How to conclude a fixed-term employment contract with an employee. Fixed-term employment contract: instructions for use. Who can conclude such a document and with whom

In this article, we will look at how a fixed-term employment contract is drawn up, as well as find out why it is needed and what role it plays.

Terms and basic concepts

A fixed-term employment contract is a document according to which the employee will work for a certain period of time. The chief in this case concludes that after the end of this period labor Relations will be completed.

People decide to secure such an agreement due to the occurrence of certain reasons, for example, if the job seeker is not entitled to conclude demon fixed-term contract:

Due to the fact that the employee who previously held vacant place, is currently on maternity leave (it is established by law that this position still belongs to that employee).
In connection with seasonal work, when, for example, a picker is needed, and the organization cannot provide effective work without attracting additional labor.
Urgent work employment contract, where employees are now recruited, is not permanent and lasts about 2 months. For example, if a company wanted to use advertising, so now it needs promoters (see) who will “promote” the organization by distributing leaflets on the street.
New employees may also be required if the company is just starting to "go out", so the designer needs to develop a logo or create a website.
The organization now needs people who will be involved in the same area: interns, trainees, etc.
There are also situations when it is possible to conclude an open-ended contract, but on the basis of the law it is better for the employee to set a specific date for the end of work in the organization.

Who is most often included in the circle of such persons:

managers, their deputies and a specialist in accounting companies;
full-time students;
part-time workers;
people who work to prevent emergencies;
retired retirees after reaching a certain age and persons with disabilities who cannot work on a permanent basis due to poor health;
IE employees, where the number does not exceed 35 people;
workers on sea and river vessels;
persons who are looking for work in connection with moving to the regions of the Far North;
creative workers (writing, theater, cinema, circus).

If you would like to see a complete list of occupations, all information can be found in Articles 58 and 59 Labor Code of the Russian Federation.

Sample document

When it is necessary to conclude a fixed-term employment contract

In what cases should such a form be drawn up:

for the period of replacement of an absent employee, to whom he is still assigned former place work;
for a period when it will be necessary to perform temporary work;
seasonal work;
if a person is transferred to work abroad;
for the implementation of labor that goes beyond the usual activities of the employer;
with people who are going to conclude a contract with a company created for a short period of time;
with employees who get a job to carry out a specific job in situations where its end cannot be set on a specific date;
to carry out work directly related to practice, or additional professional education in the form of an internship;
in the case of employment in the authorities state power and local government, in political parties and other public associations;
with people who have been redirected by the PES of the population to work of a non-permanent nature and public works;
with persons who are going to pass AGS;
other situations fixed by law.

Positive and negative characteristics

The following positive features were identified for the employee:

the presence of certain social guarantees;
receipt of a specific amount after dismissal due to the termination of the enterprise;
a fixed-term contract can be drawn up only if all the requirements prescribed by law are observed.

However, negative properties are also highlighted:

leaving work due to the fact that the contract has terminated;
dismissal due to the fact that an old employee returned;
difficulties encountered due to the fact that it is necessary to take care of the child;

As for the person who hires employees in connection with the execution of a temporary contract, then the disadvantage for him can be the pregnancy of the employee, and, accordingly, the suspension from office for some time. In this situation, the contract cannot be terminated only if the organization ceases to exist.

If we talk about the positive side, then it must be said that in this case the employer can fully control the actions of the employee.

What are the conditions for concluding a fixed-term employment contract

The Labor Code sets out the basic requirements and rules. The document contains unconditional grounds and the conclusion of the document in connection with the agreement of both parties.

Consider a fixed-term employment contract and its terms:

fixation of the contract due to another employee leaving the place of work for some time;
the establishment of temporary or seasonal work;
work abroad;
due to an increase in volumes at the enterprise;
if the company will only operate for a specific time;
during the internship period of the future employee;
during the attachment to the vacancy in question;
with non-permanent funding of an elected body;
when working from the labor exchange and at the AGS.

The main features of the contract by agreement of the parties

Dismissal in this case will have several nuances:

Article 78 of the Labor Code of the Russian Federation contains information that the document can be terminated at any time. Thus, the employee can be fired, even if at this time he is on vacation or on sick leave. With this foundation, the boss can make the cut as quickly as possible.
The employee also has a number of advantages in this case, since there is no need to notify your boss within two weeks that you are leaving the place of work. The employee will receive payments immediately, not partially. An additional plus is that upon dismissal there will be no need to discuss this topic with trade union organizations(81 of the Labor Code of the Russian Federation).

The contract for vocational training in an organization with a future employee or for vocational retraining with an employee of this organization may also be terminated (208 of the Labor Code of the Russian Federation). Such a document must be terminated at the moment when it ceases to be valid or in connection with the conditions specified in the form.

It is possible to extend the term of the contract, which establishes a fixed-term employment relationship, for a period of time.

If you choose to renew indefinitely, then you will not need to sign additional documents, since under the terms of the contract, over time, it ceases to be valid. However, a relationship based on an agreement between the employee and the employer on the employee's personal performance labor function are still real even after the date that sets the end of the fixed-term employment contract: he will be given a place in the office, and the citizen will also receive a salary.

If you are going to renew the employment contract for a certain period, then you need to draw up an additional application document. We remind you that the duration of a relationship under a fixed-term contract cannot exceed a period of up to 5 years.

Extension of a fixed-term employment contract for a new term

In 2018, it was established that an agreement for a specific time is needed more by the employer than by the employee. Why? This is explained as follows: the bosses take responsibility only for a while, so at any time they can break the contract. It is more profitable for an employee to get a job on a permanent basis, since he can independently decide when to leave work.

That is why the extension of a fixed-term employment contract for a new term is carried out only if the person has really serious reasons for this.

