document is a legal form for attracting, distributing / redistributing labor responsibilities, and also acts as a form of communication between the employee and members of the labor collective. The labor contract establishes the principle of the emergence of labor legal relations and determines the conditions for its implementation.

Rules for drawing up an employment contract

In labor legislation, there is no specific sample of an employment contract, however, regardless of its final form, the contract is concluded in writing and is drawn up in two copies, each of which must be signed by both parties. Based on Art. 57 of the Labor Code of the Russian Federation, clauses of the employment contract must contain:

1. The name of the organization and the full name of the employee between whom the contract is concluded.
2. Place of work.
3. Directly the type of work activity, position and type of work (main or part-time).
4. The date of commencement of work (if a fixed-term employment contract is concluded, it is necessary to indicate the expiration date of the document)
5. The rights and obligations of the employee and the employer.
6. Payment terms (salary, tariff rate, additional payments, etc.).
7. Work and rest mode.
8. Guarantees and compensations.
9. Additional conditions, if any (availability and duration of the probationary period, business trips, part-time work, etc.).

Important! The absence in the employment contract of one of the above points determines the invalidity of the document and may be the basis for its cancellation or termination.

In the event that the employment contract is drawn up incorrectly and the employee begins to perform the relevant functions on behalf of the employer, the contract is considered concluded and within 3 working days the contractual relationship must be formalized properly (part 2 of article 67 of the Labor Code). The beginning of the employment contract is considered the moment it is signed by the employee and the employer or from the date of the actual start of work, determined by the contract. In the absence of a start date in the contract, the employee is obliged to start performing his duties on the next business day after the contract comes into force.

The employer has the right to cancel the employment contract unilaterally if the employee does not start performing the functions on the day specified in the contract. on the basis of Art. 61 of the Labor Code of the Russian Federation, a canceled employment contract is considered not concluded.

Term for concluding an employment contract

Article 58 of the Labor Code, Russian labor legislation provides for two types of conclusion of an employment contract:

• A fixed-term employment contract, which is concluded for a certain period, but not more than 5 years (except for cases provided for by the Labor Code of the Russian Federation and other federal laws). A fixed-term contract assumes special conditions for the performance and the nature of the work to be done (part 1 of article 59 of the Labor Code).
• An employment contract concluded for an indefinite period.

According to the current legislation of the Russian Federation, every citizen has the right to conclude a second employment contract - for combined work (Article 283 of the Labor Code of the Russian Federation), with the exception of some categories of employees who are prohibited from performing additional paid work on a part-time basis (law enforcement officers, judges, federal civil servants, etc. etc.).

Guarantees when concluding an employment contract

In accordance with the legislative framework, all Russian citizens have equal rights and opportunities to conclude an employment contract: an employee has the freedom to choose a place of work, and an employer has the right to independently select personnel in accordance with their business and professional qualities. At the same time, the Labor Code of the Russian Federation provides for certain guarantees arising from the conclusion of an employment contract. So, on the basis of article 64 of the Labor Code of the Russian Federation, the refusal to conclude an employment contract must be justified, regardless of the circumstances not related to the employee's business qualities (gender, nationality, property and social status, etc.). Refusal to conclude an employment contract with a citizen of the Russian Federation due to the fact that the latter did not have registration at the place of residence is illegal and contradicts part 1 of Art. 27 of the Constitution of the Russian Federation and Art. 64 of the Labor Code of the Russian Federation. Also, a refusal due to the circumstances arising in connection with a woman's pregnancy and the presence of minor children and employees who were invited to work on the terms of transfer from another employer within 1 month from the date of dismissal from the previous place of work is considered unreasonable.

The reason for the refusal to conclude an employment contract is communicated by the employer in writing. Refusal, as well as ownership, can be challenged in court.

In Russian labor legislation, there are a number of cases, the occurrence of which obliges the employer to employ previously dismissed workers, namely:

• Citizens who worked in state structures before conscription / enrollment in military service - within 3 months after dismissal from military service in the same organizations for a position not lower than that which they held before conscription / admission (Article 23 of the Federal Law of May 27, 1998, No. 76-FZ "On the status of military personnel").
• Trade union workers who were dismissed from work in the organization due to their election to elective positions in trade union organizations - after the expiration of their term of office, they must be given the same or equivalent position in the same organization (Article 26 of the Federal Law of 12.01.1996 No. 10- Federal Law "On trade unions, their rights and guarantees of activity").

Refusal to conclude an employment contract is considered justified in the following cases:

• lack of vacancies;
• downsizing or staff reduction in the organization;
• liquidation of the enterprise.

In addition, the refusal is justified in the following cases:

Inconsistency of the age of the applicant for a certain position with the requirements of the Labor Code of the Russian Federation;

The applicant does not have the documents necessary to conclude an employment contract;

Refusal of the applicant to undergo a preliminary medical examination;

Refusal of the applicant to sign an agreement containing the clause on full financial responsibility, as well as refusal of the applicant to obtain access to state secrets (if such exist as a necessary condition of work in this position).

In addition to civil labor and administrative law, an unjustified refusal to conclude or terminate an employment contract is governed by Art. 145 of the Criminal Code of the Russian Federation.

The employer is criminally liable for refusing to hire or unjustifiably dismissing a pregnant woman or having children under the age of 3 years. This violation entails a fine of up to 200,000 rubles, in the amount of the convict's salary for a period of up to 18 months, or punishment in the form of compulsory work for up to 360 hours.

Termination of an employment contract

An employment contract is a legal document, the conclusion, change or termination of which is carried out in writing in accordance with the requirements of the labor legislation of the Russian Federation. General grounds for terminating an employment contract are provided for by Article 77 of the Labor Code of the Russian Federation and include in the list:

• expiration of the contract;
• agreement of both parties;
• conscription / admission of an employee to military service;
• transfer of an employee to an elective position or to another organization;
• termination of the employment contract at the initiative of the employer (liquidation of the organization, reduction in the number of staff, inappropriateness of the employee for the position held or repeated gross violation of his duties without good reason);
• termination of the employment contract at the initiative of the employee (at his own request with the notification of the manager in writing no later than 2 weeks before the planned date of dismissal);
• termination of the contract on the initiative of third parties (parents and guardians of minor citizens, trade unions, etc.);
• refusal of the employee to work with other working conditions or to transfer him to another locality;
• sentencing or entry into force of a court decision on the conviction to imprisonment;
• other grounds and conditions.

Termination of an employment contract concluded for a combined job occurs for the same reasons as at the main place of work, and has one additional reason - in the case of hiring an employee for this position, for whom this place of work will be the main one.

According to the Labor Code of the Russian Federation, this is an agreement between the employee and the employer, according to which the employee undertakes to perform work in a certain specialty corresponding to his qualifications, and the employer, in turn, undertakes to pay the employee wages and provide him with working conditions, corresponding to the labor legislation of the Russian Federation.

In fact, an employment contract is nothing more than an agreement between the employer and the employee, according to which the parties have mutual rights and obligations, but in fact, the employment contract provides the employee with social guarantees and is more beneficial to the employee than to the employer, in contrast to civil legal contract.

