Employment contract is the central institution of labor law. An employment contract (contract) is the main institution of labor law. The concept and types of labor discipline
Introduction
Chapter I Labor contract: concept, features, sides
1.1 The concept and legal meaning of an employment contract
1.2 The difference between an employment contract and related civil law contracts
1.3 The employee and the employer as the main participants in the employment contract
Chapter II. The procedure for concluding an employment contract
2.1 Conditions for concluding an employment contract
2.2 Documents required for concluding an employment contract
2.3 Form of conclusion of an employment contract
2.4 Entry into force of the employment contract
Chapter III. Contents of the employment contract
3.2 Duration of the employment contract
3.3 Fixed term contract
Conclusion
List of used literature
Appendix
Introduction
The topic “Employment contract” is quite relevant and especially significant for every able-bodied citizen. The employment contract is one of the main institutions labor law; in the labor code, it occupies a central place and includes legal regulations, defining the parties and the procedure for concluding an employment contract, its content, the rules governing the procedure for registering employment, transfer, changing the essential conditions of labor law, suspension from work, as well as termination labor relations.
An employment contract is a legal fact that gives rise to an employment relationship, and at the same time, the basis for its operation in time. This provides an opportunity for the employee and the employer to take into account (coordinate) mutual interests not only at the time of the emergence of an employment relationship, but also during its existence. Changing the terms of an employment contract or terminating it, respectively, change or terminate the employment relationship. By concluding an employment contract, a citizen realizes the right granted to him by the Constitution of the Russian Federation to freely choose a job in accordance with his abilities, profession and qualifications. For the employer, the right to conclude employment contracts means the ability to select such employees who, in terms of their professional and business qualities, correspond to the work assigned, are the most qualified and experienced employees.
Having concluded an employment contract with an employer, a citizen becomes his employee and from that moment on he has the right to apply for social guarantees and protection under labor law. For its part, the employer acquires the right to require the employee to comply with the internal labor regulations, conscientious attitude to labor duties, fulfill the instructions and orders of the head on labor, the collective agreement (agreement) and the employment contract. If necessary, the employer has the right to apply disciplinary measures to the employee.
We can say that the employment contract is designed to regulate relations between the employee and the employer, to minimize controversial situations that may arise during the term of the employment contract. Particularly protects the employee's employment contract because, according to established practice, it is he who is the most weak side in this type of relationship.
Based on the fact that the basis of the employment contract are such principles as freedom of choice of profession, the right to work in accordance with the rules of safety and hygiene, the right to remuneration for work without any discrimination based on gender, nationality, social position, as well as the right to rest and protection from unemployment, an employment contract can be considered an element of the rule of law.
The value of the employment contract in the mechanism of legal regulation of labor is as follows: 1. An employment contract is a form of attraction to labor activity. It is through this agreement that a person's right to work is realized, which everyone freely chooses or freely agrees to (Article 2 of the Labor Code of the Russian Federation).2. An employment contract is a legal fact that initiates an employment relationship (Article 15 of the Labor Code of the Russian Federation).3. An employment contract is a litmus test that determines the presence or absence of an employment relationship in each specific case, i.e. the possibility of applying labor law (part 1 of article 11, part 1 of article 16 of the Labor Code of the Russian Federation). 4. An employment contract can be considered as one of the ways to regulate labor relations (Article 9 of the Labor Code of the Russian Federation).5. An employment contract is one of the main institutions of the industry and science of labor law.6. An employment contract is an important tool for personnel management.
An employment contract as a central institution of labor law is the subject of research by many scientists. Practically all specialists of labor law, in particular, such prominent scientists as: T.Yu. Korshunova, V.I. Mironov, Yu.P. Orlovsky, S.A. Panin, O.V. Smirnov, V.N. Skobelkin, V.N. Tolkunova, E.B. Khokhlov and many others.
object course research are public relations associated with the employment contract as an independent institution of labor law. Subject of study- Relevant labor laws. aim research is complex analysis an employment contract, to achieve which the following tasks are set: 1) to clarify the concept of an employment contract and its differences from related civil law contracts; 2) consider the parties to the employment contract and their legal personality; 3) comprehensively analyze the content of the employment contract; 4) investigate the binding nature of the terms of the employment contract for its parties.
As general scientific research methods the methods of formal-logical and system-structural analysis were applied. By its structure course work consists of introduction, three chapters, conclusion, bibliography.
Thus, having substantiated the significance and relevance of this topic, having determined and drawn up a plan for solving the tasks set, we can begin to disclose the problems that are the object of research.
1. Employment contract. Concept, features, sides
1.1 The concept and legal meaning of an employment contract
An employment contract is the main institution of labor law, reflecting characteristics labor relations. The employment contract is legal form individual regulation of labor in organizations, the basis for the development of labor relations.
In the science of labor law, an employment contract is considered in the following two aspects: as an agreement between an employee and an employer on labor at a given enterprise and as the most important institution of labor law that determines the norms of an employment contract: its conclusion, amendment and termination. An employment contract as an agreement on work is a legal fact that gives rise to an employment relationship of an employee, and a necessary prerequisite for the application of labor legislation to it and the emergence of other legal relations directly related to labor legislation.
An employment contract is a contract of a personal nature, since the employee personally carries out work in the general cooperation of labor and cannot do this through another person. Therefore, this agreement protects the identity of the employee, his health, honor and dignity. An employment contract, reflecting an individual way of regulating labor, may provide for additional labor benefits for an employee.
the federal law June 30, 2006 N 90-FZ did not make fundamental changes to the concept of an employment contract, formulated in Art. 56 of the Labor Code of the Russian Federation. Part 1 of the commented article is brought into line with the new edition of Art. 5 of the Labor Code of the Russian Federation, which clarifies the concepts of "labor legislation" and "other regulatory legal acts" that regulate labor relations and other relations directly related to them. It also contains some editorial changes that do not change the essence of the very concept of an employment contract.
Labor legislation (including labor protection legislation) in accordance with the new edition of Art. 5 Labor Code consists of the Labor Code of the Russian Federation, other federal laws and laws of subjects Russian Federation containing labor law norms. Other normative legal acts containing labor law norms include: decrees of the President of the Russian Federation; Decrees of the Government of the Russian Federation; normative legal acts federal bodies executive power; normative legal acts of the executive authorities of the constituent entities of the Russian Federation; regulatory legal acts of bodies local government.
1.2 The difference between an employment contract and related civil law contracts
Formulated in Art. 56 of the Labor Code of the Russian Federation, the concept of an employment contract makes it possible to single out its main elements (features) that make it possible to distinguish an employment contract from civil law contracts related to the use of labor - a work contract (Article 702 of the Civil Code); contracts for the performance of research, development and technical work(Article 769 of the Civil Code); contracts for the provision of services for a fee (Article 779 of the Civil Code); contract of agency (Article 971 of the Civil Code).
These elements include:
the specifics of the duties assumed by the employee under an employment contract, expressed in the performance of work in a certain position in accordance with the staff list, profession, specialty, indicating qualifications, i.e. stipulated by the agreement of the parties labor function;
Employment contract - an institution of modern Russian labor law and its improvement
A. Ya. Petrov, Doctor of Law, Professor, State University « graduate School economy"
An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and by this agreement, to pay the employee wages in a timely manner and in full, and the employee undertakes to personally perform the labor function determined by this agreement, to comply with the internal labor regulations applicable to this employer.
This legal definition of the concept of an employment contract (as researchers sometimes note the concept of an employment contract in the proper sense) must be distinguished from the concept of an employment contract as an institution of labor law in Russia. This category should be understood as a set or system of legal norms that define the concept, content, terms of an employment contract and regulate relations for its conclusion, amendment and termination.
It is positive that the Labor Code of the Russian Federation logically and consistently reflects the basis of this institution in section 111.
Employment contract, namely:
– general provisions (Chapter 10);
– conclusion of an employment contract (Chapter 11);
– amendment of the employment contract (Chapter 12);
– termination of the employment contract (Chapter 13).
At the same time, the inclusion in this section of Chapter 14. “Protection of personal data of an employee”, which in this context is clearly inappropriate, is objectionable, because the institution of an employment contract (as recognized in the science of labor law) does not contain such an element. It seems reasonable to assign chapter 14 of the Code to section XIII “Protection of labor rights and freedoms…”. It is easy to see the similarity and homogeneity of these categories of labor law. It seems that the norms of Chapter 14 of the Labor Code of the Russian Federation are actually aimed at protecting the labor rights and freedoms of workers, including labor honor, dignity and business reputation and not to protect the personal data of the employee.
It is also appropriate to emphasize that Article 2 of the Code refers ensuring the right of employees to protect their dignity during the period of employment to the basic principles of legal regulation of labor relations and other directly related relations.
In the theory of labor law, it is reasonable to single out such sub-institutions in the institution of an employment contract as:
– conclusion of an employment contract;
– change of the employment contract;
- termination of the employment contract.
However, along with this, there are often other interpretations of the sub-institutions of the employment contract, for example, traditionally: hiring, transfers to another job and dismissals. I would like to note that such interpretations are not entirely correct, because they are not based on the law. So, in chapter 11 of the Code. “Conclusion of an employment contract” out of 9 articles, only 3 deal with the issue of employment (articles 68, 70 and 71).
The discrepancy between "changing the employment contract" and "transferring to another job" is even more clearly visible. The first category is much broader and includes four groups of rules governing:
- transfer to another job;
– movement;
- changing the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions;
- suspension from work.
Regarding the last sub-institution of the employment contract, it is necessary to take into account the well-known thesis that “dismissal” refers to the employee, and not to the employment contract. In addition, in Chapter 13 of the Labor Code of the Russian Federation “Termination of an employment contract”, there is not a single article that would specifically regulate relations for the dismissal of an employee, with the exception of a mention of this in Article 80 of the Code.
And now let's look specifically at chapters 10-13 of the Labor Code of the Russian Federation, which determine the structure, system and content of the institution of an employment contract.
Chapter 10 " General provisions» provides:
- the concept of an employment contract, its parties;
- the content of the employment contract;
- terms of the employment contract, fixed-term employment contract;
- prohibition to demand the performance of work not stipulated by the employment contract;
- part-time work;
- combining professions (positions), expanding service areas, increasing the volume of work, performing the duties of a temporarily absent employee without exemption from work specified in the employment contract;
– the entry into force of the employment contract;
– issuance of copies of documents related to work (Articles 56-62).
It is easy to see that individual articles and relevant norms can hardly be attributed to the "General Provisions". So, according to Article 58 of the Labor Code of the Russian Federation, employment contracts can be concluded:
1) for an indefinite period;
2) for a fixed period of not more than five years (fixed-term employment contract), unless another period is established by this Code and other federal laws.
A fixed-term employment contract is concluded when 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 performance, namely in the cases provided for by paragraph one of Article 59 of the Code. In the cases provided for by the second part of Article 59 of the Code, a fixed-term employment contract may be concluded by agreement of the parties to the employment contract without taking into account the nature of the work to be done and the conditions for its performance.
If the employment contract does not specify the term of its validity, then the employment contract is considered concluded for an indefinite period.