How to hire staff on a fixed-term employment contract

Let us consider in more detail what are the stages of registration of the document in question:

Direct conclusion of the contract. Here you need to specify the period (a specific date, if any, and other mandatory conditions). Before signing the document, the employee must study the internal regulations.
The company issues an order for the employee to start work. The employee must sign the form within three days.
Registration of a work book.
Filling in a personal card in accordance with the sample.

Probation

Article 70 of the Labor Code of the Russian Federation contains a complete list of people for whom probation... This includes individuals who:

draw up a contract for up to 2 months;
passed the competition;
receive a salary for an elective position;
persons of the AGS;
are engaged in the upbringing of their children up to 1.5 years old and pregnant women;
graduates who have just graduated and are now getting a job on a diploma, as well as students who have been in practice at this enterprise;
have not reached the age of 18;
were transferred from another boss.

Employees who will be at the enterprise within 2-6 months - 2 weeks.
Managers, deputies, chief accountants - 0.5 years.
Employees performing certain duties in accordance with their position in the civil service - a month-6 months-a year.
In other cases, it is set for 3 months.

Features when working with pensioners

The boss can conclude a contract with the pensioner for a certain period. However, there is a nuance here: if you now have an open-ended contract, but upon reaching retirement age the citizen wanted to transfer the contract to an urgent type, there is no need for this.

Holidays

A vacation or a sick person receives according to the basic rules, which do not depend in any way on the time period of the contract.

How to fire a pregnant woman

Article 261, part 2 of the Labor Code of the Russian Federation states that at a given period in a woman's life, a fixed-term employment contract cannot be terminated, even if its term for concluding a fixed-term employment contract has expired.

On the basis of a written application, it is only possible to extend the contract until the moment the child is born.

Here, too, there is a small nuance: if the girl was a replacement for an absent employee, then after his release, the expectant mother will have to choose another one. open vacancy... If it is impossible to make a translation, then it is necessary to provide a written refusal from the worker.

For how long is a fixed-term employment contract

A fixed-term employment contract is concluded for a period of up to 5 years, and the minimum is not limited, that is, in fact, an agreement can be concluded for 1 day.

The end or termination of the term of a fixed-term employment contract and the reasons for such a procedure

Early termination can occur in the following situations:

with the consent of both persons (Article 78);
execution of an application from an employee (Article 80), as well as providing the head of this information for 14 calendar days;
at the request of the head of the company (Article 81), in this case he must notify the employee at least one month before the expiration of the contract.

Is there a way to transfer a fixed-term contract to an unlimited one

If no one has expressed their desire to terminate a fixed-term employment contract, then it is considered that now the contract is indefinite.

Sample of an open-ended employment contract

Features of a temporary employment contract

In this case, the person must necessarily indicate the period for which he concludes the contract.

However, there are cases in life when it is impossible to say for sure about the termination of the document ( maternity leave). In this situation, the end date of the contract will be set after the employee leaves the vacation.

As we can see, a fixed-term employment contract requires a careful study of all aspects. Prolongation of a fixed-term employment contract is possible only in certain cases, which we considered earlier. Hiring on a fixed-term employment contract may occur, but this is a more profitable option for the employer than for the employee himself.

Interesting Facts

Temporary work is most often liked by students, housewives or retirees who want to earn extra money in their free time.
Arbitrage practice shows that frequent renegotiation is not in accordance with the law.
In the history of entrepreneurship, it happened that the business owner had to liquidate the company in order to dismiss the unwanted future mother in accordance with the law, so as not to get into legal squabbles.

What is a fixed-term employment contract? What does it mean? The word "term" indicated in the title of the term does not mean at all the speed of making a decision to conclude a deal, but duration of the employment relationship.

A fixed-term employment contract means that the company at this particular moment needs an employee for the duration of a certain job, and its manager assumes that at the end of the term, the employment relationship will be terminated.

For example when it is impossible to conclude an open-ended contract, which is usually associated with:

female worker vacant post earlier, went on maternity leave. The place is reserved for her in accordance with the Law;
for seasonal work... Harvest pickers, drivers of summer routes, auxiliary workers of ski tracks are needed. The enterprise restricts the weather or natural conditions, therefore, the maintenance of a full staff year-round is economically inexpedient;
the work for which the recruitment of employees is open is not permanent in principle and the need for it lasts no more than two months... For example, a company plans to hold a promotional campaign and needs promoters who will offer potential buyers leaflets indicating the address of a new trading house or office;
if you carry out promotions is possible at least periodically, then there are activities that generally go beyond current activities... Reconstruction of the premises is required, the development of a logo for a new company, the creation of a website, a lawyer is needed to consider the case in the Arbitration Court. Such a task can be entrusted to a specialized company, or it can be performed by the efforts of newly hired employees.

Citizens, performing alternative service or sent for compulsory public works; trainees; trainees; persons accepted for work abroad; the elected deputies are also employed for a predetermined period.

When an open-ended contract can be concluded, but for reasons of rotation, legal requirements for employment selected categories citizens or working conditions, it is desirable to limit it to the end date. Wherein both parties must agree on the urgent nature of the contract.

Examples of such a voluntary restriction:

managers, their deputies and chief accountants of enterprises. Due to the responsibility assigned to these positions, the owners legal entities thus, they insure the risks of ineffective enterprise management;
full-time students;
part-time workers;
emergency responders;
newly employed old age pensioners and disabled people who are not allowed permanent employment for health reasons;
employees at enterprises of private entrepreneurs, where the number is not more than 35 people;
employees on sea and river vessels;
employed with the condition of moving to the regions of the Far North;
creative workers of editorial offices, theaters, film industry, circuses (the list of such professions and positions is approved by the Government of the Russian Federation) and others like that.

