Employment contract between an individual entrepreneur and an employee: the rules for concluding a contract and the nuances of paperwork. Fixed-term employment contract - not for everyone Fixed-term employment contract taxation per year

Unauthorized salary accrued by an accountant is not subject to insurance premiums

If Chief Accountant regularly transferred to himself a salary in a larger amount than specified in the employment contract, the amounts of such an excess are not included in the contribution base.

Electronic Claims for Taxes and Contributions: New Referral Rules

Recently, the tax authorities have updated the forms of claims for payment of debts to the budget, incl. on insurance premiums. Now the time has come to correct the procedure for sending such requirements to the TMS.

Pay slips do not need to be printed.

Employers do not have to issue pay slips to employees for hard copy. The Ministry of Labor does not prohibit sending them to employees by e-mail.

"Physicist" transferred payment for the goods by bank transfer - you need to issue a check

In the case when an individual transferred to the seller (company or individual entrepreneur) payment for the goods by bank transfer, the seller is obliged to send a cash receipt to the buyer-physicist, the Ministry of Finance believes.

The list and quantity of goods at the time of payment is unknown: how to issue a cash receipt

Name, quantity and price of goods (works, services) - mandatory details cash receipt(BSO). However, when receiving an advance payment (advance), it is sometimes impossible to determine the volume and list of goods. The Ministry of Finance told what to do in such a situation.

Medical examination for working at a computer: mandatory or not

Even if an employee is busy working with a PC for at least 50% of the working time, this in itself is not a reason to regularly send him for medical examinations. Everything is decided by the results of certification of his workplace according to working conditions.

Changed operator electronic document management- inform the IFTS

If the organization has refused the services of one electronic document management operator and switched to another, it is necessary to send the TCS to tax office electronic notification of the recipient of documents.

Sample employment contract

During employment, an employee may be offered to conclude labor contract and an employment contract. The conclusion of such an agreement entails different consequences for both parties than in the case of an employment contract.

Hiring workers under civil law contracts

To perform certain tasks that do not require permanent employment of an employee, an organization may conclude civil law agreements with individuals (hereinafter referred to as GPC agreements), in particular:

For the employer, the contract for hiring an employee without paying taxes (parts of the UST) is quite attractive. Therefore, such agreements are subject to inspections and special attention from the tax authorities. Often, employers cover up labor relations with the help of GPC agreements in order to avoid paying mandatory payments.

The differences between an employment contract and an employee employment contract are shown in the table.

The parties to the contract are the employer and the employee

Parties - customer and executor, commission agent and committent, principal and attorney, principal and agent

The work book is filled out

Workbook is not completed

The employee personally performs the labor duties stipulated by the contract and job description

The contractor performs the work (renders services) provided for by the contract and the customer's task. Other persons may be involved in the performance of work

Rules internal regulations are mandatory for the employee.

The internal regulations do not apply to the performer

The employee has the right to demand from the employer the provision of working conditions

The customer does not provide the contractor with working conditions

The salary is specified in the contract in accordance with the wage system in force at the employer

The cost of works (services) may not be specified in the contract

The employee has the right to paid vacation, sick leave, benefits, days off

The contractor is not provided with social guarantees

The employer pays personal income tax for the employee and insurance premiums for social, medical and pension insurance

The customer has no obligation to pay insurance premiums

The employer has the right to impose disciplinary sanctions on the employee, but not fines

The contract may contain provisions on penalties for breach of obligations

The employee is liable for actual material damage caused to the employer

The contractor is responsible for the death of the result of the work before their acceptance and the safety of the property transferred to him by the customer

Temporary employment contract

Labor legislation provides for two types of employment contracts by duration (Article 58 of the Labor Code of the Russian Federation):

  • urgent - for a period not exceeding 5 years;
  • For undefined period.

Unlike an employment contract, hiring workers under civil law contracts is always temporary (urgent). The term in this case is determined by the term of performance (rendering) of the works (services) provided for by them.

When does a GPC contract become an employment contract?

When concluding an employment contract for an employee, individual entrepreneurs and organizations should take into account that the mention in the text of the contract of the provisions inherent in the registration of labor relations may lead to the re-qualification of the employment contract into a contract subject to labor legislation.