An employment contract concluded for a fixed period in the absence of sufficient grounds established by the court is considered to be concluded for an indefinite period.
It is prohibited to conclude fixed-term employment contracts in order to avoid granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.
Article 59 of the Labor Code of the Russian Federation provides for cases when a fixed-term employment contract is concluded (part 1) and, by agreement of the parties, a fixed-term employment contract may be concluded (part 2).
Thus, the content of articles 58–59 of the Labor Code of the Russian Federation indicates that these articles should be included in Chapter 11 of the Code “Conclusion of an employment contract” and, of course, excluded from Chapter 10, since they are not of a general nature.
In accordance with Article 60 of the Labor Code of the Russian Federation, it is prohibited to require an employee to perform work not stipulated by an employment contract, except as provided for by this Code and other federal laws. This important position in the science of labor law is rightly referred to when considering the problems of transfers to another job. The question is natural: why is this norm enshrined in Chapter 10 "General Provisions"? I believe that it would be reasonable to include it in Chapter 12 “Changing the employment contract” after Article 72 of the Labor Code of the Russian Federation, which provides for the fundamental rules for changing the terms of the employment contract determined by the parties.
Federal Law No. 90-FZ of June 30, 2006 supplemented Chapter 10 of the Labor Code of the Russian Federation with Article 60-1 “Part-time work”. According to this article, the employee has the right to conclude employment contracts on the performance, in his spare time from his main job, of another regular paid job with the same employer ( internal combination) and (or) from another employer (external part-time job).
Features of labor regulation of persons working part-time are determined by Chapter 44 of this Code.
In terms of content, this article can be attributed to Chapter 11 “Conclusion of an employment contract”, and not to the general provisions of an employment contract. In fact, it concerns a separate category of part-time workers, and its proper place is in Chapter 44 of the Labor Code of the Russian Federation.
Federal Law No. 90-FZ of 30 June 2006 also supplemented Chapter 10 of the Code with Article 60-2. It provides that with the written consent of the employee, he may be entrusted with the performance during the established duration of the working day (shift), along with the work determined by the employment contract, additional work in another or the same profession (position) for additional payment (Article 151 of this Code). ).
Additional work assigned to an employee in another profession (position) may be carried out by combining professions (positions). Additional work entrusted to an employee in the same profession (position) can be carried out by expanding service areas, increasing the volume of work. In order to fulfill the duties of a temporarily absent employee without being released from work specified in the employment contract, the employee may be entrusted with additional work both in another profession and in the same profession (position).
The period during which the employee will perform additional work, its content and volume are established by the employer with the written consent of the employee.
The employee has the right to prematurely refuse to perform additional work, and the employer has the right to prematurely cancel the order to perform it, having warned the other party about this in writing no later than three business days.
This article of the Code is also not of a general nature and, in terms of its content, should be classified as a sub-institution of “changing an employment contract”, which requires fixing it in Chapter 12 of the Labor Code of the Russian Federation.
In accordance with Article 61 of the Labor Code of the Russian Federation, an employment contract enters into force from the day it is signed by the employee and the employer, unless otherwise provided by federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or by on behalf of the employer or his representative.
The employee is obliged to start performing labor duties from the day specified in the employment contract.
If the employment contract does not specify the day of commencement of work, the employee must start work on the next working day after the entry into force of the contract.
If the employee did not start work on the day of commencement of work, established in accordance with the second or third part of this article, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded. Cancellation of an employment contract does not deprive the employee of the right to receive mandatory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation. And this article of the Code cannot be attributed to the general provisions of the employment contract, because in its content it is more related to the sub-institution “conclusion of an employment contract”.
Thus, in Chapter 10 "General Provisions" of the Labor Code of the Russian Federation, articles 56-57, as well as 62, should obviously remain. The latter, in particular, provides that, upon a written application from the employee, the employer is obliged no later than three working days from the date of submission of this applications to issue to the employee copies of documents related to work (copies of the order for employment, orders for transfers to another job, orders for dismissal from work; extracts from the work book; certificates of wages, accrued and actually paid insurance premiums for mandatory pension insurance, about the period of work with this employer, etc.). Copies of documents related to work must be duly certified and provided to the employee free of charge.
This article contains rules that apply to all sub-institutions of the employment contract, that is, it has a general meaning and is reasonably included in chapter 10.
Closely related to it is Article 66 of the Labor Code of the Russian Federation.
According to this article, the work book of the established form is the main document on the work activity and work experience of the employee.
The form, procedure for maintaining and storing work books, as well as the procedure for preparing blank work books and providing employers with them, is established by the Government of the Russian Federation.
Employer (with the exception of employers - individuals who are not individual entrepreneurs) maintains work books for each employee who has worked more than five days, in the case when the work for this employer is the main one for the employee.
AT work book information is entered about the employee, the work performed by him, transfers to another permanent job and the dismissal of the employee, as well as the grounds for terminating the employment contract and information about awards for success in work. Information about penalties in the work book is not entered, except in cases where disciplinary action is dismissal.
At the request of the employee, information about part-time work is entered in the work book at the place of main work on the basis of a document confirming part-time work.
The question arises: why is Article 66 enshrined in Chapter 11 of the Code “Conclusion of an employment contract”? After all, it contains norms relating to the entire institution of the employment contract. Apparently, its proper place is in Chapter 10 of the Labor Code of the Russian Federation, next to the article regulating the issuance of copies of documents related to work. Articles 70 and 71 of the Labor Code of the Russian Federation need to be improved.
Thus, Article 70 of the Code should be called “Probation condition when concluding an employment contract”, thereby bringing it into line with the title of Chapter 11 and Article 57 of the Labor Code of the Russian Federation. And the content of the article should be stated as follows: “When concluding an employment contract, by agreement of the parties, it may provide for a condition on testing the employee in order to verify his compliance with the assigned work.”
The absence of a test clause in the employment contract means that the employee is hired without a test. In the event that an employee is actually allowed to work without drawing up an employment contract (part two of Article 67 of this Code), a test condition may be included in the employment contract.
During the probation period, the employee is subject to the norms of labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations.
The probation period may not exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law.
When concluding an employment contract for a period of two to six months, the probation may not exceed two weeks.
The period of temporary disability of the employee and other periods when he was actually absent from work are not included in the probationary period.
It is advisable to single out from Article 70 of the Labor Code of the Russian Federation and fix it in Article 70-1 “Cases when a test is not established”, setting it out as follows:
“The test condition at the conclusion of an employment contract is not established for:
- pregnant women and women with children under the age of one and a half years;
- persons under the age of eighteen;
- persons elected on the basis of a competition for the relevant position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;
- persons elected to an elective position for paid work;
- persons who graduated from state-accredited educational institutions of primary, secondary and higher vocational education and for the first time come to work in their specialty within one year from the date of graduation from the educational institution;
- persons invited to work in the order of transfer from another employer as agreed between employers;
– persons concluding an employment contract for a period of up to two months;
- other persons in cases provided for by this Code, other federal laws, a collective agreement.
Article 71 of the Labor Code "The result of the test when hiring" is logically called the "Result of the test after hiring", setting it out as follows:
“If the probation period has expired, and the employee continues to work, then he is considered to have passed the probation.”
In Chapter 13 of the Code “Termination of an Employment Contract”, it would be reasonable to fix a separate article “Termination of an Employment Contract during the Probationary Period” (because Article 71 of the Code in the current version is hardly correctly enshrined in Chapter 11) and state it as follows:
“If the result of the test is unsatisfactory, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him of this in writing no later than three days, indicating the reasons that served as the basis for recognizing this employee as not having passed the test.
If the result of the test is unsatisfactory, the termination of the employment contract is carried out without taking into account the opinion of the relevant trade union body and without paying severance pay.
If during the trial period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract on his own initiative, notifying the employer in writing three days in advance.
An analysis of the norms of Chapter 12 "Changing the employment contract" also indicates the need for their optimization.
According to Article 72-2 of the Labor Code of the Russian Federation, in case of transfers made in the cases provided for in parts two and three of this Article, the employee's remuneration is made according to the work performed, but not lower than the average salary according to previous work. It seems that this provision applies more to the institution wages, and, as a consequence, it should be enshrined in chapter 21 "Wages".
Article 73 of the Labor Code of the Russian Federation “Transfer of an employee to another job in accordance with a medical report” contains rules on suspension from work, termination of an employment contract and wages. In particular, parts 2-4 of Article 73 of the Code provide that if an employee who, in accordance with a medical certificate, needs a temporary transfer to another job for up to four months, refuses to transfer or the employer does not have the corresponding job, then the employer is obliged for the entire specified in the medical report, the term to remove the employee from work with the preservation of the place of work (position). During the period of suspension from work, wages are not accrued to the employee, with the exception of cases provided for by this Code, other federal laws, a collective agreement, agreements, and an employment contract.
If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses to transfer or if the employer does not have the appropriate job, the employment contract is terminated in accordance with clause 8 of part one of Article 77 of this Code .
An employment contract with the heads of organizations (branches, representative offices or other separate structural divisions), their deputies and chief accountants who, in accordance with a medical report, need temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the appropriate job, is terminated in accordance with with paragraph 8 of the first part of Article 77 of this Code. The employer has the right, with the written consent of these employees, not to terminate the employment contract with them, but to suspend them from work for a period determined by agreement of the parties. During the period of suspension from work, wages are not accrued to the specified employees, except for the cases provided for by this Code, other federal laws, a collective agreement, agreements, and an employment contract. It is impossible not to notice that the title of Article 73 of the Labor Code of the Russian Federation and its content do not correspond to each other.
I would like to hope for a qualitative improvement in this article, and above all, the exclusion of the norm on wages from it. At the same time, it should be taken into account that the provision on the termination of an employment contract is largely repeated in paragraph 8 of the first part of Article 77 of the Code. It would be advisable to enshrine the rules on suspension from work in Article 76 “Suspension from work”.
Of particular note is the groundlessness of fixing Article 75 in Chapter 12 of the Labor Code of the Russian Federation, because its content indicates not a change, but the termination of an employment contract. So, according to this article, when changing the owner of the property of an organization new owner no later than three months from the date of the emergence of his ownership right, he has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant.
The change of the owner of the property of the organization is not a basis for terminating employment contracts with other employees of the organization.
If the employee refuses to continue working due to a change in the ownership of the organization's property, the employment contract is terminated in accordance with paragraph 6 of Article 77 of the Labor Code of the Russian Federation.
When changing the owner of the property of an organization, a reduction in the number or staff of employees is allowed only after state registration of the transfer of ownership.
A change in the jurisdiction (subordination) of an organization or its reorganization (merger, accession, separation, separation, transformation) cannot be a basis for terminating employment contracts with employees of an organization. If the employee refuses to continue working in the cases provided for by part five of this article, the employment contract is terminated in accordance with paragraph 6 of article 77 of the Labor Code of the Russian Federation.