Subtleties of conclusion

What is the difference between a fixed-term employment contract and a regular employment contract? Upon expiration of a fixed-term employment contract, the employee is subject to dismissal... This is the difference between a fixed-term employment contract and an ordinary "permanent" employment contract. If the term of a fixed-term employment contract is not stipulated - you are employed "permanently", your dismissal is not expected.

In terms of basic guarantees and rights of workers, there should be no differences with those employed on the condition of indefinite employment. Temporary workers have the right to leave, normal working hours, and wages. They are provided with overalls and personal protective equipment, they are subject to all local regulations enterprises and Regulations on labor protection.

Duration

For how long is a fixed-term employment contract concluded? What is the maximum term? And what is the minimum?

Fixed-term employment contract is concluded for a period not exceeding five years Is the limit (maximum) period, the minimum is not specified in the Law.

It:

concluding an agreement for up to two months;
selected to fill a vacancy by competition;
holding a paid elective position;
conscripts of alternative civilian service;
women who are raising children under the age of 1.5 years and pregnant employees;
graduates who first get a job in their specialty within one year from the date of receipt of the diploma (for educational institutions with state accreditation), students who completed an apprenticeship at the same enterprise;
minors (under 18);
persons transferred from another employer.

employed for 2-6 months - 2 weeks;
managers, their deputies, chief accountants - six months;
civil servants - from one month to six months or up to a year (Article 27 Federal law No. 79-ФЗ dated July 27, 2004);
other cases - 3 months.

Registration of a work book

If the employment contract is concluded for a specific period, upon admission it is done in the usual manner and does not contain references to the period ( Rostrud letter No. 937-6-1 dated 06.04.2010). Violation of this rule entails administrative responsibility of the employer under Article 5.27 of the Administrative Code of the Russian Federation.

But upon dismissal, if the employee terminates the employment relationship, an entry is made "upon the expiration of the employment contract, paragraph 2 of the first part of Article 77 of the Labor Code of the Russian Federation."

Since the wage fund for temporary and permanent workers does not differ, the company deducts mandatory payments to funds social insurance for all, and the insurance experience for all employees is calculated according to the same rules.

Vacation and compensation

Submission procedure annual leave does not differ from the usual one, employees are granted leave of 2 days for each month of work, calculated on a six-day working week(Articles 291, 295 of the Labor Code of the Russian Federation, Letter of the Ministry of Labor N 625-VV dated 01.02.2002).

Compensation for unused vacation also accrued as usual, however, here it must be remembered that with employment less than 15 days, it is still valid article 35 of the Rules of the USSR NKT on regular and additional leave No. 169 dated 04/30/1930"When calculating ... surpluses of less than half a month are excluded from the calculation, and surpluses of at least half a month are rounded up to a full month."

Maternity leave for female employees provided as usual(). But its duration does not depend on the method of registration, just the dismissal of the employee will occur on the last day of maternity leave.

But parental leave until they reach one and a half years are provided only for the period of the contract ().

You can download a sample of a fixed-term employment contract.

"Pros and cons"

So, let's look at the pros and cons of a fixed-term employment contract for an employee. Temporary nature of work, of course, limits the desired conditions for employment, but in the case when it is not possible to find a permanent position, one should be guided by other considerations: the size of wages, working conditions, gaining work experience in a successful company, filling a forced break in case of unemployment.

And then, life goes on and circumstances may change: for example, You will establish yourself as especially valuable employee and you will be offered another position in the structure of the same enterprise, at the end of the parental leave, the employee will go on the next pregnancy leave, or change the job to the one that she considers most suitable.

Temporary work is often in demand by students, housewives or retirees who want to earn extra money.

If your profession is a builder or a specialist in information technology, for you, most likely, there is a job in such a niche, if you are not an employee of a specialized organization and are able, attracting the material resources of the enterprise, to perform narrowly professional tasks.

For an employer who wants to cut costs and has the ability to control work on his own, attracting specialists for a specified period can be no less profitable.

If performed capital works in an economic way, if a permanently occupying specialist has taken out sick leave or went on vacation, and the labor market allows attracting additional labor resources- why not take advantage of the proposed legislation?

The personnel service, in this case, must function flawlessly, since, if the date of dismissal is missed - the person remains on the staff permanently.

Completed stage

So, the end date of the concluded contract expires. What are possible ways? Renewal? Completion? How to fire?

Let's consider typical cases:

. The employee is issued a final payment and the work book is returned with the entry "after the expiration of the term ...". Everything is as usual, if the company complied with the conditions of detention and had to do so legal grounds;
– if a woman is pregnant or caring for a baby up to 1.5 years old;
the reduction of an employee under a fixed-term employment contract is possible by the decision of the employer, even when the term of the contract has not expired. The employee is paid compensation, dismissal benefit within two months;
translation into permanent job (by agreement of the parties or oversight of the personnel department);
early dismissal on the initiative of one of the parties - similar to generally accepted procedures;
re-registration. Judicial practice shows that multiple renegotiations violate the Law and the employee will have the right to appeal against the next dismissal on these grounds with reinstatement at work.

Each person has the right to independently decide what is more important for him, stability or a constant change of activities and impressions. But whatever you choose, it is important to remember the "rules of the game", to be protected by the law. We hope our article has helped you better understand one of the issues of labor relations.

Useful video

What is a fixed-term employment contract, in what cases and in what order it is concluded, you will learn in the video below:

Labor contract (TD) is primarily a document. This agreement can be called a contract, it regulates the relationship arising between the parties to the labor process.

According to the contract, a person hiring a job undertakes to perform certain types of work at the enterprise, prescribed in the terms of the contract, as well as to follow all the rules and regulations of the established schedule.

The employer, for his part, is obliged to provide all working and rest conditions and adequately pay for the labor functions performed by the employee.

TD can be:

Urgent, that is, which indicates specific terms of work;
Indefinite, that is, in such a contract, the terms are not specified.