Examples of such provisions may include indications that:

  • the contractor is obliged to comply with the internal regulations of the customer;
  • payment for work is made twice a month;
  • the performer is provided workplace, equipment, overalls, etc.

The following circumstances may also arouse suspicion from the tax authorities:

  • if an individual entrepreneur or an organization has concluded more GPC agreements than labor agreements;
  • if employees of an individual entrepreneur or organization perform similar functions with the stipulated GPC agreements;
  • if employees of an individual entrepreneur or organization were transferred from labor to GPC contracts providing for the performance of similar functions.

If the employment contract is recognized as an employment contract, the employer will be obliged to pay the employee vacations, sick leave and make mandatory contributions to the Pension Fund, the Compulsory Medical Insurance Fund and the Social Insurance Fund.

Download a sample employment contract

Also read:

Features of the contract of hiring an employee without paying taxes

Within the limits of the law, any labor activity is documented. All rules are governed by the Labor Code of the Russian Federation, it spells out all the obligations and rights of both parties in the person of the employer and employee (including information on sick leave payment after dismissal). It is imperative to know how to properly draw up a contract so that the parties do not have disagreements and no one violates the law.

Employment contract - what does it mean?

An employment contract is a document that is considered an agreement between two or more persons, the subject of which is an indication of assignments, scope of work, terms and a number of other nuances. The document must contain civil rights hired employees, solution methods controversial situations and grounds for termination of cooperation.

The Labor Code of the Russian Federation does not contain the concept of "employment agreement for employment", it is replaced by the term "employment agreement". Based on the Constitution of the Russian Federation, each person has the full right to decide for himself under what conditions he will work and in what place. Documentally, the employment contract defines the right of the subject of the Russian Federation to work, which is considered free. That is why the employee can terminate the employment contract at any time, and the managers of the enterprise do not have the right to refuse this to their employee. It is also better to draw up an employment contract with a foreign worker in accordance with all the rules of the Labor Code of the Russian Federation.

Read also: Day to look for a job with a reduction

Advantages and disadvantages of an employment contract

As you know, any contract and in any field of activity has its advantages and disadvantages. The advantages of a contract of employment for both parties include:

  • there is no mandatory payment of social tax (which means that there is no need to think about how much is not taxed on a child when calculating salaries);
  • bonus money is paid according to the results of the transaction;
  • the employee has every right to set the length of the working day himself, because in this case only the result is important for the employer;
  • the employer has the right not to give any guarantees, but he must act within the framework of the Civil Code of the Russian Federation.

In addition, for the employer, the employment contract has a number of disadvantages:

  • managers cannot punish their employee for violating the rules;
  • the manager cannot constantly monitor the progress of work, since the employee has the right to manage the length of the working day;
  • the employer is obliged to legal basis study entrepreneurial activity. Otherwise, he runs the risk of being accused of illegal business conduct.

Advice: in a contract of employment it is important not to use the terms labor law. This is considered a violation of the structure of the agreement.

What must be included in an employment contract?

First of all, it is worth noting that the contract itself is concluded between the employee, the contractor, the author and the customer, who in the future will be obliged to make cash payments.

The main points of the agreement are:

  • the correct names of the parties to the agreement, as well as the date and place of the conclusion of the contract of employment;
  • detailed information about the job. This item includes the daily routine, place of work, main responsibilities, information about the position and payment of remuneration;
  • the deadlines in which the employee must meet and provide the customer with the result must be fully specified;
  • all types of liability provided for by the Civil Code of the Russian Federation;
  • obligations and rights of the parties;
  • addresses of the parties and full contact information.

The tax authorities are always interested in reclassifying the contract and being able to charge taxes. That is why compliance with all the listed nuances and rules is very important. In addition, the employer may ask the employee's TIN, which is why you should take care in advance how to find out your TIN via the Internet.

Key points in drawing up an employment contract for an employee

Before drawing up an employment contract, it is important for both the employer and the employee to carefully read the document samples. To do this, it is better to use only reliable sources, because any lost trifle or outdated information can turn into a major conflict between the parties.