It is worth noting that recently the amendments to the employment contract have undergone some changes, thus, now the employment contract indicates:

Surname, name and patronymic of the employer who entered into the employment contract;

Employee and employer identity documents;

TIN (for employers);

Date and place of conclusion of the employment contract.

While earlier in the employment contract only:

Surname, name and patronymic of the employee;

Surname, name and patronymic of the employer who entered into the employment contract.

According to the employment contract, the employer is obliged to:

Provide the employee with work according to the specified labor function;

Provide working conditions provided for by the Labor Code of the Russian Federation, laws and other regulatory legal acts, collective agreements, agreements, local regulations containing labor law norms;

Pay wages to the employee on time and in full.

According to the employment contract, the employee is obliged:

Personally perform the job function defined by this agreement;

Observe the internal labor regulations in force in the organization.

Recall that these general obligations of the parties are enshrined in the very definition of an employment contract, given in Art. 56 of the Labor Code of the Russian Federation.

A detailed list of data that must be reflected in the employment contract is established in Art. 57 of the Labor Code of the Russian Federation. However, before moving on to the content of the employment contract, you should first consider its form.

Following the provisions of Art. 67 of the Labor Code of the Russian Federation, an employment contract is concluded in writing, drawn up in two copies, each of which is signed by both parties. One copy is given to the employee, and the second remains with the employer.

In addition, I would like to note that hiring by order is far from consistent with the conclusion of an employment contract, because in an order for hiring it is impossible to reflect all the conditions regarding the mutual rights and obligations of the employee and the employer.

An equally important advantage of an employment contract is that all the mutual rights and obligations of the employee and the employer are recorded in a single act, binding on both parties, thus, in the event of a labor dispute, the possibility of checking and comparing the terms of the contract with the relevant provisions of the law becomes obvious.

An employment contract that is not duly executed is considered concluded if the employee started work with the knowledge or on behalf of the employer or his representative. With the actual admission of the employee to work, the employer must conclude an agreement with him in writing no later than three days from the date of admission to the performance of the labor function.

An employment contract comes into force from the day it is signed by the parties or from the day the employee is actually admitted to the performance of labor duties.

Analyzing the content of the employment contract, it should be noted that the composition of the essential terms of this contract is not advisory, but mandatory.

Essential are such necessary conditions of an employment contract, without the approval of which the conclusion of such an agreement is impossible. So, the employment contract specifies:

Surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual);

Place of work (indicating the structural unit);

Start date of work;

The name of the position, specialty, profession, indicating qualifications in accordance with the organization's staffing table or labor function. Article 57 of the Labor Code of the Russian Federation specifically stipulates that distortion of the name of the profession (position) in order to exclude or reduce the cost of providing benefits or guarantees to employees will be regarded as a violation of labor legislation with all the ensuing consequences;

Employee's rights and obligations;

Employer's rights and obligations;

Characteristics of working conditions, compensation and benefits to employees for work in difficult, harmful and (or) dangerous conditions;

The mode of work and rest (if it in relation to this employee differs from the general rules established in the organization);

Terms of remuneration (including the size of the wage rate or official salary, additional payments, allowances and incentive payments);

Types and conditions of social insurance directly related to work.

The fact that the Labor Code of the Russian Federation provides a detailed list of essential conditions makes it possible to develop a standard form of an employment contract. The form of an employment contract is not unified and, therefore, can be developed in each organization based on the specifics of the activity.

In addition to essential (mandatory) conditions, the employment contract may provide conditions for testing, on non-disclosure of secrets protected by law (state, official, commercial and other), on the employee's obligation to work after training for at least the period specified in the contract, if training was carried out at the expense of the employer, as well as other conditions that do not worsen the employee's position in comparison with the requirements of documents containing labor law norms.

The terms of the employment contract can be changed only by agreement of the parties and in writing.

Employment contracts can be concluded:

1. for undefined period;
2. for a specified period of not more than five years (fixed-term employment contract).

One of the most discussed problems in the adoption of the Labor Code of the Russian Federation was the problem of the possibility of concluding a fixed-term contract. It is considered that the right to choose between the contract concluded for an indefinite period and the fixed-term employment contract, given to the employer, significantly worsens the employee's situation. Article 57 of the Labor Code of the Russian Federation provides for a condition that makes such reasoning practically pointless: if a fixed-term employment contract is concluded, it indicates its validity period and the circumstance (reason) that served as the basis for concluding the fixed-term contract.

In comparison with the norms of the Labor Code of the Russian Federation, the Labor Code of the Russian Federation significantly limited the employer's ability to conclude fixed-term employment contracts with employees:

• firstly, the term for which such an agreement can be concluded cannot exceed five years;
• secondly, a fixed-term employment contract can be concluded only if the employment relationship cannot be established for an indefinite period, taking into account the nature of the work ahead or the conditions for its performance. In this case, an employment contract concluded for a specified period, in the absence of sufficient grounds for that established by an authorized body or court, is considered concluded for an indefinite period;
• thirdly, if the term of its validity is not stipulated in the employment contract, then the contract is also considered concluded for an indefinite period;
• fourthly, if none of the parties demanded termination of the fixed-term employment contract due to the expiration of its term, and the employee continues to work after the expiration of this period, then again the employment contract is considered concluded for an indefinite period. This means that if at the time of the expiration of the term of the employment contract the employer has not announced the employee about his dismissal, the contract ceases to be urgent;
• fifth, Art. 58 of the Labor Code of the Russian Federation, it is expressly prohibited to conclude fixed-term employment contracts in order to evade the granting of rights and guarantees provided for employees with whom the contract is concluded for an indefinite period;
• sixth, in art. 59 of the Labor Code of the Russian Federation, there are cases in which the conclusion of a fixed-term employment contract is possible.

And although this list is not exhaustive, nevertheless it contains a reference to the fact that such agreements can be concluded in other cases, but only provided for by federal laws. Thus, the legislator did not leave the solution to this issue at the mercy of the employer, which is a certain guarantee to the employee against the arbitrariness of managers who have the authority to hire.

As a general rule, an employment contract can be concluded with persons who have reached the age of sixteen. In some cases, an employment contract can be concluded by persons who have reached the age of fifteen and fourteen years. In addition, in organizations of cinematography, theaters, theater and concert organizations, circuses, it is allowed to conclude an employment contract with persons under the age of fourteen. Article 64 of the Labor Code of the Russian Federation provides for certain guarantees to the employee when concluding an employment contract. For example, unjustified refusal to conclude an employment contract is prohibited. Any limitation of rights and the establishment of advantages in hiring, depending on gender, race, skin color, nationality, language, origin, property, social and official status, place of residence, as well as other circumstances not related to the business qualities of the employee. The only exceptions are cases directly provided for by federal law. In practice, the question often arises about the possibility of finding a job in Moscow for persons registered in the regions closest to Moscow. As can be seen from the analysis of the norms of the Labor Code of the Russian Federation, no restrictions on this matter have been established either in the Labor Code of the Russian Federation itself, or in other federal laws. By the way, at the request of the person who has been refused to conclude an employment contract, the employer must inform the reason for the refusal in writing. Refusal to conclude an employment contract can be appealed against in court. Currently, there is judicial practice on this issue.