The STD must necessarily state why the contract cannot be extended indefinitely. For example, when a person is hired for a period of illness of another employee, or seasonal work. The total term of the STD cannot exceed five years.

If the time frame of work is not specified in the TD, then it will be considered indefinite.

Grounds for conclusion of STD

These grounds can be divided into two groups:

When deadlines are set depending on the nature of the work being performed;
The conclusion of a fixed-term contract occurs by mutual agreement of the employer and the employee.

The 1st group includes the following bases:

For the period of absence of the main employee at the workplace, when his salary is retained for him. This can be when the main employee is absent due to illness, is on maternity leave, or on annual paid leave.
For the period of temporary work, such a contract is concluded for a couple of months.
, implies several months during which the employee's labor activity will be carried out. For example, work on sowing or harvesting grain and other crops, during the heating season and other work related to weather conditions.
When a person goes to work, by order of the employment center.
If the work goes beyond the main labor activity, the terms of which are agreed in advance. For example, installation work or reconstruction of any equipment.
Election to office for an indefinite period, for example, election to an election commission.
If a person is sent to work abroad.
With persons for civilian alternative service.
With a person admitted to a sports organization.

With such registration for the position and the conclusion of the STD, the consent of the employee should not be taken into account.

By agreement between the two parties to the employment relationship:

If the person has completed full-time training.
Work at individual entrepreneur, or in the small business sector.
If a person who has reached retirement age gets a job.
If a person is recruited who is recognized as a disabled person, but has the right to lightened work, and his labor functions are determined by a time frame.
When employed in places of the Far North and territories equated to it.
For work in emergency situations, disasters and elimination of the consequences after them.
If a person has passed a competition to fill a certain position.
Managers, his deputies and chief accountant are accepted with the conclusion of the STD, regardless of the form of ownership of the enterprise.
When a person gets a part-time job.
When the work is related to navigation.

In such cases, the opinion of both parties is taken into account, and the period for which the fixed-term contract will be concluded is stipulated.

Features and procedure for concluding STD

If an employee decides to get a job of a temporary nature, he must provide a number of documents: passport, TIN, SNILS, work book, document confirming any kind of education, if any. Also, an accepted employee can provide documents on his military service and obtaining qualifications for the position held.

In the case when a person gets a part-time job, he needs to provide a copy of the work book or a certificate from the main place of work.

The employee should write an application according to the model for admission to the relevant position. The form of such a statement is different for each organization. Such a statement must necessarily indicate the reason for the temporary nature of the work.

The employer must familiarize himself with these documents and make a decision on hiring a person, notify him about the rules of work and rest in the workplace and directly about what the future employee will do, as well as familiarize him with local acts of remuneration.

The next step is the preparation and signing of the STD.

When drawing up this document, you must indicate:

Surname, name, patronymic of the received employee;
Passport data and other details of the employee (address of residence, age or date of birth, TIN and SNILS, education);
Start and end of urgent work;
Place and time of drawing up and signing the contract;
If the contract is signed by a specially authorized person, then this should be indicated.

The place of work must be indicated, it can be any structural unit of the company or a branch in which the employee will work. You should also indicate the type of work and position held, as it is indicated in, its nature according to the qualifications held.

An important aspect when concluding such an agreement is the indication of the wage system, premiums for harm, for work at night, on holidays and weekends.

Next, you need to indicate how many days a week are workers, and how many days off, there may be a shift nature of work. To make sure of professional suitability this employee, indicate the probationary period of work. Usually a probationary period of up to three months is established, and when a chief accountant or employee is hired for the position of deputy director, up to six months.

If during the conclusion of the contract, any conditions or data about the employee were not entered, this is not considered the reason for not concluding it. This can be done later, in the form of an annex to the contract or an additional agreement between the parties, which are a mandatory part of the STD.

All terms of the contract can also be changed by agreement between the worker and the director.

The STD may stipulate conditions for non-disclosure of state secrets, if necessary.

Further, the STD is signed by the two parties to the labor relationship and legalized by the official seal of the organization. Make up two copies of the contract, one of which is stored in the organization, the other is handed over to the employee.

The last stage of registration of labor relations is the issuance of an order for employment. A copy of such an order, after three days from the date of employment, is signed by the employee. A copy of the admission order is handed to the employee.

Terms of STD

The maximum term of STD is 5 years, but no more, and the minimum is unlimited, that is, it can be from one day to five years.

The only case when it is mandatory is when an employee is recognized as pregnant and brought documents from a medical institution confirming this fact.

The STD may become indefinite if the parties have not expressed a desire to terminate their employment relationship, after the expiration of the period specified in the STD.

STD ceases to operate in a number of cases:

By the joint decision of the employee and his boss;
When an employee submits an application for early dismissal... Such an application is submitted two weeks before the date of dismissal;
At the initiative of the head, but not less than 30 days before the end of the terms under the contract.

If the nature of the work is indicated in the STD, then its term ends at the end of these works.

Advantages and disadvantages of STD

The STD will be considered legal when it is concluded by mutual consent of the two parties to the employment relationship. If, starting to perform his job duties, a person did not know about the urgent nature of the contract, then he can apply to the courts. The court will issue a ruling recognizing the STD as indefinite.

In the case when the worker has already begun to fulfill his job functions, and the contract has not yet been drawn up in writing, then the court recognizes it as indefinite.

The legality of the fact depends on the legality of the conclusion of the STD. If such a nuance is not observed, the STD is recognized as indefinite and will require the restoration of the employee at the previous workplace.

An important advantage when concluding a STD is simple registration, and you can also not pay compensation for unused leave upon dismissal.

The disadvantage is the lack of competence of some employees in the legality of registration of STD, which is what employers use. Incorrect drawing up of the form and content of STD on the part of the organization entails the illegality of concluding this agreement.