In order for the contract of employment not to be reclassified into an employment relationship, it is necessary to exclude from the contract:

  • detailed schedule of the day;
  • vague deadlines for the implementation of the contract;
  • fixed wages, which is issued twice a month;
  • information on the issuance of equipment and a workplace to an employee.

In addition, do not forget that most often the court takes the side of the employee of the enterprise. That is why, before starting to draw up a contract of employment, it is better to immediately discuss all the nuances and details orally and sign all documents only after the hired employee fully agrees with all the conditions. By the way, it would be useful to raise the topic of what documents are needed when applying for a job. If the work was short-term, then the court is likely to consider the contract in terms of simple employment, and not a full-fledged employment relationship.

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So, when drawing up a contract for hiring an employee, it is important first of all to use samples from trusted sources. Even a small and seemingly insignificant proposal can greatly influence the course of further events. Secondly Special attention It is worth giving the contact information of all parties to the agreement. After all, the contract can be terminated even when you do not expect it. And this is where the contact information of the employee or employer may be needed.

Sample employment contract

In what cases is a temporary employment contract concluded with an employee for individual entrepreneurs

  • Document Information

A temporary employment contract with an employee for an individual entrepreneur is concluded according to the rules prescribed in Labor Code RF. Main difference fixed-term contract between the employee and the employer from indefinite in that it is valid until the onset of a previously agreed day or certain events. This fact must be specified in the agreement.

Document Information

Contract termination occurs after the following events:

  • the exact date specified in the document;
  • completion of the work for which the employee was hired;
  • exit of the previous worker from maternity leave or after illness.

For example, an individual entrepreneur makes a summer cafe in the warm season, he needs waiters, cooks, cleaners, but for a period from May 1 to September 30. Or a businessman needs people to repair a warehouse. He can conclude an agreement with any company that performs such work, or hire citizens under an employment contract that is valid until the renovation of the premises is completed.

Temporary employees are often needed to replace women on parental leave. But there may be such a situation that a permanent employee cannot perform his job duties for health reasons, for example, he got into a car accident or suffered as a result of a natural disaster. Then the employment contract states that the temporary worker is considered dismissed from the day the person leaves the decree or sick leave.

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How to draw up a temporary employment agreement

When hiring a citizen to work, he will be required to have a passport, work book, insurance certificate (SNILS), education documents, and a military ID. Sometimes the specifics of the work also require the presence of other documents, for example, a certificate of no criminal record, a driver's license, a medical book, etc.

A form of a temporary employment contract between an individual entrepreneur and an employee can be developed independently using another urgent agreement between the employer and the employee.

Read also: Order on granting maternity leave - sample

The text of the contract must include the following provisions:

  • information about the individual entrepreneur (TIN, OGRNIP, address, full name, telephone number);
  • data of a citizen (name, place of residence and registration, by whom, when and where a passport or other identity card was issued);
  • day and place of signing;
  • date of the first working day;
  • the date of the last business day or the event after which the agreement is considered terminated (for temporary contracts);
  • job title and specific place of work;
  • obligations and rights of the parties to the agreement;
  • size and procedure for issuing salary;
  • work schedule, what vacation is due;
  • social guarantees;
  • compensation for difficult or health-threatening conditions for the performance of labor duties;
  • other important conditions;
  • signature, seal or mark "b / p".

Other important conditions may include the presence of business trips, the liability of the person, etc.

In an employment contract concluded for a certain period of time, it must be indicated that it is urgent. In the next paragraph, you need to put down the date the work is completed or the event after which the agreement ceases to be valid. For example, before leaving parental leave Karaseva E.M.

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Termination of a temporary contract between employer and employee

The contract is concluded for a certain period. Majority individual entrepreneurs they think that when the last working day specified in the document arrives, the employee is considered dismissed and nothing else needs to be done. However, the termination process is completely different.

If an employee is hired for seasonal work or to perform a specific task, then he must be notified in writing of the date of termination of the employment agreement 3 days before the last working day. Otherwise, the fixed-term employment contract will become indefinite. If a person works instead of another employee, then it is required to inform him of the dismissal on the day the permanent employee enters his workplace.