From Article 76 of the Labor Code of the Russian Federation, it is necessary to exclude the provision that during the period of suspension from work (non-admission to work), wages are not accrued to the employee, with the exception of cases provided for by this Code or other federal laws. In cases of suspension from work of an employee who has not undergone training and testing of knowledge and skills in the field of labor protection or a mandatory preliminary or periodic medical examination (examination) through no fault of his own, he is paid for the entire time of suspension from work as for downtime. This norm should be enshrined in Chapter 21 of the Code "Wages".
Compared with the considered chapters 10–12 of the Labor Code of the Russian Federation, chapter 13 “Termination of an employment contract” is preferable in terms of structure and content.
At the same time, Chapter 13 of the Code also needs some adjustment. Thus, Article 77 of the Labor Code of the Russian Federation provides for the following general grounds for terminating an employment contract:
6) refusal of the employee to continue work in connection with a change in the owner of the property of the organization, with a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of this Code);
7) refusal of the employee to continue work in connection with a change in the terms of the employment contract determined by the parties (part four of Article 74 of this Code);
8) the employee's refusal to transfer to another job, which is necessary for him in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, or the absence of an appropriate job for the employer (parts three and four of Article 73 of this Code);
9) refusal of the employee to transfer to work in another locality together with the employer (part one of Article 72-1 of this Code)”.
The question arises: why does paragraph 6 of Article 77 of the Code refer to Article 75, and in paragraph 7 - to Article 74, etc.? Elementary logic determines the opposite, that is, paragraph 9, obviously, should be paragraph 6, paragraph 8 - paragraph 7 of Article 77 of the Labor Code of the Russian Federation, etc.
In addition, it would be reasonable to state paragraph 5 of Article 77 of the Code as follows: “5) transfer of an employee, upon his written application or with his written consent, to work for another employer or election to a position”, thereby the specified paragraph will be brought into line with Articles 16–17, 64, 72-1 of the Labor Code of the Russian Federation.
Further, from the first part of Article 81 of the Labor Code of the Russian Federation, it is necessary to exclude clause 13 on termination of the employment contract at the initiative of the employer in cases provided for by the employment contract with the head of the organization, members of the collegiate executive body organizations. According to paragraph 4 of Article 77 of the Code, termination of an employment contract at the initiative of the employer (Articles 71 and 81 of this Code) refers to the general grounds for termination of an employment contract.
Chapter 43 of the Labor Code of the Russian Federation provides for the specifics of labor regulation of the head of the organization and members of the collegial executive body of the organization, and in particular additional grounds for terminating an employment contract with the head of the organization, including on the grounds provided for by the employment contract, paragraph 3 of Article 278 of the Code.
It is also advisable to exclude from the second part of Article 81 of the Labor Code of the Russian Federation the provision that the certification procedure (clause 3 of part one of this article) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body workers. This provision cannot be directly related to the termination of the employment contract at the initiative of the employer. Moreover, the certification of employees is also important for resolving the issue of changing the employment contract, including transfer to another (both highly paid and lower paid) job (position).
In this regard, and taking into account the exceptional importance of attestation of employees, I believe it is timely to fix the relevant norms in Chapter 10 of the Labor Code of the Russian Federation.
Article 82 of the Code provides for the mandatory participation of an elected body of primary trade union organization in consideration of issues related to the termination of the employment contract at the initiative of the employer.
However, this article, in its content, is more related to the institution of guarantees and compensations. The Labor Code of the Russian Federation rightly fixed Chapter 27 "Guarantees and compensations to employees associated with the termination of an employment contract" in section VII "Guarantees and compensations".
In Chapter 27 of the Code, it is also necessary to fix the following provision of Article 84 of the Labor Code of the Russian Federation: “If the violation of the rules for concluding an employment contract established by this Code or other federal law was committed through no fault of the employee, then the employee is paid severance pay in the amount of the average monthly salary. If the violation of these rules is due to the fault of the employee, then the employer is not obliged to offer him another job, and the employee is not paid severance pay.
The institution of an employment contract is fundamental and central in Russian labor law, and therefore should also be a classic example of legal regulation.
Chapter 1. The concept and legal nature of an employment contract under the legislation of the Russian Federation
1.1 Definition and parties to an employment contract
Chapter 2. General procedure for concluding an employment contract
2.1Conclusion of an employment contract
2.2Certain types of employment contracts
2.3Transfer to another job
Chapter 3. Termination of an employment contract
3.1 Grounds for termination
3.2 Procedure for terminating an employment contract
CONCLUSION
LIST OF USED LITERATURE
APPS
INTRODUCTION
One of the main goals of the legislator regarding the reform of labor relations and relations derived from them is to create a modern civilized labor market in the country that would provide the employer with a workforce of appropriate qualifications, and workers - high paying job and proper working conditions.
In the Russian Federation, labor is free. Everyone has the right to freely dispose of his abilities to work, to choose the type of activity and profession. Everyone has the right to work in conditions that meet the requirements of safety and hygiene, to remuneration for work without any discrimination and not lower than the minimum wage established by federal law, as well as the right to protection from unemployment (Article 37 of the Constitution of the Russian Federation) .
An employment contract is the main form of exercising the right to freely dispose of one's ability to work.
An employment contract acts as the main legal basis for the emergence of labor relations, labor rights and obligations of the parties. Each party to the employment contract is obliged to comply with the accepted conditions.
Federal Law No. 90-FZ of June 30, 2006 did not introduce fundamental changes to the concept of an employment contract, formulated in Art. 56. Part 1 of this article has only been brought into line with the new wording of Art. 5 of the Labor Code, which clarifies the concepts of "labor legislation" and "other regulatory legal acts" that regulate labor relations and other directly related relations. It also contains some editorial changes that do not change the essence of the very concept of an employment contract.
Formulated in Art. 56 the concept of an employment contract makes it possible to single out its main elements (features) that make it possible to distinguish an employment contract from civil law contracts related to the use of labor: work contracts (Article 702 of the Civil Code); contracts for the performance of research work, experimental design and technical work (Article 769 of the Civil Code); contracts for the provision of services for a fee (Article 779 of the Civil Code); contract of agency (Article 971 of the Civil Code).
An employment contract is a key, basic institution of labor law as a branch of Russian law. This is the quintessence of legal regulation of the relationship between employees and employers. Perhaps that is why it is precisely around the employment contract as one of the main ways of legal mediation of the right of citizens to work that many ambiguities have accumulated today.
All of the above substantiates the relevance of questions about the employment contract.
The purpose of this work is to consider the issue of an employment contract as an institution of labor law. Based on the purpose of the study, its tasks are to consider the following aspects of the topic:
The concept and parties of the employment contract;
Conclusion of an employment contract;
Certain types of employment contracts;
Transfer to another job;
Grounds for termination of the employment contract;
Termination of an employment contract.
This work consists of an introduction, three chapters, a conclusion, a list of references and an appendix.
The normative basis of the study was the labor and other legislation of the Russian Federation, textbooks and study guides on the issue under consideration, monographs and publications in periodicals.
As for the employer, he does not have the right to require the employee to perform work not stipulated by the employment contract, with the exception of cases provided for by the Labor Code of the Russian Federation (Articles 72-74) and other federal laws.
The employee also assumes the obligation to comply with the internal labor regulations in force in the organization - local normative act an organization that regulates, in accordance with the Labor Code of the Russian Federation and other federal laws, the procedure for hiring and dismissing employees, the basic rights, duties and responsibilities of the parties to an employment contract, working hours, rest periods, incentives and penalties applied to employees, as well as other issues of regulating labor relations in organizations (Article 189 of the Labor Code of the Russian Federation).
The list of forms and types in which labor relations are manifested in these rules is not exhaustive. Moreover, in the commentary of Art. 56 of the Labor Code of the Russian Federation, we are talking only about the obligations of the employee as a party to the employment contract. Whereas he is also endowed with the Labor Code of the Russian Federation with significant rights in the field of protecting his rights and legitimate interests.
The basic rights and obligations of an employee as a party to an employment contract are given in Art. 21 of the Labor Code of the Russian Federation. They are specified in other articles of the Labor Code of the Russian Federation and a number of federal laws.
Conscientiously fulfill their labor duties assigned to him by the employment contract;
Comply with the internal labor regulations of the organization;
Follow labor discipline;
Comply with established labor standards;
Comply with labor protection and labor safety requirements;
Take care of the property of the employer and other employees;
Immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the property of employers.
As you can see, the obligations of the employee, stipulated by the employment contract, to personally perform the labor function and comply with the internal labor regulations are only part of the duties that he must begin to fulfill by signing the employment contract.
The employee and the employer enter into an employment contract as equal partners. They are equal partners in the process of implementation of the agreement. This equality finds its expression as an equal obligation of the parties to fulfill the obligations assigned to them by the contract and to observe in relation to each other the rights granted to them by labor legislation.
This is where the equality of the parties to the employment contract ends. The employer subordinates to his will, organizes, directs and controls the labor activity of the employee. The employee, in turn, is subject to the will of the employer and his representatives. Thus, the relationship of the parties to the employment contract is personified in the person of the employee and his immediate supervisors, who organize his labor activity, whose instructions he is obliged to follow.
Unfortunately, Art. 56 of the Labor Code of the Russian Federation does not say that the employment contract imposes on the employee the obligation to follow the instructions of the representatives of the employer. Nevertheless, in each employment contract it is desirable to indicate such an obligation of the employee, thus making him initially aware of this.
The obligations of the employer are set out in Art. 56 is as succinct as the duties of the employee. The employer must first provide the employee workplace to perform the work stipulated by the contract, to create conditions for its uninterrupted labor activity.
Secondly, the employer is obliged to provide the employee with appropriate working conditions in the prescribed manner. According to Art. 209 of the Labor Code of the Russian Federation, working conditions are a combination of factors in the working environment and the labor process that affect the performance and health of workers.
If in Art. 56 of the Labor Code of the Russian Federation, we are talking only about these factors, then the obligations of the employer in relation to the employee are unreasonably limited. The scope of the employer's obligations in relation to the employee is defined by the Labor Code of the Russian Federation, many federal laws, regulatory legal acts, as well as agreements, collective agreements, local regulations, which are discussed in relation to working conditions in Art. 56 of the Labor Code of the Russian Federation.
Therefore, we believe that the concept of "working conditions", referred to in Art. 56, should be interpreted in broad sense. These include work time and rest time, remuneration and labor rationing, occupational safety and health, work schedule, etc. etc.
Thirdly, according to Art. 56 of the Labor Code of the Russian Federation, the employer is obliged to pay wages to the employee in a timely manner and in full. Such an entry in the employment contract is very relevant for the employee. It is advisable to include it in each newly concluded employment contract, as a personal obligation of the employer to the employee.
The Labor Code of the Russian Federation defines the concept of parties to labor relations. According to Art. 20 they are the employee and the employer.
Employee - individual entered into an employment relationship with the employer.
Employer - an individual or a legal entity (organization) that has entered into an employment relationship with an employee.
In cases established by federal laws, another entity entitled to conclude employment contracts may act as an employer. Thus, the employer of the director of a state unitary enterprise is a body government controlled exercising the powers of the owner of the property of the enterprise.
The rights and obligations of the employer in labor relations are exercised:
An individual who is an employer;
Governing bodies legal entity(organizations) or persons authorized by them in the manner prescribed by laws, other regulatory legal acts, constituent documents of a legal entity (organization) and local regulations. For example, an employer representative joint-stock company is its CEO (Director).