For the first time in the Labor Code of the Russian Federation, a list of documents required for presentation to the employer when applying for a job has been determined. According to Art. 65 of the Labor Code of the Russian Federation, such documents are:

Passport or other identity document;

Employment book, except for cases when an employment contract is concluded for the first time or an employee goes to work part-time;

Insurance certificate of state pension insurance;

Military registration documents - for those liable for military service and persons subject to conscription;

A document on education, qualifications or special knowledge - when applying for a job requiring special knowledge or special training.

In some cases, regulatory legal acts may provide for the need to present additional documents.

As already noted, hiring, in addition to concluding an employment contract, is formalized by an order (decree) of the employer. The content of the order (instruction) must comply with the terms of the concluded employment contract.

The order (order) for employment is announced to the employee against receipt within three days from the date of signing the employment contract. At the request of the employee, the employer is obliged to give him a duly certified copy of the said order (instruction).

When hiring, the employer is obliged to familiarize the employee with the internal labor regulations in force in the organization, other normative acts related to the employee's labor function, the collective agreement.

As an additional condition of the employment contract, the agreement of the parties may stipulate the testing of the employee in order to verify his compliance with the assigned work.

The test condition must be specified in the employment contract. The absence of a record of this means that the employee was hired without a test. In practice, there are situations when the employer, when hiring an employee, sets him a test condition, but nothing is said about this in the employment contract and in the order. Subsequently, when an attempt is made to dismiss an employee due to an unsatisfactory test result, the employer loses the case in court.

During the trial period, the employee is subject to the provisions of the Labor Code of the Russian Federation and other regulatory legal acts containing labor law norms.

However, there are also categories of workers for whom a probationary period is not established. It:

Persons applying for a job on a competition to fill the relevant position;

Pregnant women;

Persons under the age of eighteen;

Persons who graduated from educational institutions of primary, secondary and higher vocational education and are entering work for the first time in their specialty;

Persons elected to an elective position for a paid job;

Persons invited to work by transfer from another employer as agreed between employers.

The test is not established in other cases provided for by the Labor Code of the Russian Federation, other federal laws and the collective agreement.

The trial period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies - six months. The period of probation does not include periods of temporary disability of the employee, as well as other periods when he was actually absent from work.

Based on the test results, the employee either continues to work on a general basis, or quits his job. In the second case, the employer is obliged to notify the employee in writing about the dismissal not later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test. The employee can appeal against such a decision in court.

In the event of termination of the employment contract on the specified basis, the payment of severance pay to the employee is not made.

If during the probationary period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract of his own free will, notifying the employer about this in writing three days in advance.

Thus, in conclusion, it can be noted that labor relations between an employee and an employer arise on the basis of an employment contract, which in turn is an agreement of the parties on its main (essential) conditions. Labor contracts are concluded in writing in duplicate and are kept by each of the parties. Changes to the terms of the agreement can only be made in writing. If one of the parties fails to comply with the terms of the contract, the other party may appeal the violated right to the labor dispute committee or in court.

Termination of an employment contract

Before proceeding directly to a comparative analysis of the norms of the Labor Code of the Russian Federation and the Labor Code of the Russian Federation, it is necessary to understand the basic concepts that are encountered when considering this issue.

The concept of "termination of an employment contract" is the most general one, including all the grounds for the termination of an employment contract provided for by the Labor Code of the Russian Federation and other federal laws.

Termination of an employment contract means its termination at the initiative of one of the parties - the employee or the employer. The term "dismissal", used in many articles of the Labor Code of the Russian Federation, is associated with the presence or absence of the will of the parties to the terminated employment contract.

Chapter 13 "Termination of an employment contract" of the Labor Code of the Russian Federation establishes the grounds and procedure for terminating an employment contract.

Article 77 of the Labor Code of the Russian Federation sets out the general grounds for terminating an employment contract. Already here there are differences from Article 29 of the Labor Code of the Russian Federation, which regulated a similar issue. The fact is that the Labor Code of the Russian Federation provided an exhaustive list of grounds for terminating an employment contract, and the Labor Code of the Russian Federation, in addition to general ones, provides for other grounds set forth in this Code and other federal laws. An example is the norms contained in Article 288 of the Labor Code of the Russian Federation. They provide for the termination of an employment contract with persons working part-time in the event of hiring an employee for whom this work will be the main one. Article 336 of the Labor Code of the Russian Federation sets out additional grounds for terminating an employment contract with pedagogical workers.

Comparing article 77 of the Labor Code of the Russian Federation and article 29 of the Labor Code of the Russian Federation, the following differences can be distinguished:

1) four new grounds have been added: the employee's refusal to continue work in connection with a change in the owner of the organization's property, a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75). The norm of the Labor Code of the Russian Federation assumed that when the owner of the enterprise is changed, as well as its reorganization (merger, acquisition, division, transformation), labor relations with the consent of the employee continue; termination in these cases of an employment agreement (contract) on the initiative of the administration was possible only with a reduction in the number or staff of employees; the employee's refusal to transfer to another job due to the state of health in accordance with the medical report (part two of article 72); circumstances beyond the control of the parties (Article 83); violation of the established rules for concluding an employment contract, if this violation excludes the possibility of continuing work (Art. 84);

2) the conscription of an employee for military service or his assignment to alternative service is now among the circumstances beyond the control of the parties, and is governed by Art. 83 of the Labor Code of the Russian Federation;

3) the basis for termination of the employment contract at the request of the trade union body is excluded. The ego is driven by a general change in the role of trade union organizations in the organization's personnel management;

4) excluded such a reason as the entry into force of a court verdict by which the employee was sentenced (except for cases of conditional conviction and suspension of execution of the sentence) to imprisonment, correctional labor outside the place of work, or to another punishment that excludes the possibility of continuing this work. In accordance with the Labor Code of the Russian Federation, this ground is a special case of termination of an employment contract due to circumstances beyond the control of the parties;

5) The Labor Code of the Russian Federation, in contrast to the Labor Code of the Russian Federation, separately considers the grounds for terminating an employment contract in cases of employee refusal to continue work in connection with a change in essential working conditions, as well as the employee's refusal to transfer due to the employer's relocation to another locality (clauses 7 and 9 Article 77 of the Labor Code of the Russian Federation). Transfer of an employee to work in another locality, as a rule, involves a change in the essential terms of the employment contract. Clause 7 applies to other cases of transfer - in the same organization and in the same locality. You should pay special attention to paragraph 9 of Art. 77 of the Labor Code of the Russian Federation (the employee's refusal to transfer due to the relocation of the employer to another locality). The Labor Code of the Russian Federation does not clarify what is meant by the movement of an employer to another locality. In particular, it has not been determined whether the change of the legal address of the organization (in another locality) should be considered such a movement, or if the movement is understood as the need for an employee to actually move to another locality. By the way, a significant change in the terms of the employment contract can also take place when the employer moves within the boundaries of one settlement (for example, for such a metropolis as Moscow). Thus, it seems necessary to clarify the concepts of "other locality" and "relocation of the employer".

Articles 78-84 of the Labor Code of the Russian Federation regulate the termination of an employment contract on separate grounds.