The notification is made in writing in 2 copies. A temporary worker must put his signature on one form and return it to the employer, and take the second one for himself. In the text of the document, you must specify the full name. employee, number and date of signing of the terminated labor agreement, the day of its termination.

A fixed-term employment contract may be terminated earlier than the term specified in it at the request of the employee, by common decision of the parties, or at the initiative of the employer. In these cases, dismissal occurs according to the same rules as for an open-ended contract.

Employment contract with an employee

information about the identity document;

details of the certificate of registration as an individual entrepreneur;

If the contract is concluded not by the entrepreneur himself, but by an employee hired for this or otherwise authorized person, his data is additionally indicated in the document.

Place and working conditions

The form of an employment contract between an individual entrepreneur and an employee must contain a section describing the place of work and the requirements for its implementation. Lawyers recommend detailing everything official duties employee. But you can limit yourself to the phrase that before the conclusion of the contract, the employee was familiarized with job descriptions, additionally reflecting this fact in the agreement itself.

As for the section on the place of employment, the wording “Place of work: IP Ivanova A.A. registered at the address Moscow, st. Puteyskaya, 3. And you can prescribe a specific address of the production or store where the person will work. The fact is that labor legislation separates the concepts of “place of work” and “workplace” (Article 209 of the Labor Code of the Russian Federation). The first is a mandatory condition of the agreement, and the second is an additional one that you can do without. At the same time, it must be remembered that if you specify a specific address of a production or store, and later it changes, you will have to conclude additional agreements for all contracts.

Contract duration

Art. 59 of the Labor Code of the Russian Federation allows, by agreement of the parties, to conclude an employment contract with an individual entrepreneur in 2016 for up to 5 years, even if the employment is not temporary or urgent. This condition applies to private businessmen who employ no more than 35 people (no more than 20 - if trade is carried out or domestic services). If an employee requires an indefinite relationship, denial of employment may be regarded as a violation of the law (Article 64 of the Labor Code of the Russian Federation).

Grounds for dismissal

According to Art. 307 of the Labor Code of the Russian Federation. at your own discretion, any grounds for terminating the agreement can be entered into the sample employment contract for individual entrepreneurs. The main thing is that they should not be discriminatory. For example, a store owner may fire a salesperson for not issuing a check or avoiding using a cash register, since this is his direct responsibility. But cut an employee if his qualities change that do not affect the quality of performance official functions the law prohibits.

In order to avoid litigation in the future, the employer cannot fire the offending employee immediately. He must follow the entire application procedure. disciplinary actions- first issue a warning, then a reprimand, and only then terminate the contract.

Employment contract of an individual entrepreneur with an employee sample 2016

Employment contract of an individual entrepreneur with an employee in 2017: sample and form

If you decide to take employees into your business team, you will need an employment contract. It, like an airbag, will protect you from many controversial situations and will allow you to avoid problems with the law. There have never been clear requirements for filling out the document, except for the presence of mandatory details. So in 2017, but something has changed - businessmen whose firms fall into the rank of micro-enterprises will be able to use a form specially developed for an individual entrepreneur employment contract with an employee type sample. What for? To abandon the numerous personnel documentation that it replaces. The article answers the question of how to draw up a regular contract and a standard one.

Can IP enter into TD

The labor code states that both legal entities and individuals can join the number of employers. The latter are subdivided:

  • For individuals with the status of an individual entrepreneur;
  • For individuals without status, concluding contracts with other people who will serve them or perform any work.

According to the labor legislation, individual entrepreneurs can conclude an employment contract with individual entrepreneurs. Such a document is drawn up in the standard manner, but in the header of the agreement it should be indicated that both parties have the status of an individual entrepreneur and the details of the relevant certificates.

Model contract 2017: download the form

From 2017, all individual entrepreneurs and organizations that fall under the concept of a micro-enterprise will be able to apply a standard form of an employment contract. Developed for a new employment contract between an individual entrepreneur and an employee, a sample of a standard form has a more capacious content, 99% corresponding to all legislative norms. And it replaces a whole list of regulations, which now some employers will be able to refuse:

  • Regulation on payment;
  • Labor regulations;
  • Labor protection instructions;
  • job descriptions;
  • Shift schedule.