Having entered into an employment relationship, the employee and the employer receive basic rights, and at the same time they are assigned basic duties in accordance with Art. 21 and 22 of the Labor Code of the Russian Federation. In these articles, the rights and obligations of the parties to labor relations are declared, given in general view. They are specified in other articles of the Labor Code of the Russian Federation.
For an entrepreneur, this is very beneficial, since the conclusion of such contracts is regulated not by labor, but by civil legislation, in which the principle of discretion, i.e. freedom of the parties in civil circulation, is carried out most consistently. In such an agreement, the administration can make almost any conditions for hiring an employee, therefore, when applying for a job, you should be conscious of the name of the agreement that the administration of the organization has prepared and offers to sign to your future employee.
It is precisely what is stated in Art. 56 of the Labor Code of the Russian Federation, the concept of "employment contract" allows you to limit it from civil law contracts, the implementation of which is also related to labor activity. The signing by a person entering a job of an employment contract is of paramount practical importance for him, since only persons who have concluded employment contracts are subject to labor legislation.
In cases where the employment contract is drawn up in insufficient detail, as a rule, in an arbitrary form, difficulties may arise in the event of a conflict between the employer and the employee when deciding whether this contract is labor or civil law. In such a situation, the worker should proceed from the fact that the specifics of his obligations under an employment contract consist in the performance of a specific labor function entrusted to him by the employer, which, as a rule, is determined by a specific specialty, position, corresponding qualifications, reflected in the contract.
It is the performance by the employee of a specific labor function, inextricably linked with subordination to the internal labor schedule, that makes it possible, first of all, to limit the employment contract from civil law contracts, the subject of which is only a certain result of labor, the performance of an individual specific labor task (order, assignment) carried out without subordination the performer of the work to the internal labor schedule of the enterprise.
A distinctive feature of the employment contract is also the fact that it contains the obligation of the employer to pay the employee wages in a timely manner and in full, the conditions for remuneration of the employee (including the amount tariff rate or official salary, additional payments, allowances, incentive payments). The concept of "wage" is used only in labor relations.
In turn, in civil law contracts, cash payments are usually called remuneration, as provided for in Art. 972 of the Civil Code, which regulates the conditions for concluding such contracts, or the price of the contract (Article 424 of the Civil Code).
In Art. 57 of the Labor Code of the Russian Federation specifically highlights the information necessary to determine the parties to the employment contract, such as the last name, first name, patronymic of the employee, his address of residence, etc. (this information was erroneously considered essential terms of the employment contract). It is emphasized that if an employee is hired to work in a branch, representative office or other separate structural unit an organization located in another locality, it is necessary to indicate the name of a separate structural unit and its location.
The terms of an employment contract are classified differently. Mandatory and additional terms.
Among the mandatory ones, the content and scope of such a condition as "place of work" is formulated differently, and this amendment for the employee can be assessed as negative. According to the Federal Law of June 30, 2006 N 90-FZ, the condition on the place of work will be mandatory only in terms of a direct indication of the place of work; more detailed specification is required only in relation to one case: if an employee is hired to work in a structural unit located in another area (branch, representative office or other separate unit). An indication of any structural unit - what is now required by the Labor Code of the Russian Federation - is recognized by the Federal Law as an additional clarifying condition. Such a change is likely to lower the level of rights currently established by the Labor Code of the Russian Federation. Currently, the norm of the Labor Code of the Russian Federation significantly affects the employer's ability to unilaterally change the terms of the employment contract, namely, it affects the legal qualification of the employer's actions, whether it will be recognized as a transfer that requires the consent of the employee, or a transfer that does not require the consent of the employee.
The absence in the employment contract of any information and (or) conditions from among those provided for in parts one and two of Art. 57 is not a basis for recognizing an employment contract as not concluded or for terminating it. Missing information and (or) conditions must be added to the employment contract additionally.
Apart from mandatory conditions, the parties may determine in the employment contract additional conditions that do not worsen the position of the employee in comparison with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, in particular - on specifying the place of work (indicating the structural department and its location) and (or) about the workplace.
Thus, we see that the indication in the employment contract of the place of work as a separate structural unit is a prerequisite of the contract, and the indication of a structural unit that is not a separate one goes into the category of optional conditions. Unlike most of the changes made solely in the interests of the employee, this amendment represents a certain convenience for the employer, as it gives him the opportunity to move the employee at his own discretion without the consent of the latter from one department to another, which, in essence, is dictated by production necessity and therefore in no way can not be recognized as the arbitrariness of the employer.
Of course, such movements will be possible only if two conditions are met:
1) the structural unit is not fixed in the employment contract;
2) the labor function of the employee, fixed by the employment contract, does not change.
By agreement of the parties, the employment contract may also include the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms, local regulations, as well as the rights and obligations of the employee and the employer arising from the terms of the collective agreement, agreements . The failure to include in the employment contract any of the specified rights and (or) obligations of the employee and the employer cannot be considered as a refusal to exercise these rights or to fulfill these obligations.
Article 57 of the Labor Code of the Russian Federation, which defines the content of an employment contract, has been brought into line with the general legal principles of dividing contractual conditions into mandatory and additional ones, since the civil law structure that singles out the "essential" terms of the contract, and introduced into the Labor Code of the Russian Federation when it was adopted, led to a large number of practical problems. The proposed approach, on the one hand, expands the possibilities of individual contractual regulation of labor relations, thereby developing one of the main directions of the reform of labor legislation, and on the other hand, it allows increasing the guarantees of compliance by the parties (primarily employers) with certain parties to the terms of the employment contract.
The refusal to single out the "essential" terms of the employment contract made it possible to rework and systematize the norms of Chapter 12, which define the concept and procedure for making transfers, including temporary ones.
A transfer to another job is a permanent or temporary change in the labor function while continuing to work for the same employer, as well as a transfer to work in another area together with the employer. A change in the structural unit in which the employee works is also equated to a transfer, if it was determined by the employment contract.
By general rule transfer to another job is allowed only with the written consent of the employee, with the exception of cases expressly provided for by the Code. Without the consent of the employee, only his temporary transfer for a period of up to one month in the presence of circumstances that endanger the life or normal living conditions of the entire population or part of it, i.e. in cases where the assignment of another work not stipulated by the employment contract cannot be considered as forced labor.
The next very important, but far from unambiguous, novel concerns the legal consequences of not including any information or mandatory conditions in the text of an employment contract.
Such information or conditions are defined as follows:
1) this is not a basis for recognizing an employment contract as not concluded or a basis for terminating it;
2) the employment contract must be supplemented with missing information and / or conditions.
On the one hand, it is correctly pointed out that it is inadmissible to recognize an employment contract as not concluded or terminate it. This is true because the employer draws up an employment contract, and the employee cannot bear negative legal consequences due to some omissions on the part of the employer. Also, this rule emphasizes the difference between an employment contract and the essential terms of the contract in civil law theory.
On the other hand, opportunities for abuse by employers are created, since the significance of such a condition of an employment contract as "conditions for remuneration" is leveled. As you know, many employers tend not to specify a specific amount of remuneration in employment contracts, preferring to make a reference to the staffing table or the wage regulation in it. Thus, they seek to change the terms of the employment contract on remuneration not through the procedure established by the Labor Code of the Russian Federation, i.e. by agreement of the parties, but unilaterally, changing only a local normative act.
In connection with the foregoing, it is advisable to draw the attention of readers to the following:
1) According to Art. 65 of the Labor Code of the Russian Federation, the documents listed in it are presented, they do not remain for storage with the employer, with the exception of the work book.
2) In the cited in Art. 65 of the Russian Federation, the list of documents does not contain a personnel record sheet, the so-called "questionnaire". Therefore, a personnel registration sheet is not filled out by a person entering a job, unless this is provided for by federal laws, decrees of the President of the Russian Federation, and decrees of the Government of the Russian Federation.
3) In the same way, a personal application with a request (offer) to hire is not required.
According to Art. 66 of the Labor Code of the Russian Federation, the work book of the established form is the main document on the labor activity and work experience of the employee.
Employers (with the exception of individual employers) are required to keep work books for each employee who has worked in the organization for more than five days, but only if this work is the main one for the employee.
Information about part-time work, at the request of the employee, is entered in the work book at the place of his main job, on the basis of documents confirming part-time work.
Information about the employee (last name, first name, patronymic, date of birth, education, profession, specialty), work performed by him, transfers to another permanent job, dismissal and grounds for termination of the employment contract are entered in the work book; about awards for achievements in work.
At the same time, entries on the reasons for terminating the employment contract must be made in strict accordance with the wording of the Labor Code of the Russian Federation or other federal law and with reference to the relevant article and paragraph of these legislative acts. Information about disciplinary sanctions imposed on employees is not entered into work books, except in cases where the penalty is dismissal of the employee.
According to Art. 67 of the Labor Code of the Russian Federation "Form of an employment contract":
An employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties - the employee and the employer - an individual or a representative of the employer - a legal entity.
One copy of the employment contract is transferred to the employee, the other is kept by the employer.
1. For the employee, the meaning of the employment contract, as provided for in Art. 67, is especially important because the use of this particular concept makes it possible to restrict it from civil law contracts, the implementation of which is also related to labor activity. Signing by a person, of paramount practical importance, since only persons who have concluded employment contracts, according to the Labor Code of the Russian Federation, are subject to labor legislation.
2. It is equally important for the employee that a written employment contract is concluded with him. The advantage of a written employment contract is that all the terms of the contract are documented in a single act, and this increases the guarantees for the parties to the contract in compliance with the agreements reached.
At the same time, a certain part of the directors' corps seeks to conclude an oral labor contract with employees, which makes it possible for the administration to neglect the oral agreement in the future or interpret it based on their own interests. This position is explained primarily by the fact that a written contract in the future practically excludes the possibility of interpreting the terms of employment contained in it not in favor of the employee. Therefore, a written employment contract is beneficial for the employee. However, this does not exhaust the benefits for the employee that he receives when concluding a written contract.
First of all. An employment contract (contract) in writing is concluded in most cases for an indefinite period, while, for example, collective agreement- for a period not exceeding three years. A certain level of wages, the mechanism of its indexation, benefits and guarantees for employees contained in this collective agreement may be canceled or worsened in a subsequent collective agreement, while the working conditions contained in a written employment agreement will continue to operate.
Secondly. An employment contract concluded in writing makes it possible to take into account and document the level of qualification of an employee, the value for the enterprise of his profession, specialty, and determine the measure of his work. Thus, with the help of this document, there is a real opportunity to pay in accordance with the quantity and quality of the employee’s labor, which ultimately could not be achieved when concluding an oral labor contract using rates and salaries calculated on the basis of average labor standards.
Thirdly. Contained in a written employment contract special conditions work of an employee, often different from those generally accepted at the enterprise, apply to one person without affecting the interests of other employees, which greatly simplifies and facilitates his relationship with the administration. The likelihood of any conflicts, misunderstandings between the employee and management is reduced, and if they arise, they are resolved individually, colleagues at work are not drawn into the conflict.