An attempt has been made to detail the procedure for terminating a fixed-term employment contract (Article 79 of the Labor Code of the Russian Federation). Article 32 of the Labor Code of the Russian Federation regulated the termination of a fixed-term employment contract ahead of schedule at the request of the employee. This was possible in the event of illness or disability of the employee, i.e. the occurrence of circumstances that prevent the performance of work under an agreement (contract), violation by the administration of labor legislation, a collective or labor agreement (contract) and for other valid reasons.

Article 79 of the Labor Code of the Russian Federation establishes that, in general, a fixed-term employment contract is terminated upon the expiration of its validity period. Moreover, the employee must be warned in writing about the arrival of the deadline at least three days before dismissal. If a fixed-term employment contract is concluded for the duration of a certain work, then it is terminated upon completion of this work. An employment contract concluded for the duration of the performance of the duties of the absent employee is terminated when this employee leaves for work. An employment contract entered into for the duration of seasonal work is terminated after a certain season.

The procedure for terminating an employment contract on the initiative of an employee has been preserved. The main distinguishing feature of this order is still the need to warn the administration two weeks in advance. If the dismissal is due to the inability to continue performing the job function from a certain period (admission to an educational institution, etc.), the employment contract must be terminated by this date. In addition, the employer is obliged to terminate the employment contract within the time period specified in the employee's application in cases of established violation by the employer of laws and other regulatory legal acts containing labor law norms, the terms of a collective agreement, agreement or employment contract. If the employer does not object, the employment contract may be terminated even before the expiration of two weeks from the day the employee submits the resignation letter. In this case, the reason for the dismissal may be re-qualified to terminate the contract by agreement of the parties. The employee has the right to withdraw the letter of resignation, and the contract will not be considered terminated, but only if another employee is not invited to this workplace. After two weeks, the employee has the right to terminate his job. At the same time, the employer does not have the right to terminate the contract for gross violation of the labor regulations by the employee (absenteeism).

Significant changes were made by the legislator to the list of grounds on which an employment contract can be terminated at the initiative of the employer. Compared with the norms of the Labor Code of the Russian Federation, it is supplemented with five points:

• change of ownership of the organization's property (in relation to the head of the organization, his deputies and the chief accountant);
• adoption of an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;
• submission by the employee to the employer of false documents or knowingly false information when concluding an employment contract;
• termination of admission to state secrets, if the work performed requires such admission;
• cases stipulated by an employment contract with the head of the organization, members of the collegial executive body of the organization.

Excluded the basis according to which an employee could be dismissed in case of failure to appear for work for more than four months in a row due to temporary incapacity for work, excluding maternity leave. Now dismissal is possible for health reasons and only with a medical certificate. Moreover, dismissal in this case is made if it is impossible to transfer the employee with his consent to another job. Looking ahead, I would like to note that in Art. 83 of the Labor Code of the Russian Federation contains an almost similar norm with the only difference that it deals with the unconditional termination of labor relations in connection with the recognition of the employee as completely incapacitated in accordance with the medical certificate.

The reason is excluded when an employee could be dismissed in case of reinstatement of an employee who had previously performed this work. This issue is governed by Art. 79 of the Labor Code of the Russian Federation (termination of a fixed-term employment contract). It has been clarified that termination of an employment contract on the initiative of the employer can take place not only in the event of the liquidation of the organization, but also in the event of the termination of activities by the employer - an individual. The concept of a single gross violation of labor duties by an employee is disclosed in more detail. It now includes:

• absenteeism (absence from the workplace without good reason for more than four hours in a row during the working day). According to the Labor Code of the Russian Federation, absenteeism was equated to absence from work for more than three hours in a row;
• appearance at work in a state of alcoholic, drug or other toxic intoxication. In Art. 33 of the Labor Code of the Russian Federation, this basis for terminating an employment contract was indicated as a separate one. In the Labor Code of the Russian Federation, only two words "or otherwise" have been added, as a result of which the text of this paragraph has become not entirely accurate: it turns out that both alcoholic and narcotic intoxication are varieties of toxic intoxication;
• disclosure of secrets protected by law (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties. This type of gross violation is new - the Labor Code of the Russian Federation did not provide for the possibility of dismissal on this basis;
• committing at the place of work theft (including petty) of someone else's property, embezzlement, deliberate destruction or damage, established by a court verdict that entered into legal force or by a resolution of a body authorized to apply administrative penalties. This ground for termination of an employment contract is not fundamentally new - in Art. 33 of the Labor Code of the Russian Federation, it stood out as a separate one. The changes affected only the terminology: in the Labor Code of the Russian Federation, it was not about someone else's, but about state or public property;
• violation by an employee of labor protection requirements, if this violation entailed grave consequences (industrial accident, accident, catastrophe) or deliberately created a real threat of such consequences. There was no such basis in the Labor Code of the Russian Federation. Although, in fact, dismissals on this basis took place, as a rule, with the admission of this violation, the employee was brought to criminal liability and dismissed from work by a court decision.

From Art. 254 of the Labor Code of the Russian Federation in Art. 81 of the Labor Code of the Russian Federation, three grounds for terminating an employment contract were transferred, which can be applied to only certain categories of employees. It:

the commission of guilty actions by an employee who directly serves monetary or commodity values, if these actions give rise to a loss of trust in him on the part of the employer;

the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties. The list of grounds when an employment contract can be terminated on the initiative of the employer in the Labor Code of the Russian Federation (unlike the Labor Code of the Russian Federation) is not exhaustive - in accordance with paragraph 14 of Art. 81 labor contracts can be terminated in other cases provided for by law (examples of such cases have already been given earlier).

The requirement that the dismissal of an employee due to the liquidation of an organization, reduction of the number or staff of employees is allowed if it is impossible to transfer the employee with his consent to another job, has been retained. In addition, the prohibition on the dismissal of an employee who is on vacation or during a period of temporary disability has been retained.

It was clarified that the procedure for terminating labor contracts provided for in cases of liquidation of an organization applies to cases of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality.

Article 82 of the Labor Code of the Russian Federation establishes the procedure for the participation of trade union bodies in the consideration of issues related to the dismissal of employees at the initiative of the employer. As already noted, the role of trade unions in managing the organization's personnel in the Labor Code of the Russian Federation has been significantly revised in comparison with the Labor Code of the Russian Federation. This circumstance was reflected in Art. 82 of the Labor Code of the Russian Federation.

In particular, it was established that in the event of liquidation or reduction of the number (staff) of employees, the employer is only obliged to inform the trade union body about the planned measures: in general, no later than two months, if the measures lead to mass layoffs, no later than than three months.

The criteria for mass layoffs should be defined in sectoral and / or territorial agreements.

At the same time, the Labor Code of the Russian Federation does not determine the further actions of the employer, the trade union organization, as well as the procedure for implementing the decision adopted by the trade union body during the liquidation of the organization.