As a general rule, an employment contract is concluded with any employee who works in an 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 the inspection by the 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 and domestic 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 he is considered a prisoner. 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 rule 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 general order.

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 given, at his choice, either financial 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, severance pay upon termination is not paid. 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 up to two months, in the event of its termination, is obliged to writing notify the employer 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

Sometimes a company needs a particular specialist for a certain time. In this case, it is convenient to conclude a fixed-term employment contract. Practice shows that not everyone knows how to do this correctly and what features of taxation need to be taken into account.

As a general rule, a fixed-term employment contract is concluded when an employment relationship cannot be established for an indefinite period due to the nature of the work to be done or the conditions for its performance.(Article 58 of the Labor Code of the Russian Federation). It is important to remember that the conclusion of such an agreement, unless, of course, it is expressly provided for by law, is a right, not an obligation, of the parties. The initiative to establish in an employment contract the terms of its validity may come from both the employer and the employee. Moreover, the Labor Code provides a list of situations in which it is possible to conclude a fixed-term employment contract at the initiative of one of the parties (Article 59 of the Labor Code of the Russian Federation).

The list provides for about 20 cases when the terms of the labor agreement allow setting the term of its validity, in particular:

  • when replacing an absent employee, for whom, according to the law, the place of work is retained;
  • when carrying out work that goes beyond the normal activities of the organization (reconstruction, installation, commissioning and other works);
  • when performing temporary (up to two months) or seasonal work;
  • at the conclusion of contracts with heads, deputy heads and chief accountants of organizations;
  • at the conclusion of contracts with part-timers;
  • when concluding an agreement with students who study at full-time departments of universities.

A fixed-term employment contract can also be concluded if the employer is a small business or an individual. Provided that the number of employees of small enterprises does not exceed 35, and in organizations of retail trade and consumer services - 20 people (Article 59 of the Labor Code of the Russian Federation). However, we note once again that in any case, it is allowed to establish the period of validity of an employment contract only when it is not possible to conclude an open-ended contract. The exception is employers - individuals. They are allowed to conclude a fixed-term employment contract by agreement of the parties, which follows from Article 304 of the Labor Code of the Russian Federation.

Features of a fixed-term employment contract

There is an opinion that a fixed-term employment contract is beneficial to the employer, since the employee in this case has fewer rights. However, such a statement can be disputed. Firstly, it is forbidden to conclude fixed-term employment contracts in order to deprive employees of the rights and guarantees that they are entitled to when signing open-ended agreements (Article 58 of the Labor Code of the Russian Federation). Thus, in a fixed-term contract there must be a reference to the circumstance or reason that served as the basis for concluding such an agreement. Secondly, employees with whom a fixed-term employment contract is concluded are subject to almost all the rights and guarantees provided for by law. Moreover, if such an agreement has not been terminated after the expiration of the term and the employee continues to work, the agreement is considered concluded for an indefinite period.

The Labor Code does not require an employee to draw up or provide any special documents when concluding a fixed-term contract. As usual, it is enough for him to sign an agreement in writing, and for the employer to issue an order to hire a new employee. In the order, as in the contract, it makes sense to indicate that the contract is urgent.

The general rules also apply to the termination of a fixed-term labor contract. In case of termination of the contract after the expiration of the term, it is necessary to notify the employee in writing at least three days in advance. An employment contract concluded for the duration of the performance of the duties of an absent employee is terminated when the latter returns to work. This is stated in article 79 of the Labor Code of the Russian Federation.

At the same time, one should not forget that for certain categories workers labor legislation provides for the regulation of relations. For example, the contract expired during the woman's pregnancy. The firm is obliged, at her request, to extend the term of the employment contract until she has the right to maternity leave. This procedure is provided for in Article 261 of the Labor Code of the Russian Federation.

With regard to fixed-term employment contracts, it is also possible to note situations where the Labor Code provides for a special procedure for regulating labor relations:

  • regulation of the work of the head of the organization (Chapter 43);
  • regulation of the labor of employees who enter into a contract for a period of up to two months (Chapter 45);
  • regulation of the labor of workers employed in seasonal work (Chapter 46);
  • regulation of labor of workers employed by employers -- individuals(chapter 48).