Many directors are trying to conclude a STD in order to evade the provision of a package of social guarantees under the contract. They believe that temporary workers are not entitled to benefits.

In this plan temporary workers are equal to the main ones and they are provided with the same benefits. This is spelled out in the Labor Code of the Russian Federation.

Often the employer tries to manipulate the employee and concludes several STDs with one employee to perform the same job. In this case, the court recognizes the fact of the conclusion of the STD for an indefinite period.

The main disadvantage for the employee is the simplicity of dismissal, if all the legal rules for the preparation and conclusion of the STD are observed. All basic payments for a temporary employee (vacation pay, temporary disability benefits, etc.) are calculated in the same manner as for basic employees.

Important for the employee : if during the period specified in the STD, none of the parties to the employment relationship demanded its termination, and the employee continues to perform his duties, then the STD is transferred to the status of an indefinite one.

The main disadvantage for employers is the onset of the employee's pregnancy, as this entails a mandatory extension of the contractual term with her. Also, the company will need to pay her all the compensations established by law. Even if a pregnant employee wrote a statement to extend the time frame of the contract, the boss does not have the right to refuse this request until the end of the pregnancy.

Conclusion

If a person gets a job that has a time frame, then STD is concluded with him. But when drawing up such a contract, there are many different rules, norms, established by law... Proper implementation of such rules will have a beneficial effect on the employee's performance and a satisfactory end result for the employer.

Summer is the time for vacations, seasonal and temporary work. During this period, fixed-term employment contracts are most often concluded. What are their features compared to perpetual contracts? What do workers and employers lose and gain when concluding a fixed-term employment contract? You will find answers to these and other questions in the article.

Labor legislation provides for two types of employment contracts. According to part 1 of article 58 of the Labor Code of the Russian Federation, contracts can be concluded:

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

When they conclude a fixed-term employment contract

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

The grounds for concluding a fixed-term employment contract are listed in part 1 of Article 59 of the Labor Code. And in part 2 of article 59 of the Labor Code of the Russian Federation, cases are spelled out when a fixed-term employment contract can be concluded by agreement of the parties (see table below). At the same time, the list of grounds for establishing the term of labor relations is exhaustive. This is also stated in the letter of Ros-Labor dated 12/18/2008 No. 6963-TZ.

Table.

Grounds for the conclusion of a fixed-term employment contract
unconditional (part 1 of article 59 of the Labor Code of the Russian Federation)	by agreement of the parties (part 2 of article 59 of the Labor Code of the Russian Federation)
Temporary absence of the main employee Temporary work Seasonal work Work abroad Jobs outside the usual activities of the employer Temporary increase in production The employing organization was established for a specific period For the period of study and internship Election to office Ensuring the activities of elected bodies Sending an employee by employment authorities to temporary work Alternative civilian service	Employer - small business entity The employee is retired Medical indications Execution of work requires moving to the Far North Urgent work to prevent disasters, etc. Election to a position on a competitive basis Creative professions in media, cinematography, etc. * With managers, deputy heads, chief accountants The employee undergoes full-time training The employee is a part-time worker

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

If, when registering an employment relationship, the specified grounds are absent, the employer cannot conclude a fixed-term employment contract with the employee. Otherwise, at labor dispute this fact will qualify as a violation of the employee's rights. In addition, it is impossible to conclude fixed-term employment contracts multiple times without a temporary break, if it is about the performance of employees of the same job function. This, in particular, is stated in paragraph 14 of the resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2 "On the application by the courts Russian Federation Of the Labor Code of the Russian Federation "(hereinafter referred to as Resolution No. 2). Given the circumstances of the case, such contracts may be deemed concluded for an indefinite period.

We draw up a fixed-term employment contract

Now let's move on directly to the registration of a fixed-term employment contract. As mentioned above, it is only if there are grounds established by the Labor Code or other federal law. Therefore, when drawing up a contract, you need to indicate for what reasons it is concluded with an employee for a certain period. This requirement is set out in paragraph 4 of part 2 of article 57 of the Labor Code of the Russian Federation.

Mandatory conditions of an employment contract

A fixed-term employment contract, like any other, must contain mandatory conditions. According to part 2 of article 57 of the Labor Code, these are:

place of work;
labor function;
start date of work;
salary;
operating mode;
compensation;
the nature of the work;
condition on compulsory social insurance, etc.

How to determine the terms of the contract

The term of the employment contract is probably one of the most important points. of this document... If it were not for him, the contract would not be considered urgent. Therefore, we will give it Special attention... How to formulate a term condition? It all depends on the circumstances of the conclusion of the contract. Let's consider them.

The expiration date of the agreement has been determined. If a specific date has been set when the term of the employment contract expires, it must be recorded in the document. Recall that a fixed-term contract can be concluded for a period not exceeding five years.

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

Consider how a deadline record can be formulated, using an example.

Example 1

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

Solution

The clause of the contract, which spells out the term for its validity, will look like this:

“2. Contract time

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

The expiration date of the agreement has not been determined. In some cases, it is impossible to determine the end date of the employment contract. Here are some typical situations when a condition on its validity period is prescribed in the contract, and not a specific date. So, the conclusion of a fixed-term employment contract is possible:

in connection with the departure of the employee on maternity leave and parental leave;
illness of an employee;
performance of seasonal work.

In these cases, the expiration of the term of the employment contract is associated with a specific event, for example, with the return of an employee to work after a long illness. In this regard, Resolution No. 2 provides the following explanations. If a fixed-term employment contract is concluded for the performance of a certain work, and the exact date of its completion is not known, the contract terminates upon completion of this work by virtue of part 2 of article 79 of the Labor Code.