The employer is obliged to take into account the opinion of the trade union body if a union member is dismissed on the following grounds: reduction in the number or staff of the organization's employees in the event of insufficient qualifications, confirmed by the results of certification, as well as in the case of repeated non-performance by the employee without good reason of labor duties, if he has a disciplinary penalty. The procedure for taking into account the opinion of the trade union body is regulated by Art. 373 of the Labor Code of the Russian Federation. In particular, taking into account the opinion of the trade union assumes (in case of disagreement of the trade union with the dismissal) consultations with the employer with the obligatory execution of the corresponding protocol. Regardless of the results of the consultations, the employer has the right to dismiss the employee within ten days after sending the draft dismissal order and copies of the necessary documents to the trade union (for the development of an opinion by the trade union). The decision to dismiss can be appealed to the federal labor inspectorate and, of course, in court. It should be emphasized that the decision of the trade union must be motivated. An unmotivated opinion is not taken into account by the employer. The criteria for motivating the Labor Code of the Russian Federation have not been determined.

Note that the additional right to trade union organizations is still granted by Art. 82 of the Labor Code of the Russian Federation - this is the right to send its representatives to the certification commission (when conducting certification, which may serve as a basis for dismissing employees).

Most of the provisions of Art. 83 of the Labor Code of the Russian Federation, which regulates the termination of an employment contract due to circumstances beyond the control of the parties, is not new - to one degree or another, the relevant grounds were provided for by several articles of the Labor Code of the Russian Federation.

These circumstances are:

• conscription of an employee for military service or his assignment to an alternative civilian service replacing it (previously a separate basis provided for by Article 29 of the Labor Code of the Russian Federation);
• reinstatement of an employee who previously performed this work at work, by decision of the state labor inspectorate or the court;
• non-election to office;
• conviction of the employee to a punishment that excludes the continuation of the previous work, in accordance with the court verdict, which entered into legal force;
• recognition of an employee as completely incapacitated in accordance with a medical report;
• death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as deceased or missing;
• the onset of extraordinary circumstances that prevent the continuation of labor relations. In order for a circumstance to be recognized as extraordinary, a decision of a public authority must be available.

The norms of Art. 84 of the Labor Code of the Russian Federation, which regulates the procedure for terminating an employment contract due to a violation of mandatory rules established by law when concluding an employment contract.

Only three possible violations of the rules are indicated:

• conclusion of an employment contract in violation of a court verdict on deprivation of a specific person of the right to hold certain positions or engage in certain activities;
• conclusion of an employment contract for the performance of work contraindicated for this person for health reasons in accordance with a medical opinion;
• lack of an appropriate education certificate, if the performance of work requires special knowledge in accordance with federal law or other regulatory legal acts;
• in other cases provided for by federal law.

It is easy to see that in all three cases, the conclusion of an employment contract is hardly possible without some insincerity on the part of the employee. It is difficult to assume that the employee does not know the verdict of the court and that he is in good faith mistaken about his physical condition or does not know that special education is required for the job for which he is applying. Nevertheless, Art. 83 of the Labor Code of the Russian Federation specifically stipulates that the termination of the employment contract in the above cases is made if it is impossible to transfer the employee with his written consent to another job available to the employer. In addition, the last part of Art. 83 of the Labor Code of the Russian Federation establishes the obligation of the employer to pay the employee severance pay in the amount of the average monthly wage, if the violation of the rules for concluding an employment contract was not caused by the employee's fault.

And the last thing I would like to note when analyzing the norms of the Labor Code of the Russian Federation and the Labor Code of the Russian Federation. Article 135 of the Labor Code of the Russian Federation provided for dismissal on well-defined grounds as a disciplinary sanction. But Art. 192 of the Labor Code of the Russian Federation defines "dismissal on appropriate grounds" as a type of disciplinary penalty. It seems necessary to specifically state these grounds, using a reference rule in order to avoid ambiguous application of the mentioned type of disciplinary sanction.

Material liability of the parties to the employment contract:

1. The concept of liability

Material liability under labor law can be defined as the obligation of one party to the employment relationship (employee or employer) to compensate for the damage caused by it to the other party by non-performance or improper performance by the party of its labor duties.

Failure to fulfill or improper fulfillment by the party to the employment contract of the obligations assigned to it, if this entailed damage, is the basis for material liability. The party to the employment contract (employee, employer) that caused damage to the other party compensates for the damage in accordance with the norms of the Labor Code of the Russian Federation and other federal laws (Article 232 of the Labor Code of the Russian Federation).

2. Under what conditions does the parties to an employment contract become financially liable?

Liability as a type of legal liability arises only if there are a number of mandatory conditions of legal liability. First of all, this is the presence of material damage. Other mandatory conditions for the occurrence of material liability of a party to an employment contract are:

a) the unlawfulness of the action (inaction) that caused the damage;

b) a causal relationship between the wrongful act and material damage;

c) guilt in committing an illegal act (inaction) (Article 233 of the Labor Code of the Russian Federation).

The exception is the employer's material liability for delayed payment of wages (Article 236 of the Labor Code of the Russian Federation).

3. What should be understood as damage caused by a party to an employment contract?

Labor legislation does not provide a general definition of the concept of damage. Article 232 of the Labor Code of the Russian Federation, speaking about the material responsibility of the parties to an employment contract, applies to them (the employee and the employer) a single term "compensation for damage".

However, when it comes to specific rules for compensation for damage by the parties to an employment contract, the content of this concept in relation to an employee and an employer is not equivalent. As applied to the employer, it does not coincide with the concept of damage provided for by the Civil Code of the Russian Federation. In accordance with the Labor Code of the Russian Federation, the employer compensates the employee for both real damage and lost profits (Articles 234, 235 of the Labor Code of the Russian Federation), i.e. losses; the employee reimburses the employer only real (direct actual damage) (Article 238 of the Labor Code of the Russian Federation).

4. What is meant by direct actual damage?

The concept of direct actual damage is provided for in Art. 238 of the Labor Code of the Russian Federation. Direct actual damage is understood as a real decrease in the employer's cash assets or deterioration of the specified property (including property of third parties held by the employer, if the employer is responsible for its safety). And also the need for the employer to make costs or unnecessary payments for the acquisition or restoration of property.

Direct actual damage can include, for example, a shortage of monetary or property values, damage to materials and equipment, the cost of repairing damaged property, payments for the time of forced absenteeism or downtime, the amount of the fine paid.

The obligation to compensate for direct actual damage arises for the employee both in cases where such damage is caused directly to the employer (for example, due to a shortage of values \u200b\u200bentrusted to him), and in cases where damage through the fault of the employee is caused to other persons, and the employer, in accordance with the applicable law is obliged to compensate for this damage. For example, if, as a result of illegal actions of an employee in the performance of his labor duties, he caused damage to the property of another organization.

Lost income (lost profits) cannot be collected from the employee.

5. What are the similarities and differences between the material responsibility of an employee under labor law and the property responsibility of citizens under the norms of civil law?

The material liability of an employee under labor law has some similarities with the property liability of citizens under civil law. Both liability is based on the obligation to compensate for the damage caused. However, there are significant differences between the material liability of an employee under labor law and property liability under civil law.

Unlike civil legislation, according to which the parties to property relations are, as a general rule, equal and any of them has the right to demand full compensation for the losses caused to it, the subjects of the employment relationship are in an unequal position in relation to each other.

In accordance with labor legislation, the employee, as a general rule, bears limited material liability and compensates only for direct actual damage, while the employer is obliged to compensate the employee for the losses caused to him through his fault in full.
Labor law standards governing the grounds, limits and procedure for compensation for material damage are imperative. They are established by law and cannot be changed by agreement of the parties.