For example, when concluding an employment contract for a period of less than two months, an employee cannot be given a probationary period. When hiring an employee for seasonal work, the probationary period cannot exceed two weeks. These features must be taken into account when deciding whether to conclude a fixed-term employment contract.

Features of taxation

At first glance, the current tax legislation does not provide for any peculiarities in connection with the conclusion of a fixed-term employment contract. Nevertheless, in practice, when calculating personal income tax, accountants face difficulties.

When determining the amount of personal income tax withheld from an employee's income, attention should be paid to the application of standard tax deductions. Recall that the standard tax deduction is provided only if there is a written application from the employee. If an employee works on the basis of a fixed-term part-time employment contract, he can apply for a standard deduction with any of the employers.

Problems may arise when a fixed-term employment contract is concluded not from the beginning of the year. If an employee has not worked anywhere for several months before signing the contract, questions arise about providing him with standard tax deductions for this period. Note that the right to a standard tax deduction is associated with the receipt of income during the time of work in the organization. These deductions are not available for months in which the worker was unbound labor relations with the organization. Thus, the tax base of an employee can be reduced by the amount of standard tax deductions only for the period of work under a fixed-term employment contract. If the employee, before concluding a fixed-term employment contract, received income from another employer, then deductions are provided taking into account the income received.

Employees with whom a fixed-term employment contract is concluded are subject to the same rules for maintaining tax cards (Form 1-NDFL) as for other employees. It does not involve any features and filling out a certificate of income (form 2-NDFL).

It is beneficial for the employer to enter into contracts with new employees for a certain period instead of permanent contracts. This is due to the fact that knowing when the work of specific staff units is completed, it is easier for the manager to plan the structure of positions and the salary fund.

In organizations that provide special conditions permanent employees, and for temporary employees providing only legally guaranteed rights, a fixed-term contract allows you to avoid additional expenses for bonuses and other additional payments.

In addition, the employer can be sure that he will not have any special problems with the termination of cooperation with such employees, because they also make plans for the upcoming dismissal and, having been notified three days before the expiration of the contract, are already ready to leave the company.

However, when drafting the Labor Code, the legislators took into account the likely desire of employers to abuse fixed-term employment contracts and provided in Article 58 that if, in the opinion of the court, there are no special grounds for choosing the temporary nature of the contract, it will be reclassified into an indefinite one with the imposition of penalties on the employer.

With whom can I get a temporary cooperation?

A detailed list of persons with whom it is lawful to conclude an agreement for a specific period is provided for in Article 59 of the Labor Code. The foreseen cases can be divided into three categories, depending on the moment that determines the end of the contract:

  • "deputies" - until the moment a permanent employee starts working, whose duties were performed during his long absence;
  • "conscripts" - until the completion of certain work:
  • obviously temporary;
  • beyond the ordinary activities of the organization;
  • conducted abroad;
  • public nature;
  • in the form of an internship;
  • as an alternative service, etc.
  • "seasonal" - until the completion of work related to natural and climatic features.

Also, by mutual agreement of the parties, it is possible to conclude temporary contracts with:

  • those who go to work in small businesses;
  • pensioners;
  • "Deputies" elected by competition;
  • managers and chief accountants;
  • full-time students;
  • partners, etc.

But here it is important to remember that if such an employee decides to appeal the urgent nature of his employment contract, and the court decides that the decision on the temporary contract was not voluntary on the part of the employee, then the employer will have to reinstate such an employee in a position on a permanent basis.

Contents of a fixed-term employment contract

The execution rules for a temporary employment contract are almost the same as for an indefinite employment contract, and indicate the mandatory presence in the text:

  • information about the signing parties - the name of the employer and the full name of the employee, their addresses;
  • passport data of the employee or information about other documents proving his identity;
  • TIN of the employing organization;
  • place and date of signing the contract;
  • place of work and position;
  • official salary;
  • working conditions;
  • social guarantees;
  • privacy issues, etc.

However, there are features: unlike the contract for permanent cooperation, two more points must be stipulated in the temporary contract:

1) Its validity period, admissible in the form of:

  • a specific date - then this day will be considered the last day of the employee's work under this contract;
  • the moment an event occurs - for example, the signing of an act of completion of work or the entry to work of an employee who was replaced by a "conscript" - then the dismissal will be postponed until this event occurs.