An employment contract that is not properly executed is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his representative. With such an actual admission of the employee to work, the employer is obliged to draw up an employment contract with him in writing no later than three days from the date of the actual admission of the employee to work.
Prior to the adoption by the RF Armed Forces of Resolution No. 2 of March 17, 2004, the answer to the question remained unclear - who refers to the representatives of the employer, with the knowledge or on behalf of which the employee can legal grounds to start work, if the employment contract with him was not properly executed?
The answer to this question is contained in paragraph 12 of the said Resolution. The court clarified that the representative of the employer in this case is a person who, in accordance with the law, other regulatory legal acts, constituent documents of a legal entity (organization) or local regulations or by virtue of an employment contract concluded with this person, is empowered to hire employees.
The procedure for registering an employee for work is regulated by Art. 68 "Registration and employment" of the Labor Code of the Russian Federation. According to Art. TC RF:
Employment is formalized by the order (instruction) of the employer, issued on the basis of the concluded employment contract. The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract.
The order (instruction) of the employer on hiring is announced to the employee against receipt within three days from the date of writing the employment contract. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction).
Article 69 of the Labor Code of the Russian Federation establishes that persons under the age of eighteen, as well as other persons, in cases provided for by the Labor Code of the Russian Federation and other federal laws, are subject to a mandatory medical examination when concluding an employment contract.
Organization employees Food Industry, Catering and trade, water supply facilities, medical and preventive and children's institutions, as well as some other organizations undergo the specified medical examinations (examinations) in order to protect public health, prevent the occurrence and spread of diseases.
An employment contract concluded for an indefinite period may be terminated on the grounds provided for by the Labor Code of the Russian Federation, and in relation to certain categories of workers - on additional grounds established by federal laws.
Article 58 of the Labor Code of the Russian Federation also provides that it is prohibited to conclude fixed-term employment contracts in order to evade the employer from granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.
This article provides for cases where a fixed-term employment contract is transformed into a contract concluded for an indefinite period.
Firstly, in cases where none of the parties to a fixed-term employment contract demanded its termination due to its expiration, and the employee continues to work after the expiration of this period, the employment contract is considered concluded for an indefinite period.
Secondly. An employment contract concluded for a fixed period in the absence of sufficient grounds for this is considered concluded for an indefinite period.
However, the body exercising state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms, or a court, must establish the fact that there are no sufficient grounds for concluding a contract for a certain period. Only by decision of this body or court can a fixed-term employment contract be considered a contract concluded for an indefinite period.
Regarding the application of Art. 58 of the Labor Code of the Russian Federation, the Supreme Court of the Russian Federation explained (clause 13 of the Resolution of the Supreme Court of the Russian Federation of March 17, 2004 No. 2) that when deciding the question of the validity of concluding a fixed-term employment contract with an employee, it should be borne in mind that such an agreement is concluded 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, unless otherwise provided by the Labor Code of the Russian Federation and other federal laws.
The procedure for the entry into force of an employment contract signed by the employer (his representative) and now by the employee is regulated by Art. 61 of the Labor Code of the Russian Federation:
An employment contract enters into force from the day it is signed by the employee and the employer, unless otherwise provided by federal laws, other regulatory legal acts or an employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.
The employee is obliged to start performing labor duties from the day specified in the employment contract.
If the employment contract does not stipulate the day of commencement of work, then the employee must start work on the day following the entry into force of the contract.
If the employee did not start work on time without good reason within a week, then the employment contract is canceled.
This norm was introduced by the Labor Code of the Russian Federation; there was no such norm in the Labor Code of the Russian Federation. If we ignore the possibility that any special procedure for the entry into force of an employment contract will be established by federal laws, other regulatory legal acts, then the date of its entry into force will depend solely on the parties to the employment contract - the employer and employee:
The employment contract comes into force from the day it is signed by the employee and the employer, unless otherwise provided by the employment contract;
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.
Thus, depending on the agreed will of the parties, an employment contract may enter into force from the day it is signed by the parties or from the day indicated in it. The contract signed by the parties, regardless of whether or not the date of its entry into force is indicated in it, practically enters into force from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.
This follows from the text of ab. 1 st. 61 of the Labor Code of the Russian Federation. This can put the worker in a difficult position.
Firstly, there is no guarantee that the employment contract concluded by him will ever come into force. Secondly, there is no guarantee that he will be allowed to work. Despite the fact that the parties to the employment contract have at its conclusion equal rights, the decision of the issue - whether the contract will enter into force or not, whether the employee will be allowed to work - depends only on the employer or his representative.
In Art. 61 of the Labor Code of the Russian Federation there is a norm obliging an employee to start work on a certain day, but there is no norm obliging an employer to allow an employee to work on a certain day. Therefore, in the interests of the employee, it is imperative to stipulate in the employment contract the day the work begins.
The Labor Code of the Russian Federation imposes certain obligations on the employer in relation to the employee after the conclusion of an employment contract. First, it is prohibited to require an employee to perform work not stipulated by an employment contract, with the exception of cases provided for by this Code and other federal laws (Article 60).
This is a kind of guarantee of observance of the labor rights of the employee, which prohibits the employer from demanding that he perform work that is not specified in the employment contract. However, this guarantee is not absolute. Labor Code of the Russian Federation and other federal laws in accordance with Art. 60 may provide for cases in which the employer has the right not only to demand, but even to oblige the employee to perform work not stipulated by the employment contract.
Secondly. Upon a written application of the employee, the employer is obliged, no later than three days from the date of submission of this application, to issue to the employee copies of documents related to work (employment orders, orders for transfers to another job, orders for dismissal from work; extracts from the work book; certificates of salary, period of work with this employer, etc.). Copies of these documents must be duly certified and provided to the employee free of charge (Article 62 of the Labor Code of the Russian Federation).
Transfer of an employee to another permanent job in the same organization at the initiative of the employer, i.e. change in the labor function or change in the essential terms of the employment contract.
Transfer of an employee at the initiative of the employer to a permanent job in another organization.
Transfer of an employee at the initiative of the employer to a permanent job in another area together with the organization.
All these transfers are allowed only with the written consent of the employee. It should be noted that the actions of an employer who proposes to employees to change the essential terms of the employment contracts concluded with them do not contradict the Labor Code of the Russian Federation.
According to his Art. 60 of the Labor Code of the Russian Federation, it is prohibited to require an employee to perform work not stipulated by an employment contract, with the exception of cases provided for by this Code and other federal laws. In ab. 1 st. 72 of the Labor Code of the Russian Federation, three such cases are given, i.e. provided for by the Labor Code of the Russian Federation.
The Supreme Court of the Russian Federation drew attention to this circumstance in its decision of December 28, 2006 No. 63. Referring to the content of Art. 60 and 72 of the Labor Code of the Russian Federation, the Court explained that a transfer to another permanent job in the same organization, requiring the written consent of the employee, should be considered a change in the labor function or other essential conditions of the employment contract (part 1 of article 72, article 57 of the Labor Code of the Russian Federation) . The same consent must be obtained from the employee in case of transfer to a permanent job in another organization or in another locality together with the organization. At the same time, the RF Armed Forces explained that another locality should be understood as an area outside the administrative-territorial boundaries of the corresponding settlement.
In connection with the foregoing, it should be noted that the RF Armed Forces amended the text of par. 1 st. 72 of the Labor Code of the Russian Federation, in which an inaccuracy was made - the labor function of an employee is not attributed to the essential conditions of an employment contract. In ab. 1 refers to a change in the labor function or a change in the essential terms of the employment contract. The court clarified: a change in the labor function or other essential terms of the employment contract.
Changing the essential terms of the employment contract (paragraph 2 of article 72) is mandatory for an employee who, in accordance with a medical report, needs to be provided with another job. The employer is obliged, with the consent of such an employee, to transfer him to another available job that is not contraindicated for him for health reasons. If the employee refuses to transfer or there is no corresponding work in the organization, the employer dismisses the employee under paragraph 8 of Art. 77 of the Labor Code of the Russian Federation.
In para. 3 art. 72 declares that it is not a transfer to another permanent job and does not require the consent of the employee to move him in the same organization to another workplace, to another structural unit of this organization in the same area, assignment of work on another mechanism or unit, if it is not entails changes in the labor function and other essential terms of the employment contract.
The Supreme Court of the Russian Federation clarified that if in the employment contract the place of work of the employee was determined with an indication of a specific structural unit, then a change in the structural unit of the organization is possible only with the written consent of the employee, since in this case this entails a change in the essential conditions of the employment contract. A structural subdivision of an organization should be understood as branches, representative offices, as well as departments, workshops, sections, etc.
The foregoing indicates, firstly, that the movement of an employee within the organization in those specified in par. 3 art. 72 of the Labor Code of the Russian Federation in cases without his consent is allowed, if the essential conditions of his employment contract are not violated (are not changed).
Secondly. The employee is interested in the fact that his employment contract indicates the lowest level unit in which he will work. If an entry about the unit is made in the employment contract, then it will be possible to transfer the employee to another unit in the future only with his written consent. As for the employer, such clarifications in labor contracts make it difficult for him to redistribute workers within the organization when this is caused by production necessity.
The employee must keep this circumstance in mind and insist on his own, referring to the provisions of Art. 57 of the Labor Code of the Russian Federation. According to Art. 57 to the essential terms of the employment contract, i.e. the conditions that are included in it without fail include the place of work (indicating the structural unit).
In Art. 74 of the Labor Code of the Russian Federation provides emergency circumstances, in the event of which the employer has the right to temporarily transfer the employee (employees) to work not stipulated by the employment contract. Such a transfer is allowed to prevent:
Catastrophe, industrial accident or elimination of the consequences of a catastrophe, accident or natural disaster;
Accidents;
Downtime (temporary suspension of work due to economic, technological, technical or organizational reasons);
Destruction or damage to property;
And also to replace an absent employee.
The Supreme Court of the Russian Federation, in its resolution of December 28, 2006 No. 63, gave a detailed explanation on the procedure for applying the provisions of Art. 74 of the Labor Code of the Russian Federation. In particular, the Court, based on the provisions of the ILO Convention No. 29. 1930 on forced or compulsory labor and Art. 4 of the Labor Code of the Russian Federation, clarified the conditions under which it is allowed to transfer employees to work not stipulated by an employment contract for:
Prevention of downtime (temporary suspension of work due to economic, technological, technical or organizational reasons);
Prevention of destruction or damage to property;
Replacement of a temporarily absent employee.
Temporary transfer of an employee without his consent to work not stipulated by an employment contract in these cases may be considered justified, provided that it was caused by emergency circumstances or when failure to take the indicated measures could lead to a catastrophe, industrial accident, natural disaster, accident and similar consequences .
All (without exception) employees temporarily transferred to a job not stipulated by an employment contract, in accordance with Art. 74 of the Labor Code of the Russian Federation, certain guarantees are given.
1. The employer has the right to involve employees in work not stipulated by an employment contract in an organization that is their place of work. He has no right to do this outside of this organization.