So, protecting the interests of the economically weaker party - the employee, the Labor Code of the Russian Federation determines that by agreement of the parties the material liability of the employer cannot be defined below, and the employee's liability to the employer is higher than that provided for by the Labor Code of the Russian Federation (part 1 of article 235, article 241 ) or other federal laws. Only within the specified limits, the parties have the right to establish a specific amount of material liability. According to the norms of civil law, the parties themselves have the right to determine the grounds, limits and conditions of property liability.

6. In what cases does the employer's financial liability to the employee arise?

Material liability of the employer to the employee arises in the event of non-fulfillment or improper fulfillment of the duties assigned to him, if this entailed causing the employee to property damage.

The Labor Code of the Russian Federation distinguishes three groups of offenses on the part of the employer, which entail his obligation to compensate employees for the damage caused to them as a result of these offenses. These include:

Illegal deprivation of an employee of the opportunity to work (Article 234 of the Labor Code of the Russian Federation);

Causing damage to the property of an employee (Article 235 of the Labor Code of the Russian Federation);

Delay in the payment of wages to the employee, vacation pay, payments upon dismissal and other payments due to the employee (Article 236 of the Labor Code of the Russian Federation).

7. In what cases is an employee, deprived of the opportunity to work, entitled to demand compensation for damage caused to him?

Unlawfully depriving an employee of the opportunity to work is the most serious offense. This is not only a failure to fulfill the obligation to provide work enshrined in the Labor Code, stipulated by an employment contract, but also a violation of the constitutional right of an employee to freely dispose of his ability to work, to choose a type of activity and profession. In this regard, the legislator obliges the employer to reimburse the employee for the earnings not received by him in all cases of illegal deprivation of his opportunity to work.

Such an obligation arises if the earnings are not received as a result of:

Unlawful suspension of an employee from work, his dismissal or transfer to another job;

The employer's refusal to fulfill or untimely fulfillment of the decision of the labor dispute settlement body or the state legal labor inspector on the reinstatement of the employee in his previous job;

Delays by the employer in issuing a work book to an employee, entering an incorrect or inappropriate formulation of the reason for the employee's dismissal in the work book;

In other cases provided for by federal laws and collective agreements.

The damage incurred in connection with the illegal deprivation of an employee of the opportunity to work is expressed in the loss of earnings, which the employee has lost in whole or in part due to illegal dismissal or transfer, delay in issuing a work book.

8. In what cases is an employee released from liability?

In accordance with Art. 239 of the Labor Code of the Russian Federation, an employee is released from material liability in cases where damage was caused due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee.

The Labor Code of the Russian Federation also provides for the right of the employer to fully or partially refuse to recover damages from the guilty employee, taking into account the specific circumstances in which the damage was caused (Article 240).

9. What types of employee liability to the employer are provided for by the Labor Code of the Russian Federation?

The Labor Code of the Russian Federation provides for two types of employee liability for damage caused to the employer: limited and full liability.

Limited liability is the main type of employee liability for damage caused to the employer. It consists in the obligation of the employee to compensate the direct actual damage caused to the employer, but not exceeding the maximum limit established by law, determined in relation to the amount of wages he receives. In accordance with Art. 241 of the Labor Code of the Russian Federation, this maximum limit is the average monthly earnings of an employee.

The application of limited liability within the limits of the average monthly earnings means that if the amount of damage exceeds the average monthly earnings of the employee, he is obliged to compensate only that part of it, which is equal to his average monthly earnings. In other words, the employee is obliged to fully compensate the direct actual damage caused to the employer only in cases where this damage does not exceed his average monthly earnings.

The rule on limiting material liability to the limits of the average monthly earnings applies in all cases, except for those in respect of which the Labor Code of the Russian Federation or other federal law directly establishes a higher material liability, for example, full material liability (Article 242 of the Labor Code of the Russian Federation).

Full financial responsibility consists in the employee's obligation to compensate the direct actual damage caused to the employer in full.

Anton Garanin

Information Agency "Financial Lawyer"

Until 1992, in Russia, when hiring, there was an oral form of an employment contract, when an employee performed his direct duties, and the employer simply made an entry about this in the work book. After the entry into force of the Law of the Russian Federation No. 3543-1 of 25.09.1992, the situation changed, and the state obliged the leaders to draw up contracts in writing, and later this was reinforced by the norms of Art. 67 of the Labor Code of the Russian Federation, which says that an agreement not concluded in writing is considered valid if the employee started work with the knowledge or on behalf of the director.

Oral transactions are allowed only by the Civil Code, but in labor relations they are unacceptable for several reasons:

• An employment order is drawn up on the basis of an employment contract.
• The agreement is created in two copies: one remains with the employer, and the second with the employee. This makes it possible to establish the fact of the existence of an employment relationship in court proceedings initiated by the employee, since the document can be used as evidence.
• The employment contract defines not only the term of work, but also the conditions: usual, at night, harmful. Based on this, wages are calculated, since under difficult conditions, the employee is entitled to additional compensation and additional payments.

In essence, labor contracts are divided into several types:

• Urgent: with a predetermined period during which the employee will perform his functions at the enterprise. For example, seasonal work, contracts, etc. The duration of such a relationship cannot exceed 5 years, after which the document must be renewed or renewed, otherwise it will be considered automatically terminated.
• Indefinite: a specific period of work is not indicated in them. As a rule, such documents are drawn up for employment on a permanent basis or part-time.
• With an unspecified period: such a document is usually drawn up in cases where it is necessary to perform a certain amount of work, and their temporary nature is indicated in the Charter of the organization.
• The applicant applies to the organization for employment, providing the necessary documents: a diploma of education, work book (if any), as well as the application for employment itself.
• The employer enters into an employment agreement with the employee. If a probationary period is provided for him, this must necessarily be reflected in the document.
• Next, the manager issues an order for employment and gives it to the employee for signature, then a personal card is drawn up for him, and the corresponding entries are made in the work book.

general information

As mentioned earlier, the execution of an employment contract when applying for a job is a prerequisite, and the procedure itself looks as a whole as follows:

As for the employment contract, it can be concluded in a simple written form, because there is no unified form for it. It should contain the following information:

• Employee and employer data (full name, organization name).
• The position for which the employee is hired, as well as the date of commencement of employment.
• Rights and obligations of the parties.
• Labor remuneration conditions.
• Working day and rest time.
• Guarantees and compensations.
• Responsibility of the parties.
• Terms of termination of the contract.

Before filling out all the documents, the employee must be familiar with the job description, according to which he will have to fulfill his duties, because this will allow him to have a clear idea of \u200b\u200bthe work being done.

Types of employment contracts

The classification of employment contracts is made according to the timing and nature of the work. Fixed-term agreements, in turn, are divided into several types:

• With a certain period of validity. Relevant for elective offices: deputies, governors, rectors of educational institutions. It indicates the exact expiration date of his term, after which he can be reissued through re-election.
• With a relatively definite period of validity. As a rule, such contracts are drawn up in organizations specially created to carry out specific work with a set scope: for example, the headquarters of the pre-election campaign.
• Urgent: issued with seasonal workers or in cases where a temporary replacement of an absent employee is required.