2) Justification of the temporary type of contract, preferably including the wording of the category of employees from the list of Article 59 of the Labor Code of the Russian Federation and an explanation of the conditions and nature of the work, demonstrating the preference for choosing a fixed-term contract.

If a fixed-term employment contract does not contain an exact definition of the moment of its termination, then it can automatically be recognized as open-ended. And if there is no justification for the temporary nature of the contract, the employer may face a penalty for evading the provision to the employee of the rights provided for persons who enter into open-ended contracts.

What threatens for the unreasonable conclusion of a fixed-term contract?

V judicial order the temporary nature of the employment contract can be appealed. The court may decide to change the status of the contract to permanent when:

  • the employer in the text of the contract did not indicate the exact term for its termination;
  • fixed-term contracts are concluded with an employee for the same job duties several times in a row;
  • conditions have been identified that make it possible to assume that an employee is forced to conclude a temporary contract instead of an indefinite one;
  • the employer violated the three-day notice period for the termination of the contract.

In all these cases, the employee will be reinstated in a position by judicial procedure and on a permanent basis. In addition, he will be entitled to payment from the employer for the period from the moment of the canceled dismissal until restoration (as for forced absenteeism), compensation for moral damage, costs for lawyers, etc.

The employer, in the event of a judicial change in the status of an employment contract, may be held administratively liable under Article 5.27 of the Code of Administrative Offenses of the Russian Federation in the form of:

  • for organizations - a fine from 30 to 50 thousand rubles. or suspension of activities for up to 3 months;
  • for officials- a fine from 1 to 5 thousand rubles, and in case of a repeated violation - disqualification from one to three years.

Probationary period for a fixed-term contract

To check the suitability of the candidate for the chosen position, his professionalism and competence, the employer has the right to establish a probationary period for the employee. If the employment contract does not say anything about such a period, then it is not provided for, and the employee immediately begins to work on a general basis. This is provided for by Article 70 of the Labor Code of the Russian Federation. However, if the probationary period is stipulated by the terms of the contract, then he, according to general rules should not last more than three months.

The urgent nature of the employment contract makes its own adjustments to the envisaged duration probationary period. When concluding a contract for a period:

  • less than two months - a probationary period cannot be established;
  • from two to six months - the testing period cannot exceed two weeks;
  • from six months to five years - on a general basis.

In addition, the legislation provides for a list of persons who cannot be subjected to a probationary period. For example, pregnant women, minors elected to a position by competition, etc. So the appointment of tests under a fixed-term employment contract is possible and legitimate, but subject to a number of the listed conditions.

What to write to a temporary worker in labor?

When concluding a fixed-term employment contract, according to the letter of Rostrud dated 04/06/2010 No. 937-6-1, his validity determined by the text of the contract itself and reflected in the employment record in work book is not subject to.

The fact is that the purpose of maintaining a book is to calculate the length of service, and it is conducted according to the dates of hiring and dismissal without taking into account the urgency or perpetuity of the contracts concluded. Thus, the wording introduced into the labor will be: “Accepted to the position ...”, and phrases like “A fixed-term contract has been concluded ...” will be recognized as erroneous.

Leave under a fixed-term employment contract

The term of the contract does not affect the employee's right to annual paid leave. However, the number of days possible for rest will directly depend on the duration of cooperation between the employer and the temporary worker.

  1. Less than two months - 2 working (not calendar!) Days for each month of work.
  2. From two months to five years - in the usual way, i.e. 2.33 calendar days for each month or 28 calendar days in year.

If at the time of the expiration of the contract or dismissal for another reason, the employee has the days of non-vacation leave provided for by law, then he must be paid compensation in the amount of the due vacation pay.

If an employee decides to take days of legal rest immediately before dismissal and is on official leave at the time of termination of the contract, then his last working day will be considered the last day of vacation, and non-dismissal on the date set by the contract will not be grounds for recognizing the contract as indefinite.

Do I pay for sick leave with an urgent contract?