2. Such a transfer can only be temporary - up to one month. However, the number of transfers during the year art. 74 is not limited. Apparently because it is impossible to foresee the probability of catastrophes, accidents, natural disasters and other emergencies in advance.
There is one exception to this rule: the duration of a transfer to another job to replace an absent employee cannot exceed one month during a calendar year (from January 1 to December 31). Such a wording means, in particular, that the employer is not entitled to involve employees in specified works in vacancies and positions.
The Supreme Court of the Russian Federation explained (clause 18 of Resolution No. 63 of December 28, 2006) that the duration of one such transfer cannot exceed one month. At the same time, based on Parts 1 and 2 of Art. 74 of the Labor Code of the Russian Federation, a transfer to replace an absent employee can also be repeated, but it total duration should not exceed one month during the calendar year (from January 1 to December 31).
3. The transfer of an employee to work requiring lower qualifications is allowed only with his written consent.
4. Payment for the time of translation is made according to the work performed, but not lower than the average salary for the previous job.
5. An employee cannot be transferred to work that is contraindicated for him for health reasons.
Temporary transfer to work not stipulated by the employment contract, subject to the above guarantees, is mandatory for the employee. In this regard, the Supreme Court of the Russian Federation (clause 19 of Decree No. 63 of December 28, 2006) explained that when resolving cases related to transfer to another job, it must be borne in mind that refusal to perform work in a transfer made in compliance with the law , is recognized as a violation of labor discipline, and absence from work - absenteeism.
Since the possibility of an employee going to court is not ruled out, it is in the interests of both parties to document the agreement reached between them even before the employer issues an order to dismiss the employee. One copy of such a document is transferred to the employee, the other remains with the employer.
The agreement should fix the agreement reached on the basis and term for termination of the employment contract. If after that the parties come to a different agreement, for example, on the cancellation of the previous agreement, the postponement of the term of dismissal, the termination of the employment contract on a different basis, then the new agreement must also be reflected in the relevant document. With such documents, each of the parties will be able to reasonably defend their interests in court.
2) expiration of the employment contract concluded in accordance with paragraph 2 of Art. 58 of the Labor Code of the Russian Federation, except in cases where the employment relationship actually continues and none of the parties has demanded their termination (clause 2, article 77 and article 79 of the Labor Code of the Russian Federation).
The expiration of a fixed-term employment contract is a legal fact. Upon its occurrence, each of the parties has the right to terminate the employment relationship. According to Art. 79 of the Labor Code of the Russian Federation, an employment contract concluded for a time:
The performance of certain work is terminated upon completion of this work;
The performance of the duties of an absent employee is terminated with the release of this employee to work;
The performance of seasonal work (Chapter 46 of the Labor Code of the Russian Federation) is terminated after a certain season.
If the employer decides to terminate the employment contract, he is obliged to notify the employee in writing at least three days before the dismissal. If the employment relationship actually continues and none of the parties demanded its termination, then the previously concluded fixed-term employment contract is automatically transformed into an agreement concluded for an indefinite period.
3) termination of the employment contract at the initiative of the employee (clause 3, article 77 and article 80 of the Labor Code of the Russian Federation).
Its procedure is regulated by Art. 80 of the Labor Code of the Russian Federation. Proclaimed Part 1 Art. 37 of the Constitution of the Russian Federation, the right of citizens to freely dispose of their abilities for work, to choose the type of activity and profession implies not only free, at the discretion of the citizen, entry into labor relations by concluding an employment contract, but also its free termination.
This right is not limited by the type of employment contract (fixed-term or concluded for an indefinite period), nor by the labor function of the employee, nor legal status employer, guided by the Labor Code of the Russian Federation.
According to Art. 80 of the Labor Code of the Russian Federation, an employee has the right to terminate an employment contract by notifying the employer in writing two weeks in advance. At the same time, by agreement between the employee and the employer, the employment contract may be terminated even before the expiration of the notice of dismissal.
In practice, this means that the employee must submit an application with a request (proposal) to dismiss him under paragraph 3 of Art. 77 of the Labor Code of the Russian Federation on such and such a date. The application must be submitted no later than two weeks before the date of the proposed dismissal. The employer, in turn, is obliged to agree with the proposal of the employee.
Thus, the only condition for an employee who wants to exercise his right to quit on own initiative, is the timely filing of the application. At the same time, the motives for dismissal have no legal significance. They can not be referred to in the application, and the employer does not have the right to require the employee to submit a reasoned application.
Article 80 of the Labor Code of the Russian Federation does not connect the fact that an employee has submitted an application with any circumstances other than the term for warning the employer of dismissal. Therefore, a warning can be made not only during the performance of the employee's labor duties, but also during vacation, illness, and other periods of time when the employee is not present at work.
Prior to the expiration of the notice of dismissal, the employee has the right to withdraw his application at any time. Dismissal in this case is not carried out if another employee is not invited to his place in writing, but not every employee, but one who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be refused to conclude an employment contract.
In this regard, we note that according to Art. 64 of the Labor Code of the Russian Federation, it is prohibited to refuse to conclude an employment contract to an employee invited in writing to work in the order of transfer from another employer within one month from the date of dismissal from the previous place of work.
In practice, this means that the employer, having received a letter of resignation from the employee on own will, in order to fill a future vacancy, sends another employer a request to transfer to him for employment a certain employee with whom this transfer is agreed. If such a request is satisfied, the specified employee will be dismissed from his previous job under paragraph 5 of Art. 77 of the Labor Code of the Russian Federation - in connection with the transfer at his request (with his consent) to the employer who made the request.
To refuse such an employee to conclude an employment contract in accordance with Art. 64 of the Labor Code of the Russian Federation is impossible. He will be hired, and an employee who has submitted a voluntary resignation will be fired in a timely manner, even if he does not want to now.
The Supreme Court of the Russian Federation in its clarification on the procedure for applying Part 4 of Art. 80 of the Labor Code of the Russian Federation (paragraph 22 of its resolution dated March 17, 2004 N 2), the issue of the timing of the withdrawal by the employee of his application for dismissal of his own free will also made it dependent on the provisions of Part 4 of Art. 127 of the Labor Code of the Russian Federation. According to it, when granting leave with subsequent dismissal upon termination of the employment contract at the initiative of the employee, this employee has the right to withdraw his application for dismissal before the day the vacation begins, if another employee is not invited to his place in the order of transfer.
The Supreme Court of the Russian Federation explained that, based on the content of Part 4 of Art. 80 and part 4 of Art. 127 of the Labor Code of the Russian Federation, an employee who warned the employer about the termination of the employment contract has the right to withdraw his application before the expiration of the warning period (and if leave is granted with subsequent dismissal - before the day the leave begins), and dismissal in this case is not carried out, provided that in his place in another employee is not invited in writing, who, in accordance with the Labor Code of the Russian Federation and other federal laws, cannot be refused to conclude an employment contract.
Let us turn to the final provisions of Art. 80 of the Labor Code of the Russian Federation - its parts 5 and 6.
Upon the expiry of the termination notice period, the employee has the right to stop work. On the last day of work, the employer is obliged to give the employee a work book, other documents related to work, at the written request of the employee, and make the final settlement with him.
If the employment contract has not been terminated after the expiration of the term of notice of dismissal and the employee does not insist on dismissal, then the employment contract continues.
As follows from the above text, after the expiration of the term of notice of dismissal, the employee has the right to consider himself withdrawn from the employment relationship he entered into by entering into an employment contract with the employer upon admission to work.
The employer, in turn, is obliged to dismiss the employee, accompanying the act of dismissal with the issuance of a work book to him with a corresponding record of dismissal (according to clause 3 of article 77 of the Labor Code of the Russian Federation), documents related to work, upon the written application of the employee, make a final settlement with him on wages, other payments, giving the amount due to the employee into his hands.
There are cases when employers do not issue a dismissal order after the expiration of the notice period, citing various reasons, including those that look valid. For example, if an employee has material assets employer, the need to finish some work, etc.
Such and similar actions (inaction) of the employer are illegal: the Labor Code of the Russian Federation has not established the reasons, circumstances, in the event of which, at the initiative of the employer, the notice period for dismissal can be extended. Therefore, if the employer does not dismiss the employee with the subsequent issuance of a work book or dismisses, but does not issue a work book, then Art. 234 of the Labor Code of the Russian Federation.
We remind readers that, according to this article, the employer is obliged to compensate the employee for the earnings he did not receive in all cases of illegal deprivation of his opportunity to work. Such an obligation, in particular, arises if the earnings are not received as a result of the employer's delay in issuing a work book to the employee.
Moreover, the forced postponement by the employer of the term of dismissal of the employee after the expiration of the notice of dismissal, motivated by the need to perform some kind of work, means, in our opinion, the introduction of forced labor, i.e. performance of work under the threat of the use of violent influence (Article 4 of the Labor Code of the Russian Federation). In the above case, the illegal delay in dismissal is not even a threat of violent influence. This is itself a violent influence.
In such a situation, the employee has the right to apply for the restoration of violated rights to the court, the federal labor inspectorate, the prosecutor's office.
A different development of events is also possible if the employee voluntarily agrees with the employer's offer to work for some more time, as often happens. In this case, the date of dismissal will be postponed by agreement of the parties.
If, after the expiration of the warning period, the parties seem to have forgotten about him or agreed to leave him without consequences - the employee continues to work, and the employer has not issued an order to dismiss him, then the employment contract continues.
4) termination of the employment contract at the initiative of the employer (clause 4, article 77 and article 81 of the Labor Code of the Russian Federation).
The grounds (cases) in which the employer has the right (which he may not use at his own discretion) to terminate the employment contract by the employee on his own initiative, as well as cases in which the employer is obliged to terminate such an agreement, are given, as shown above, in a number of articles of the Labor Code of the Russian Federation. The main list of such cases is given in Art. 81 of the Labor Code of the Russian Federation. In addition, the grounds for the dismissal of employees at the initiative of the employer are given in section XII "Peculiarities of labor regulation certain categories workers" of the Labor Code of the Russian Federation. Other grounds for dismissal at the initiative of the employer of various categories of workers are also provided for in a number of federal laws, which will be discussed later in the text.
cited in Art. 81 of the Labor Code of the Russian Federation, the grounds for terminating an employment contract at the initiative of the employer are set out concisely, in a general way.
The employment contract may be terminated by the employer in the following cases:
1) liquidation of the organization or termination of activity by an individual entrepreneur;
2) reduction in the number or staff of employees of the organization, individual entrepreneur;
3) inconsistency of the employee with the position held or the work performed due to insufficient qualifications, confirmed by the results of certification;
4) change of the owner of the property of the organization (in relation to the head of the organization, his deputies and the chief accountant);
5) repeated non-performance by an employee without good reason of labor duties, if he has a disciplinary sanction;
6) a single gross violation of labor duties by an employee:
a) absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in the event of absence from the workplace without good reason for more than four hours in a row during the working day (shift) );
b) the appearance of an employee at work (at his workplace or on the territory of the organization - the employer or the facility where, on behalf of the employer, the employee must perform a labor function) in a state of alcoholic, narcotic or other toxic intoxication;
c) disclosure of legally protected secrets (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties, including the disclosure of personal data of another employee;
d) committing at the place of work theft (including small) property of others, embezzlement, its deliberate destruction or damage, established by a court verdict that has entered into force or a decision of a judge, body, official authorized to consider cases of administrative offenses;
e) a violation by an employee of labor protection requirements established by the labor protection commission or the labor protection commissioner, if this violation entailed serious consequences (accident at work, accident, catastrophe) or knowingly created real threat occurrence of such consequences;
7) the commission of guilty actions by an employee directly serving monetary or commodity values, if these actions give rise to a loss of confidence in him on the part of the employer;
8) commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;
9) making an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;
10) a single gross violation by the head of the organization (branch, representative office), his deputies of their labor duties;
11) submission by the employee to the employer of false documents when concluding an employment contract;
13) provided for by the employment contract with the head of the organization, members of the collegial executive body of the organization;
14) in other cases established by this Code and other federal laws.