Example 2

Confectioner P.L. Pryanishnikov was admitted to LLC "Vanilla" for the time the pastry chef V.A. Kalacheva course of treatment in the hospital since August 1, 2010. With P.L. Pryanishnikova signed a fixed-term employment contract. How will the condition on the term of the contract be spelled out, if it is not known exactly when V.A. Will Kalacheva return to her workplace?

Solution

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

“2. Contract time

2.1. The contract comes into force from the date of its conclusion by the Employee and the Employer (or from the date of the actual admission of the Employee to work with the knowledge or on behalf of the Employer or his representative).

2.3. The contract was concluded for the period of temporary incapacity for work of the pastry chef V.A. Kalacheva, who retains her workplace.

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

2.5. If the main employee V.A. Disability with limited ability to work or dismissal. The employer extends this contract with the substitute Employee for an indefinite period. "

Probation

Can a probationary period be set when concluding a fixed-term employment contract? It all depends on how long and for what work the employee is hired.

Seasonal work. When concluding an employment contract for the duration of seasonal work, a probationary period of more than two weeks cannot be established (Article 70 of the Labor Code of the Russian Federation). In this case, the condition on seasonality must be included in the text of the contract in accordance with article 294 of the Labor Code.

Temporary work. When a fixed-term contract is drawn up for the duration of temporary work (up to two months), a probationary period is not established (Article 289 of the Labor Code of the Russian Federation).

Other work. When concluding an employment contract for a period of two to six months, the test cannot exceed two weeks (Article 70 of the Labor Code of the Russian Federation).

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

pregnant women and women with children under the age of one and a half years;
persons elected in a competition for filling the relevant position, held in the manner prescribed by labor legislation and other regulatory legal acts containing norms labor law;
under the age of 18;
graduated with state accreditation educational institutions primary, secondary and higher vocational education and for the first time applying to work in the received specialty within one year from the date of graduation from an educational institution;
elected to an elective position for a paid job;
those invited to work by way of transfer from another employer as agreed between employers;
to other persons in cases stipulated by the Labor Code, other federal laws, collective agreement.

The trial period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other isolated structural units organizations - six months, unless otherwise provided by federal law.

We draw up a fixed-term employment contract

Let's go directly to the design of the document. As we noted above, all prerequisites must be included.

Particular attention should be paid to the reasons why it is a fixed-term employment contract, and the timing of its termination. Let's take an example of the preparation of this document.

Example 3

Civil engineer E.V. Nezabudkin was hired by Project-Design LLC, created specifically to serve international youth sports games"Sportlantis" planned in Volgograd in August 2010. Preparation for them began in January 2010, construction works to be completed on July 15, 2010. The organization will operate until July 31, 2010. With E.V. Forget-me-nots need to conclude a fixed-term employment contract for the period of existence of this organization. How to compose it?

Solution

The fixed-term contract is listed below.

Employment record for employment

According to clause 4 of the Rules for maintaining and storing work books, the production of work book forms and the provision of employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225, information about the employee, the work performed by him, transfer to another permanent job, dismissal is entered in the work book, and the grounds for termination of the employment contract are indicated and entered information about rewarding for success in work.

Accordingly, if a fixed-term employment contract is concluded with an employee for any period, it is necessary to make an entry about this in the work book or start a new one, if there is none. The employer must make a record of employment in the work record book of the conscript, if he has worked for him for more than five days and this work is the main one for this employee. This is the requirement of clause 3 of the Rules for maintaining and storing work books, making work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of 04.16.2003 No. 225.

However, this does not mean that it is necessary to indicate in the work book that it is a fixed-term employment contract that has been concluded. Also, attention is not focused on the fact that an employee, for example, replaces an absent specialist. It is enough to make a standard entry, for example: "Hired for the position of a mechanic", indicating the serial number of the entry, date, as well as the details of the order of employment. This, in particular, is stated in the letter Federal Service on labor and employment from 06.04.2010 No. 937-6-1.

Leave of a conscript worker

An employee who has entered into a fixed-term employment contract in general order annual paid leave is granted with the preservation of the place of work and earnings (Article 114 of the Labor Code of the Russian Federation). Its duration is at least 28 calendar days per working year (Article 115 of the Labor Code of the Russian Federation). If the employee has worked for less than a year, the duration of the vacation is calculated in proportion to the time worked.

The right to use leave for the first year of work arises from the employee after six months of his continuous work from this employer (part 2 of article 122 of the Labor Code of the Russian Federation).

Leave payment is made based on the average wage, which is calculated according to the rules established in article 139 of the Labor Code, as well as in the Regulations on the specifics of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of 12.24.2007 No. 922.

In accordance with part 1 of Article 128 of the Labor Code of the Russian Federation, for family reasons and other valid reasons, an employee, on the basis of his written application, may be granted unpaid leave for the duration established by the labor legislation of the Russian Federation and the rules of internal work schedule employer.

Prolongation of a fixed-term employment contract

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

Mandatory prolongation of the contract

A fixed-term employment contract can be renewed on a mandatory basis only in one case - when it coincides with the employee's pregnancy period. In this situation, the employer is obliged to extend the term of the employment contract until the end of the pregnancy. This is stated in part 2 of article 261 of the Labor Code.

The employee must submit a written application and bring a medical certificate confirming the condition of pregnancy2.

Prolongation by agreement of the parties

Part 4 of Article 58 of the Labor Code states the following. 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, the condition of the urgent nature of the employment contract becomes invalid. After that, the employment contract is considered concluded for an indefinite period. Do I need to document the fact of changing the status of a fixed-term contract to an unlimited one?

In fact, the change in the status of the contract occurs automatically. After that, the labor law provisions apply to the conscript employee, which are provided for employees who have entered into open-ended employment contracts. For example, such an employee can no longer be dismissed on the basis of the expiration of the employment contract (clause 2 of article 77 of the Labor Code of the Russian Federation).