Also, a fixed-term employment agreement can be concluded in certain situations:

• if urgent emergency work is required;
• with certain categories of workers: art workers, students, seafarers working in the Far North, with part-time workers.

By the nature of the labor relationship, contracts are divided into two types:

• For basic work. In this case, it is assumed that the employee will perform official duties on an ongoing basis, and his work book will be kept in the personnel department of the enterprise.
• For part-time work. This type of activity is possible during free time from the main work, not exceeding half of the working day. Remuneration for labor is made on a general basis. Combination, in turn, is also divided into two types: internal, when an employee works in different positions in one company, and external, when he works in two organizations.

What are the contracts depending on the working conditions:

• For work under normal conditions: the duration of the working day in this case is normalized, work at night or at hazardous enterprises is not provided.
• For work at night. Shift schedule can also be attributed to this category, however, such an agreement, according to the law, cannot be concluded with minors and pregnant women, because facilitated working conditions are provided for them.
• For work in hazardous or harmful conditions. The list of such works is established by the Decree of the Government of the Russian Federation of February 25, 2000 No. 162. This includes foundries, welding, boiler houses, metalworking and other similar enterprises.
• For work in special climatic conditions. For example, in the Far North or equivalent regions.

In addition to the above types of contracts, there is a separate type - a contract. It refers to urgent and is usually concluded with military personnel, police officers and other law enforcement agencies when hiring. Its duration is up to 5 years, but at the initial stage, the service life is limited to three years. Subsequently, the contract can be reissued, and if this does not happen, it is considered automatically terminated on the basis of its expiration. What is the difference between a regular employment agreement and a contract:

• The contract can be either urgent or indefinite, but the contract is drawn up strictly for a certain period.
• Under the contract, the manager can terminate the employment relationship early if there are additional grounds provided for by him and by special regulatory legal acts, while the dismissal of those employed under the contract is made only in accordance with the norms of the Labor Code of the Russian Federation.

Also, a distinguishing feature of a contract from a simple contract is that it is impossible to force an employee to leave of his own free will. for termination, at least one of the following conditions must be met:

• expiration of the validity period;
• mutual consent of the parties;
• failure to comply with the obligations of one of the parties.

When is the oral form allowed?

According to the law, an employment contract is considered completed from the moment the employee begins to perform his labor functions, subject to notification of the management and availability of admission. The employer is obliged to draw up a written agreement with the employee within three days after he started his duties, otherwise the absence of a document will be considered a violation of labor laws.

If a civil contract was originally drawn up, but later the relationship was recognized as labor, the agreement must also be drawn up within three days.

Thus, the oral form of an employment contract is in any case not allowed, and the differences between a written document and a transaction within the framework of civil law are as follows:

• a civil contract presupposes the presence of a customer and a contractor, and a labor contract presupposes an employee and an employer;
• in the first case, it means the implementation of certain work in a specific timeframe, while labor can be concluded for an unlimited time;
• in civil law relations, it is not the rules for performing work that are important, but the final result, and in labor it is necessary to comply with the job description;
• a citizen employed under the TD undertakes to comply with the working time schedule established in the organization, and upon the conclusion of the GPA, the contractor has the right to independently regulate his mode of work;
• the manager who issued the TD must independently provide the employee with the necessary materials and conditions, and when signing the GPA, the executor does this himself;
• the TD provides for a number of guarantees and compensations: vacation and sick leave payments, dismissal payments, minimum leave of 28 days, etc. employed under the GPA are guaranteed only the enrollment of the hours worked in the total insurance experience, as well as the transfer of contributions to the MHIF and the Pension Fund of the Russian Federation.

The employer is also liable for violation of labor legislation if he has issued an order for employment, but has not concluded an employment contract with the employee, because this is considered a violation. The punishment is provided for by Art. 5. 27 and 5.27.1 of the Administrative Code of the Russian Federation, and the sanctions depend on the form of activity (legal entity or individual) and the severity of the offense: it is possible to impose an administrative fine, disqualification for a certain period, warning.

Good evening!

The employer is obliged to conclude an employment contract in writing with each person hired.

All contracts are concluded in compliance with all mandatory details and conditions provided for by Article 57 of the Labor Code of the Russian Federation (discussed in section 1.1. Of this book), and are certified by the signatures of the parties.

The conclusion of an employment contract provides for the following procedure for its execution:

1) the employment contract is concluded in writing;

2) drawn up in two copies, each of which is signed by the parties;

3) one copy of the employment contract is handed over to the employee, the other is kept by the employer.

Moreover, the receipt by the employee of a copy of the employment contract must be confirmed by the employee's signature on the copy of the employment contract kept by the employer.

On the part of the employer, the employment contract is signed by the employer himself or by the person exercising the rights and obligations of the employer in labor relations. The right to sign labor contracts for persons exercising the rights and obligations of the employer in labor relations must be included in their terms of reference by the relevant local regulations, labor contracts, job descriptions, and so on.

In all cases, the employer is responsible for the proper implementation of the procedure for concluding an employment contract. In case of violation of the mandatory rules established by the Labor Code of the Russian Federation and other federal laws when concluding an employment contract, if this violation excludes the possibility of continuing work, the employment contract must be terminated under paragraph 11 of Article 77 of the Labor Code of the Russian Federation.

"Employment contract, not executed in writing, is considered to be concluded if the employee has started work with the knowledge or on behalf of the employer or his representative. With the actual admission of the employee to work the employer is obliged to conclude an employment contract with him in writing no later than three working days from the date of actual admission of the employee to work " (Article 67 of the Labor Code of the Russian Federation).

After the conclusion of an employment contract, a citizen becomes an employee, and an organization represented by the administration becomes an employer, in addition, an individual can also act as an employer.

An employment contract is the basis for issuing an order (instruction) of the employer for employment. At the same time, the order (order) for employment does not replace the employment contract, but is an internal administrative document issued by the employer unilaterally.

The order (instruction) of the employer for employment is announced to the employee against signature within three days from the date of the actual start of work. At the request of the employee, the employer is obliged to give him a duly certified copy of the said order (instruction).

The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract. When issuing an order, the name of the structural unit, position, probationary period (in the event of a test for the employee when hiring), as well as the conditions of employment and the nature of the job ahead (in the order of transfer from another employer, part-time, to replace a temporarily absent employee to perform a specific job and more).

Documentary registration of labor relations when hiring an employee is not limited to drawing up an employment contract and issuing an order (instruction).

Based on the order (instruction), an entry is made in the work book - the basis for hiring, corresponding to the information specified in the order.

Labor contract - an agreement between the employer and the employee, in accordance with which the employer undertakes to provide the employee with work for a specified labor function, to ensure the working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations and with this agreement, timely and in full pay the employee wages, and the employee undertakes to personally perform the job function defined by this agreement, to comply with the internal labor regulations in force for this employer.

(Part one as amended by Federal Law of 30.06.2006 N 90-FZ)

The parties to the employment contract are the employer and the employee.

Article 57. Content of an employment contract

The employment contract specifies:

surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual) who entered into an employment contract;

information about the identity documents of the employee and employer - an individual;

taxpayer identification number (for employers, except for employers who are individuals who are not individual entrepreneurs);

information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate powers;

place and date of the conclusion of the employment contract.