The law provides for employees with whom fixed-term employment contracts are granted social guarantees on par with permanent employees. Sick leave provided by temporary employees must be paid in the prescribed amount and on time.

The only thing current restriction due to the fact that the maximum possible compensation for sick days for employees with a fixed-term contract will be 75 days.

Is a temporary worker entitled to severance pay?

The availability of mandatory payments upon dismissal depends on the duration of the contract:

  1. Less than two months - no severance pay;
  2. From two months to five years - as in the case of dismissal of a permanent employee: in the amount of two weeks' earnings.

A similar amount is provided for in the event of dismissal associated with the termination of the employer's activities. The only difference will be that seasonal employees must receive notice of termination of a fixed-term contract due to the liquidation of the employer not in three, as with other dismissal options, but in seven days (Article 296 of the Labor Code of the Russian Federation).

When deciding to conclude a fixed-term employment contract with an employee, the employer must remember that this type of contract often becomes the subject of litigation. At the same time, the validity and legitimacy of the temporary nature of the contract will have to be proved to the employer. In order not to receive penalties, it is better to choose the fixed-term version of the employment contract only in relation to the persons listed in the Labor Code, and remember about the conditions provided for by law for temporary workers.

The company can hire employees either for a permanent term or for a strictly limited one. In the latter case, a temporary employment contract is signed.

What does fixed term contract mean?

When hiring an employee, depending on the circumstances of a particular hiring and the specifics of the organization’s work, a fixed-term employment contract is signed either taking into account the work assigned (part 1 of article 59 of the Labor Code of the Russian Federation), or by mutual agreement of the manager and employee (part 2 of article 59 of the Labor Code RF). This is the main difference between a fixed-term employment contract and a contract for an indefinite period.

Grounds for concluding a fixed-term employment contract

To date, these are the following:

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

If there are no circumstances of the temporary nature of the work, the employee and his manager may agree to sign a fixed-term employment contract. However, this can be done in strictly defined cases (part 2 of article 59 of the Labor Code of the Russian Federation):

  • hiring to a small business entity (number of employees - less than 35, and in retail and consumer services - less than 20);
  • hiring old-age pensioners or employees who, for health reasons, are only allowed to work temporarily;
  • hiring an employee to the region of the Far North, if he is supposed to move;
  • recruitment of employees on a competitive basis;
  • hiring creative workers(media, circuses, theaters, etc.);
  • hiring managers, their deputies and chief accountants of companies;
  • hiring full-time students;
  • recruitment of seafarers;
  • hiring partners;
  • hiring employees to prevent emergencies, accidents, epidemics and other similar events, as well as to eliminate the consequences of these events, if they have already occurred.

How to draw up a fixed-term employment contract?

First of all, at the stage of drawing up the contract, it is necessary to fix in it its term and justification for urgency, otherwise the contract will de jure be considered unlimited (part 3 of article 58 of the Labor Code of the Russian Federation). In this case, it will be possible to terminate it only on the general grounds of the Labor Code of the Russian Federation for open-ended contracts (Chapter 13 of the Labor Code of the Russian Federation).

The rest of the terms of a fixed-term employment contract are no different from the conditions in an open-ended contract.

Fixed term contract and sick leave

Labor legislation establishes a rule according to which an employee cannot be fired at the initiative of the employer during illness (Article 81 of the Labor Code of the Russian Federation). At the same time, it should be taken into account that dismissal due to the expiration of the temporary contract is not dismissal at the initiative of the employer.

Therefore, it is possible to dismiss an employee under a fixed-term employment contract, if the latter has expired, even during his illness. The company is still obliged to pay sick leave with a fixed-term employment contract (Article 183 of the Labor Code of the Russian Federation), however, if the contract with the employee was concluded for a period of less than six months, no more than 75 days of illness are paid, in all other cases - the entire period of temporary disability of the employee, with whom a fixed-term employment contract has been concluded (see Article 6 of the Federal Law No. 255-FZ).

Fixed-term employment contract and work book

The work book when hiring and dismissing under a fixed-term employment contract is filled out in the same way as in the case open-ended contract.

There is only one important feature of making an entry upon admission - the term of the employment contract in the work book is not fixed (

 

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