However, in this case, it is desirable to draw up a number of documents. Such recommendations are given in the letter of Rostrud dated 20.11.2006 No. 1904-6-1.

First of all, it is additional agreement to the employment contract. In it, you can give the following wording: "State paragraph No. ... in the following edition:" This employment contract is concluded for an indefinite period. "

Fixed-term contract with a pensioner

Often employers enter into fixed-term contracts with retirees. At the same time, many believe that this is the only form of relationship with this category of workers. However, it is not. The Decision of the Constitutional Court of 15.05.2007 No. 378-O-P states that when concluding an employment contract with a pensioner, the term can be set only by agreement of the parties. A similar conclusion is contained in paragraph 13 of Resolution No. 2.

Consequently, it is possible to conclude employment contracts with retired workers for an indefinite period. There is also no need to fire an employee who has received the status of a pensioner and conclude a fixed-term contract with him. He can continue to work on the basis of a previously concluded open-ended contract.

Termination of a fixed-term employment contract

An employment contract with a conscript employee is terminated due to the expiration of its validity period. This is stated in part 1 of article 79 of the Labor Code of the Russian Federation. The procedure for terminating a fixed-term employment contract is regulated by article 79 of the Labor Code of the Russian Federation. The employee is warned about the termination of the employment contract upon expiration of the writing at least three calendar days prior to dismissal. Only in the case when a fixed-term contract is concluded with an employee for the period of replacement of an absent specialist, the employer may not warn him in advance.

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

Dismissal order

After the employee is notified of the end of the employment contract and there are no obstacles to its termination, the manager issues an order to dismiss the employee. For this, there are two unified forms No. T-8 and T-8a (in case of dismissal of several employees), which are approved by the decree of the State Statistics Committee of Russia dated 05.01.2004 No. 1 "On approval of unified forms of primary accounting documentation for labor accounting and remuneration."

A fixed-term employment contract can also be terminated on the general grounds established in Article 77 of the Labor Code of the Russian Federation, namely:

by agreement of the parties (Article 78 of the Labor Code of the Russian Federation);
the employee's initiative (Article 80 of the Labor Code of the Russian Federation);
the employer's initiative (Article 81 of the Labor Code of the Russian Federation).

Employment record

On the day of termination of the employment contract, the employee must be handed a work book (part 4 of article 84.1 of the Labor Code of the Russian Federation).

According to clause 5.2 of the Instructions for filling out work books, approved by the decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, upon termination of an employment contract on the grounds provided for in Article 77 of the Labor Code of the Russian Federation, a record of dismissal is made in the work book with reference to the relevant paragraph of this article.

On a note
When to fire an employee if a fixed-term employment contract is terminated on a holiday or weekend? According to article 14 of the Labor Code of the Russian Federation, the day of expiry of the term of the employment contract, if the last day is a non-working day, the next working day following it is considered.

In the event of the dismissal of a conscript employee, when making an entry on the termination of a fixed-term employment contract, it is necessary to refer to paragraph 2 of part 1 of article 77 of the Labor Code of the Russian Federation. The wording will look like this: "Fired due to the expiration of the employment contract, clause 2 of part 1 of article 77 of the Labor Code of the Russian Federation."

After receiving the work book, the employee must sign in the book of accounting for work books and inserts to them in the form approved in Appendix 3 to the decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, and on the last page of the personal card, the unified form of which No. T-2 was adopted by decree Goskomstat of Russia dated 05.01.2004 No. 1.

If the temporary disability coincided with the expiration of the fixed-term contract

If the employee is on sick leave at the moment when his contract expires, the fixed-term employment contract is not renewed. An employee is dismissed for general reasons. However, the sick leave must be paid. The employer is obliged to this by article 183 of the Labor Code of the Russian Federation. It says that in the event of temporary disability, the employer pays the employee a temporary disability benefit in accordance with federal laws.

In turn, paragraph 2 of Article 5 of the Federal Law of December 29, 2006 No. 255-FZ "On compulsory social insurance in case of temporary disability and in connection with motherhood" states that temporary disability benefits are paid to insured persons not only during the period of work on labor the agreement, but also in cases where the disease or injury occurred within 30 calendar days from the date of termination of its validity.

Taxation and accounting of dismissal payments

Labor legislation instructs the employer on the last working day of the employee to pay him wages for hours worked (Article 140 of the Labor Code of the Russian Federation) and compensation for unused vacation (part 1 of Article 127 of the Labor Code of the Russian Federation). It is permissible to establish other payments in a collective or labor agreement.

Thus, part 4 of Article 178 of the Labor Code states that labor or collective agreements may establish not only the payment of severance payments not provided for in parts 1-3 of Article 178 of the Labor Code of the Russian Federation, but also increased severance payments.

The employee is paid upon dismissal wage for hours worked, compensation for unused vacation and in some cases - severance pay.

The first two payments are taxed:

Personal income tax (clause 1 of article 210 of the Tax Code of the Russian Federation);
insurance premiums (clause 1 of article 7 of the Federal Law of July 24, 2009 No. 212-FZ "On insurance premiums in Pension Fund Of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Health Insurance Fund and territorial compulsory health insurance funds ").

The amounts of wages and compensation are included in the taxpayer's expenses for labor remuneration (part 1 of article 255 of the Tax Code of the Russian Federation).

Wages are subject to injury contributions (clause 3 of the Rules for calculating, recording and spending funds for compulsory social insurance against industrial accidents and occupational diseases, approved by the Government of the Russian Federation of 03/02/2000 No. 184).

Compensation is not subject to contributions for injuries (clause 1 of the List of payments that are not accrued insurance premiums in the FSS of Russia, approved by the decree of the Government of the Russian Federation of 07.07.99 No. 765).