The following conditions are mandatory for inclusion in an employment contract:

place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another locality - the place of work with an indication of the separate structural unit and its location;

labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; the specific type of work entrusted to the employee). If, in accordance with this Code, other federal laws, the provision of compensations and benefits or the existence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the name of these positions, professions or specialties and qualification requirements for them must correspond to the names and requirements specified in qualification reference books, approved in the manner established by the Government of the Russian Federation;

the date of commencement of work, and in the case when a fixed-term employment contract is concluded, also the period of its validity and the circumstances (reasons) that served as the basis for the conclusion of a fixed-term employment contract in accordance with this Code or other federal law;

terms of remuneration (including the size of the wage rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);

working hours and rest hours (if for this employee it differs from the general rules in force for this employer);

compensation for hard work and work with harmful and (or) dangerous working conditions, if the employee is employed in appropriate conditions, indicating the characteristics of the working conditions at the workplace;

conditions that determine, if necessary, the nature of the work (mobile, traveling, on the road, other nature of work);

a condition on compulsory social insurance of an employee in accordance with this Code and other federal laws;

other conditions in cases stipulated by labor legislation and other regulatory legal acts containing labor law norms.

If, when concluding an employment contract, it did not include any information and (or) conditions from among those provided for in parts one and two of this article, then this is not a basis for recognizing the employment contract as not concluded or terminating it. The employment contract must be supplemented with missing information and (or) conditions. In this case, the missing information is entered directly into the text of the employment contract, and the missing conditions are determined by the appendix to the employment contract or a separate agreement of the parties concluded in writing, which are an integral part of the employment contract.

An employment contract may provide for additional conditions that do not worsen the employee's position in comparison with the established labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, in particular:

on clarification of the place of work (indicating the structural unit and its location) and (or) on the workplace;

about the test;

on non-disclosure of secrets protected by law (state, official, commercial and other);

on the employee's obligation to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer;

on the types and conditions of additional insurance for the employee;

on improving the social and living conditions of the employee and his family members;

on clarification, in relation to the working conditions of this employee, the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms.

By agreement of the parties, the labor contract may also include the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms, local regulations, as well as the rights and obligations of the employee and employer arising from the terms of the collective agreement, agreements ... Failure to include any of the specified rights and (or) obligations of the employee and employer in the employment contract cannot be considered as a refusal to exercise these rights or fulfill these obligations.

Article 58. Duration of an employment contract

Employment contracts can be concluded:

1) for an indefinite period;

2) for a specified period of not more than five years (fixed-term employment contract), unless another period is established by this Code and other federal laws.

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 ahead or the conditions for its performance, namely in the cases provided for in the first part of Article 59 of this Code. In the cases provided for in part two of Article 59 of this Code, 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 performance.

(Part two as amended by Federal Law of 30.06.2006 N 90-FZ)

If the term of its validity is not stipulated in the employment contract, then the contract is considered concluded for an indefinite period.

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

An employment contract concluded for a specified period in the absence of sufficient grounds established by the court is considered concluded for an indefinite period.

(as amended by Federal Law of 30.06.2006 N 90-FZ)

It is prohibited to conclude fixed-term employment contracts in order to evade the granting of rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.

(as amended by Federal Law of 30.06.2006 N 90-FZ)

Article 59. Fixed-term employment contract

(as amended by Federal Law of 30.06.2006 N 90-FZ)

A fixed-term employment contract is concluded:

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

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

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

with persons sent to work abroad;

to carry out work that goes beyond the usual activities of the employer (reconstruction, installation, commissioning and other works), as well as work associated with 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 work;

with persons accepted for the performance of a known job in cases where its completion cannot be determined by a specific date;

to perform work directly related to the internship and professional training of the employee;

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

with persons sent by the bodies of the employment service to work of a temporary nature and public works;

with citizens sent for alternative civilian service;

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

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

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

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

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

with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (display) of works, in accordance with the lists of works, professions, positions of these workers approved by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations;

(as amended by Federal Law of 28.02.2008 N 13-FZ)

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

with persons studying on a full-time basis;

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

(the paragraph was introduced by the Federal Law of 07.11.2011 N 305-FZ)

with persons applying for part-time work;

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

Article 60. Prohibition to demand the performance of work not stipulated by the employment contract

It is prohibited to demand from an employee to perform work that is not stipulated by the employment contract, except for the cases provided for by this Code and other federal laws.

Article 60.1. Part-time work

The employee has the right to conclude employment contracts for performing other regular paid work during his free time from the main job with the same employer (internal part-time job) and (or) with another employer (external part-time job).

Features of the regulation of the work of persons working part-time are determined by Chapter 44 of this Code.

Article 60.2. Combining professions (positions). Expansion of service areas, increase in the volume of work. Fulfillment of the duties of a temporarily absent employee without release from work specified in an employment contract

(introduced by the Federal Law of 30.06.2006 N 90-FZ)

With the written consent of the employee, he may be entrusted with performing, within the established duration of the working day (shift), along with the work specified in the employment contract, additional work in another or the same profession (position) for additional payment (Article 151 of this Code).

Additional work entrusted to an employee in another profession (position) can be carried out by combining professions (positions). Additional work entrusted to an employee in the same profession (position) can be carried out by expanding service areas, increasing the volume of work. To fulfill the duties of a temporarily absent employee without being released from work specified in the employment contract, the employee may be entrusted with additional work both in another and in the same profession (position).

The period during which the employee will perform additional work, its content and volume are established by the employer with the written consent of the employee.

The employee has the right to prematurely refuse to perform additional work, and the employer has the right to prematurely cancel the order to perform it, notifying the other party about this in writing not later than three working days.

Article 61. Entry into force of an employment contract

An employment contract enters into force from the day it is signed by the employee and the employer, unless otherwise established by federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.

(as amended by Federal Law of 30.06.2006 N 90-FZ)

The employee is obliged to start performing work duties from the day specified in the employment contract.

If the day of starting work is not specified in the employment contract, then the employee must start work on the next working day after the entry into force of the contract.

(as amended by Federal Law of 30.06.2006 N 90-FZ)

If the employee did not start work on the day of commencement of work, established in accordance with part two or three of this article, the employer has the right to cancel the employment contract. A canceled employment contract is considered non-concluded. Cancellation of an employment contract does not deprive the employee of the right to receive security for compulsory social insurance in the event of an insured event in the period from the date of the conclusion of the employment contract until the day of its cancellation.

(Part four as amended by Federal Law dated 30.06.2006 N 90-FZ)

Article 62. Issuance of copies of documents related to work

(as amended by Federal Law of 30.06.2006 N 90-FZ)

Upon the written application of the employee, the employer is obliged, no later than three working days from the date of submission of this application, to give the employee copies of documents related to the work (copies of the order for hiring, orders for transfer to another job, order for dismissal from work; extracts from the work record book; certificates on wages, on the calculated and actually paid insurance contributions for compulsory pension insurance, on the period of work for this employer, and more). Copies of documents related to work must be properly certified and provided to the employee free of charge.

 

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