The certification procedure (clause 3 of part one of Article 81 of the Labor Code of the Russian Federation) is established by labor legislation and other regulatory legal acts containing labor law norms, local regulations adopted taking into account the opinion of the representative body of employees.
Dismissal on the grounds provided for in paragraph 2 or 3 of part one of Article 81 of the Labor Code of the Russian Federation is allowed if it is impossible to transfer the employee with his written consent to another job available to the employer (as vacant position or work corresponding to the qualifications of the employee, as well as a vacant lower position or lower paid job) that the employee can perform taking into account his state of health. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.
In the event of termination of the activities of a branch, representative office or other separate structural subdivision of an organization located in another locality, termination of employment contracts with employees of this subdivision is carried out according to the rules provided for in cases of liquidation of the organization.
Dismissal of an employee on the grounds provided for in paragraph 7 or 8 of part one of Article 81 of the Labor Code of the Russian Federation, in cases where guilty actions that give grounds for loss of confidence, or, accordingly, an immoral offense are committed by the employee outside the place of work or at the place of work, but not in connection with the performance them labor duties, is not allowed later than one year from the date of discovery of misconduct by the employer.
It is not allowed to dismiss an employee at the initiative of the employer (with the exception of the case of liquidation of the organization or termination of activity by an individual entrepreneur) during the period of his temporary disability and during the period of vacation.
Thus, the transfer procedure is not defined by law. It is not defined by any other regulatory legal act. However, the practice of translation has existed for many decades. Two types of transfers have developed - with the consent of the employee and at his request.
In the first case, when the employer no longer needs this employee and wants to help him find a job after being fired, he turns to a familiar employer with a proposal to transfer the employee to him. Upon reaching an agreement in principle, the employer offers the employee to transfer him to work in another organization, explaining the reason for such a proposal.
If the translation is in the interests of the employee, he gives his, as yet in principle, consent. In order to make a final decision, to receive guarantees that he will not be refused in another organization in concluding an employment contract, the employee must perform certain actions.
The employee needs to negotiate at the place future work make sure that the working conditions offered to him suit him. After that, he should get from the future employer written appeal to his current employer with a request to transfer an employee to him in the order of transfer with his consent to work in a position (specialty):
Such a written request will at the same time be an invitation to the employee to move in the order of transfer to work in this organization(to this employer - an individual). It is possible that the appeal will be sent by mail - this is of no fundamental importance.
Having received an appeal, the employer dismisses the employee under paragraph 5 of Art. 77 of the Labor Code of the Russian Federation - in connection with the transfer of an employee with his consent to the specified organization (employer - individual) for (to) work in the specified position (specialty). In the dismissal order, it is necessary to make a reference to the appeal of the new employer to the previous one as one of the grounds for dismissing the employee - another ground is the written consent of the employee.
In the second case, the employee himself negotiates with the future employer, receives from him an appeal to his current employer. If the latter does not object to the transfer, he dismisses the employee at his request under paragraph 5 of Art. 77 of the Labor Code of the Russian Federation.
According to par. 1 and 2 Art. 75 of the Labor Code of the Russian Federation, when the owner of the property of an organization changes, the new owner, no later than three months after the acquisition of ownership rights, has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant. As for all other employees of the organization, the change of ownership of the organization's property is not a basis for terminating employment contracts with them.
If the employee refuses to continue working due to a change in the owner of the organization's property, the employment contract is terminated in accordance with paragraph 6 of Art. 77 of the Labor Code of the Russian Federation (paragraph 3 of article 75 of the Labor Code of the Russian Federation).
According to paragraph 1 of Art. 66 and paragraph 3 of Art. 213 of the Civil Code of the Russian Federation (CC RF), the owner of the property created at the expense of the contributions of the founders (participants) of business partnerships and companies, as well as produced and acquired by them in the course of their activities, is a partnership or company. As for the participants in business partnerships and companies, they are by virtue of ab. 2 p. 2 art. 48 of the Civil Code of the Russian Federation have only liability rights in relation to these legal entities. For example, to be elected to the management bodies of a joint-stock company, to take part in general meeting shareholders to receive dividends.
It follows from this that the action of par. 1-3 art. 75 of the Labor Code of the Russian Federation does not apply to business partnerships and companies and, accordingly, to their employees. For details on the change of ownership of legal entities, see clause 32 of the Decree of the Supreme Court of the Russian Federation of March 17, 2004 N 2.
7) the employee's refusal to continue working due to a change in the essential terms of the employment contract (clause 7, article 77 and article 73 of the Labor Code of the Russian Federation).
Article 73 of the Labor Code of the Russian Federation establishes that, for reasons related to a change in organizational or technological working conditions, it is allowed to change, at the initiative of the employer, the essential terms of the employment contract when the employee continues to work without changing the labor function, i.e. continuation of work in a specialty, qualification or position determined by the employment contract. At the same time, changes in the essential terms of the employment contract may not be introduced that worsen the position of the employee in comparison with the terms of the collective contract, agreement.
As you can see, when deciding to change the essential terms of an employment contract with a given employee, the employer must comply with two conditions. First, there must be a change in organizational or technological working conditions. At the same time, the employer is obliged to proceed from the provisions of clause 21 of Resolution of the Supreme Court of the Russian Federation of March 17, 2004 N 2, according to which a change in the essential terms of an employment contract is allowed if it was the result of changes in the organization of labor or in the organization of production, for example, changes in technique and technology of production, improvement of jobs on the basis of their certification, structural reorganization of production, and did not worsen the position of the employee in comparison with the terms of the collective agreement, agreement.
Secondly, an employee cannot be offered a job in a different specialty, qualification or in a different position. Such work, we note, is one of the essential conditions of the employment contract.
As for its other essential conditions - the characteristics of working conditions, its payment, etc. (see article 57 of the Labor Code of the Russian Federation), then the employer has the right (naturally within the framework of the law) to change them at his discretion.
The employee is given time to make a decision on the proposal of the employer: he must be notified, informed, by the employer in writing of the introduction of these changes no later than two months before their introduction, unless otherwise provided by the Labor Code of the Russian Federation or other federal law.
Written notification must come directly from the representative of the employer, endowed in the prescribed manner with the authority to conclude, amend and terminate employment contracts. Such a representative is, as a rule, the head of the organization or an official authorized by him.
If the employee does not agree to continue working in the new conditions, the employer is also obliged to offer him in writing another job available in the organization that corresponds to his qualifications and state of health, and in the absence of such work, a vacant lower position or a lower-paid job that the employee can perform according to his qualifications and state of health.
If there is no such work in the organization, as well as in the event that the employee refuses the work offered to him, the employment contract is terminated in accordance with paragraph 7 of Art. 77 of the Labor Code of the Russian Federation.
This means that the employer, taking into account the opinion of the trade union committee, with which he may not agree, has the right to introduce a part-time or part-time work week. At the same time, the lower limits of part-time work and part-time work week Art. 73 have not been installed. Therefore, working hours can be significantly reduced, which will lead to a significant decrease in the income of workers.
If the employee refuses to continue working under conditions of reduced working hours, then the employment contract with him is terminated in accordance with paragraph 2 of Art. 81 of the Labor Code of the Russian Federation with the provision of appropriate guarantees and compensations to the employee (Articles 178-180 of the Labor Code of the Russian Federation).
According to par. 2 tbsp. 72 of the Labor Code of the Russian Federation, an employee who, in accordance with a medical report, needs to be provided with another job, the employer is obliged, with his consent, to transfer to another job that is not contraindicated for him for health reasons. If the employee refuses to transfer or if there is no relevant work in the organization, the employment contract is terminated in accordance with paragraph 8 of Art. 77 of the Labor Code of the Russian Federation.
A medical report on the need to transfer to another job may also be issued to an employee when undergoing mandatory medical examinations in accordance with Art. 213 of the Labor Code of the Russian Federation.
According to par. 1 st. 72 of the Labor Code of the Russian Federation, transfer to a permanent job in another locality together with the organization is allowed only with the written consent of the employee. If the employee refuses such a transfer, the employment contract with him is terminated under paragraph 9 of Art. 77 of the Labor Code of the Russian Federation.
At the same time, the employee's refusal to transfer to a branch, representative office, other separate subdivision located in other localities is not a basis for dismissal of the employee if the organization itself does not move to another locality.
10) circumstances beyond the control of the parties (clause 10, article 77 and article 83 of the Labor Code of the Russian Federation).
These circumstances are set out in Art. 83 of the Labor Code of the Russian Federation.
The procedure for conscription for military service is regulated by the Federal Law of March 28, 1998 N 53-FZ "On military duty and military service" (as amended on April 1, 2005 N 27-FZ). The basis for the dismissal of an employee is the summons of the military commissariat to appear at the recruiting station for sending to the place of military service, another document confirming the employee's entry into military service - enrollment in the Armed Forces, admission to military educational institutions.
An employee entering the alternative civilian service submits an order from the military commissariat to leave for the place of passage of the alternative civil service(Decree of the Government of the Russian Federation of May 28, 2004 N 256 "On approval of the Regulations on the procedure for performing alternative civilian service").
Reinstatement at work of an employee who previously performed this work, by decision of the state labor inspectorate or court (clause 2, article 83). Termination of an employment contract on the grounds specified in paragraph 2 of this article is allowed if it is impossible to transfer the employee with his consent to another job (part 2 of article 83).
The basis for the dismissal of an employee who performs the work of a person reinstated at work by the state labor inspectorate or a court is their decision. An employment contract with an employee is terminated in accordance with paragraph 10 of Art. 77 of the Labor Code of the Russian Federation.
Applying the provisions of paragraph 2 of Art. 83, the employer should not lose sight of the fact that in cases provided for by law, he is obliged to restore pre-existing labor relations with employees without their recourse to the court or supervisory authorities. In particular:
3. Trade union workers released from work in the organization as a result of being elected (delegated) to elective positions in trade union bodies are provided with the previous job (position) after the expiration of their term of office, and in its absence - other equivalent work (position) in the same or with consent of an employee in another organization (clause 1, article 26 of the Federal Law of January 12, 1996 N 10-FZ "On trade unions, their rights and guarantees of activity" .
Not being elected to office (clause 3, article 83).