Severance pay within the limits is not subject to personal income tax, insurance premiums (subparagraph "d", clause 2, part 1 of article 9 of the Federal Law of July 24, 2009 No. 212-FZ), is not subject to injury contributions (clause 1 of the List of payments , on which insurance contributions are not charged to the FSS of Russia), reduces the taxable base for income tax as part of labor costs (clause 9 of article 255 of the Tax Code of the Russian Federation).

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

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

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

DEBIT 70 CREDIT 68 subaccount "Settlements for personal income tax" - withholding personal income tax from payments that are subject to this tax;

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

I. Gavrikova, senior scientific editor of the journal "Salary"

An increasing number of modern companies use fixed-term employment contracts in their practice. A fixed-term employment contract is an alternative form of agreement between a company and an employee. This agreement has a specific expiration date.

A fixed-term employment contract is concluded for a period from 1 day to 5 years.

It is this form of an employment contract that is more convenient for the employer and some categories of employees from a legal point of view (a simple dismissal procedure for schoolchildren, students, pensioners). Some provisions in the Labor Code of the Russian Federation prohibit the conclusion of an unfounded fixed-term employment contract.

There is no permanent employee, a place is needed for him (long sick leave, vacation, maternity leave).
An employee gets a job for a period of less than 2 months (student labor practice).
Required to perform work depending on the season (work related to harvesting).
Execution of work with a specific deadline from the customer (repair work).
Work in an elective position.
Faces creative professions(media staff, actors, circus performers, etc.)
An employee is sent to work abroad.
The employee is hired by an individual entrepreneur.
An employee gets a job at a small business.
Combining positions.
Employment of senior citizens (seniority pensioners do not apply to this item).
Employment of employees with disabilities (presence of medical contraindications).
Persons undergoing an alternative civil service(Constitution of the Russian Federation, Art.59)

The conclusion of a fixed-term employment contract is considered unlawful if it happened without taking into account the grounds specified in Art. 59 of the Labor Code of the Russian Federation, and can be appealed in court.

Collective agreement

A collective labor agreement is an agreement that is concluded between the employer and the collective for a period not exceeding three years. Terms and conditions of work are prescribed directly in the contract. It can come into force from a certain date or from the moment of its signing. After the expiration of the term, it can be extended an unlimited number of times, but the term of each contract will be limited to three years.

The change in the term does not apply:

The name of the company has changed.
The management of the enterprise was changed.
Enterprise transformation (LLC, CJSC, etc.)

The collective agreement remains in effect for another 3 months if the owner changes. Further, either it is terminated or a new one is concluded.

A fixed-term agreement is concluded on an individual basis, as opposed to a collective agreement.

Social guarantees for the employee

Will social guarantees be preserved when concluding a fixed-term employment contract? In this case, there are no exceptions, the employer must provide the same guarantees and conditions as a permanent employee.

Any employee has the right to receive leave. The term of the contract does not matter. For the calculation, we take the figures specified in the legislation. The employee is entitled to 2 days of vacation for each month worked.
An employee working on a fixed-term contract can receive leave upon dismissal (Article 127 of the Labor Code of the Russian Federation). Such leave consists of the fact that it is drawn up at the end of the contract term. The fixed-term contract is extended until the end of the vacation.
Study leave can be granted if there is a call-to-letter from educational institution with indication of the dates of the session (Art. 173-176 of the Labor Code of the Russian Federation).
Maternity leave. A woman is entitled to maternity leave if she was not pregnant or did not know about her situation when concluding a fixed-term contract. This condition is confirmed by a medical certificate (Article 255 of the Labor Code of the Russian Federation).

Probation

The employer also has the right to assign a probationary period to a new temporary employee to check his professional and business qualities. There are time limits.

The term of the contract is 2-6 months - a trial period of no more than 2 weeks.
An employee applies for leadership position... In this case, the trial period can be extended up to 6 months.
For civil servants, a probationary period can last 1 year (Article 27, Clause 1 of the Federal Law "On Civil Service").

Employees do not pass the probationary period under the following conditions:

The term of the concluded agreement is less than 2 months.
Employees who have passed the competition for filling a vacancy.
Newly employed young specialists (university graduates).
Employees invited by management from outside organizations.
Pregnant women and women with children under the age of 3 years.

Termination of an agreement

A fixed-term employment contract can be terminated by an employee on their own... To do this, you must inform the employer about your intention 14 days in advance and write a statement. If the contract is concluded for a period of less than two months, the employer can be notified 3 days in advance.

The employer can also terminate the contract, but this requires more serious reasons, they are provided for by law (Article 81 of the Labor Code of the Russian Federation).

An employee grossly violates labor discipline(lateness, absenteeism).
The organization is cutting down its staff.
The temporary employee cannot cope with his job responsibilities(inconsistency with the position held).

Working off upon dismissal.

In fact, there is no such thing as "working off" in the TC. There is a mandatory period for notifying the employer of the dismissal. This term is considered "working off".

Working off upon dismissal of an employee with a fixed-term employment contract has the following nuances:

If the employer needs it and the employee agrees, the fixed-term employment contract can be extended or, if necessary, made it indefinite. Sometimes the contract is extended, regardless of the wishes of the employer.

The term of the contract expired, and no one insisted on terminating it (the employee went on maternity leave and decided not to return to her previous place of work).
The employer is obliged to inform the employee about the end of the contract 3 days in advance. If this does not happen, the fixed-term contract is converted into an open-ended one.
If the contract needs to be extended, but the employer does not intend to enter into an open-ended employment relationship with the employee, he must conclude with the employee either a new fixed-term contract or conclude an additional agreement.
The employee provided a certificate of pregnancy and, in accordance with the Labor Code, cannot be dismissed until the end of the decree.

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