Failure to be elected to a position is the basis for termination of an employment contract under paragraph 10 of Art. 77 of the Labor Code of the Russian Federation - due to circumstances beyond the control of the parties - with employees holding elective positions. These include, for example, managers business companies, chairmen production cooperatives, deans of faculties and heads of departments in higher educational institutions.
Election (elections) to a position should not be confused with election by competition to fill the relevant position. According to Art. 16 of the Labor Code of the Russian Federation these are different grounds for concluding employment contracts. For example, in a university, the positions of the dean of a faculty and the head of a department are elected, while the positions of other scientific and pedagogical workers are filled on the basis of competitive selection.
However, other scientific and pedagogical workers of the university, who filled positions on the basis of competitive selection and those who have not passed the next such selection will be dismissed on the same basis as the dean of the faculty, head of the department, not re-elected to positions - according to clause 10 of Art. 77 of the Labor Code of the Russian Federation.
Among the indications that exclude the possibility of continuing the previous work are, according to the Criminal Code of the Russian Federation: deprivation of the right to hold certain positions or engage in certain activities (Article 47), arrest (Article 54), imprisonment (Article 56, 57).
If an employee has a total loss professional working capacity, medical and social expertise establishes the degree of loss of professional ability to work 100%. In this case, the dismissal of the employee is carried out on the basis of the conclusion of the institution of medical and social expertise.
Termination of an employment contract in connection with the death of an employee or employer - an individual is carried out on the basis of a death certificate issued by the civil registry office.
According to Art. 42 of the Civil Code of the Russian Federation, a citizen may, at the request of interested persons, be recognized by the court as missing if during the year there is no information about his place of residence at his place of residence. A citizen may be declared dead by a court (Article 45 of the Civil Code of the Russian Federation) if there is no information at his place of residence about the place of his stay for five years, and if he went missing under circumstances threatening death or giving reason to assume his death from a certain unfortunate case, within six months.
As follows from the above text, an employee may be dismissed on the specified grounds not simply in the event of emergency circumstances that prevent the continuation of the employment relationship. He can be fired if this circumstance is recognized special decision Government of the Russian Federation or body state power subject of the Russian Federation in which emergency circumstances occurred.
Cases of violation of the rules for concluding an employment contract, excluding the possibility of continuing work, are given in Art. 84 of the Labor Code of the Russian Federation.
1. The conclusion of an employment contract in violation of a court verdict depriving a specific person of the right to hold certain positions or engage in certain activities (paragraph 2 of article 84).
Such a violation may occur in cases where, in accordance with Art. 47 of the Criminal Code of the Russian Federation, an employee, by a court verdict, is deprived of the right to hold positions in the public service, in local governments, or to engage in certain professional or other activities. Deprivation of such a right is established for a period of one to five years as the main punishment and for a period of six months to three years as an additional type of punishment.
2. The conclusion of an employment contract for the performance of work that is contraindicated for this person for health reasons in accordance with a medical report (paragraph 3 of article 84).
Termination of the employment contract in such cases is carried out in accordance with the conclusion of the institution of medical and social expertise.
3. The absence of an appropriate document on education, if the performance of the work requires special knowledge in accordance with federal law or other regulatory legal act (paragraph 4 of article 84).
Let us turn to the issue of termination of an employment contract by agreement of its parties. In Art. 78 of the Labor Code of the Russian Federation proclaims that an employment contract can be terminated at any time by agreement of the parties. The fact that the agreement of the parties is the basis for the termination of the employment contract is stated in paragraph 1 of Art. 77 of the Labor Code of the Russian Federation. Therefore, by agreement of the parties, the employee can (should) be dismissed under paragraph 1 of Art. 7 of the Labor Code of the Russian Federation.
The fact that the expiration of the employment contract is the basis for its termination is said only in paragraph 2 of Art. 77 of the Labor Code of the Russian Federation. Therefore, after the expiration of the employment contract, the employee is dismissed under paragraph 2 of Art. 77 of the Labor Code of the Russian Federation, except in cases where the employment relationship actually continues and neither of the parties has demanded their termination.
The right of an employee to terminate an employment contract is declared in Art. 80 of the Labor Code of the Russian Federation. At the same time, the grounds for termination of the employment contract are given in paragraph 3 of Art. 77 of the Labor Code of the Russian Federation: termination of the employment contract at the initiative of the employee. Naturally, in the order to dismiss the employee and in his work book, reference should be made to the dismissal under paragraph 3 of Art. 77 of the Labor Code of the Russian Federation.
Features of filling out information about dismissal in connection with the transfer of an employee to another permanent job to another employer (to another organization) or his transition to an elective job (position) are given in paragraph 6 of the Instructions for filling out work books, approved by a decree of the Ministry of Labor of the Russian Federation of October 10, 2003 Mr. N 69.
employment contract conclusion termination
The Constitution of the Russian Federation in Art. 37 proclaimed freedom of labor. Freedom in labor relations is manifested as the right of a person and a citizen to independently choose a profession, type of activity, the right to voluntarily conclude an employment contract.
An employment contract is a mandatory basis for the emergence of labor relations that mediate the use of living wage labor in the process of production of material and other values. Labor relations naturally have a complex structure, since the labor force, which is the subject of economic exchange, is unusual goods. It is capable, with the help of the employer's tools of labor, of creating new values, moreover, exceeding its own. Therefore, when exchanging the ability to work for money (payment for the use of this ability), it is required to establish specific conditions for its use: the labor function of an employee; measure of labor costs (actual or over time); the amount of remuneration for these labor costs; safe working conditions for the employee; disciplinary and administrative powers of the employer or his representative at the enterprise as a production organization, etc.
An employment contract in the legal literature is considered as a complex, diverse phenomenon.
Firstly, it is an element of objective law, the most important, central institution of labor law and labor legislation, containing rules on the procedure for its conclusion, preservation, amendment and termination.
Secondly, an employment contract is a legal fact with which the law associates the emergence of an employment relationship.
Thirdly, an employment contract, as a result of agreeing on the will of the two parties, can serve as a source of subjective labor law that determines the rights and obligations of the employee and employer as the main subjects of the labor relationship.
An employment contract is the main basis for the emergence of labor relations between an employer and an employee. Labor legislation in Russia is focused primarily on protecting the interests of the employee, so the likelihood of costs associated with the conclusion and termination of employment contracts, and their size is quite high. An employer can minimize costs in the event of their occurrence only by knowing and competently using the provisions of the law when working with employment contracts.
As a rule, entrepreneurs conclude a lot of employment contracts in the course of their activities. Moreover, they often approach this issue very formally, not realizing that an employment contract is a time bomb, in the event of an "explosion" of which an enterprise, and especially a small one, can suffer quite a significant material damage. And sometimes, on the contrary, understanding the amount of responsibility that falls on their shoulders, employers try to disguise the concluded employment contracts as contracts for work or paid services.
An employment contract is an agreement between an employee and an employer, under which the employee undertakes to perform work in a certain specialty, qualification or position subject to internal labor regulations, and an enterprise, institution, organization undertakes to pay wages to the employee and ensure working conditions provided for by labor legislation, collective contract and agreement of the parties.
Signs of an employment contract:
1) personal performance of a labor function;
2) performance of work in the general labor process;
3) subordination of an employee in the process of performing a labor function to the rules of internal labor regulations;
4) remuneration according to pre-established norms, but not lower than the guaranteed minimum established at the federal level.
Distinguish between civil law contracts and an employment contract.
The specificity of the employee's obligations under an employment contract is that he performs work on a specific labor function (specialty, position, qualification), and is also subject to internal labor regulations.
The labor function is the main condition of the employment contract. It guarantees the stability of the employment relationship. The employer is not entitled to demand from the employee the performance of work not stipulated by the employment contract, with the exception of cases provided for by federal laws.
The relevance of the definition of the labor function on present stage development Russian economy acquired a new sound. Employers, in order to save money, often try to expand official duties workers to limitless proportions. Departments for scientific organization there is virtually no labor left. And job descriptions for employees in many organizations are missing. This allows the employer to require the employee to perform functions that are not part of his duties, which leads to forced labor.
Employment contracts may be concluded:
1) for an indefinite period;
2) for a fixed period of not more than five years (fixed-term employment contract), unless a different period is established by the Labor Code and other federal laws.
A fixed-term employment contract is concluded in cases where 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 performance.
When concluding an employment contract, a person entering a job presents to the employer:
Passport or other identity document;
Employment book, except for cases when the employment contract is concluded for the first time or the employee goes to work on a part-time basis;
Insurance certificate of state pension insurance;
Documents of military registration - for persons liable for military service and persons subject to conscription for military service;
A document on education, qualifications or the availability of special knowledge - when applying for a job that requires special knowledge or special training.
In some cases, taking into account the specifics of work, the Labor Code, other federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation may provide for the need to present additional documents when concluding an employment contract.
The employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy of the employment contract is transferred to the employee, the other is kept by the employer.
An employment contract that is not properly executed is considered concluded if the employee actually started work with the knowledge or on behalf of the employer or his representative. In this case, the employer is obliged to draw up an employment contract with him in writing no later than three days from the date of the actual admission of the employee to work.
1.Sources
1. The Constitution of the Russian Federation of December 12, 1993 // Russian newspaper. 1993. No. 237. (December 25).
2. The Labor Code of the Russian Federation of December 30, 2001 (as amended by the Federal Law of December 30, 2006 No. 271-FZ).//Collection of Legislation of the Russian Federation.2007. No. 1.
3. Civil Code of the Russian Federation (Part Two) dated November 26, 1996 No. 14-FZ. (as amended by Federal Law No. 19-FZ of February 2, 2006).// Collected Legislation of the Russian Federation. 2006 No. 23.Art.2380.
4. Civil Procedure Code of the Russian Federation [entered into force on November 14, 2002 No. 138-FZ]: official. text: as of 17.01.2007//SPS Consultant Plus.
5. The Criminal Code of the Russian Federation of June 13, 1996 No. 63-FZ. (with amendments effective from 1.01.2008). // Collection of legislation of the Russian Federation. 2006. No. 31. Art. 3452.
6. Fundamentals of the legislation of the Russian Federation on the protection of the health of citizens of July 22, 1993 No. 5487-1. with the latest changes introduced by the Federal Law of February 2, 2006. No. 23-FZ. // Collection of Legislation of the Russian Federation.2006.No.6.St 640.
7. Federal Law No. 90-FZ of June 30, 2006 “On Amendments to the Labor Code of the Russian Federation, Recognition of Certain Regulatory Legal Acts of the USSR as Invalid on the Territory of the Russian Federation and Repealed Certain Legislative Acts (Provisions of Legislative Acts) of the Russian Federation” // Collection of legislation of the Russian Federation. 2006. No. 27. Art. 2878. (3 July)
8. Federal Law of August 22, 1996 No. 125-FZ “On Higher and Postgraduate Professional Education” // Rossiyskaya Gazeta. 1996. (August 29).
9. Federal Law of January 12, 1996 No. 10-FZ “On Trade Unions, Their Rights and Guarantees of Activity” (as amended and supplemented) // Collection of Legislation of the Russian Federation. 1996. No. 3 Art. 148. (January 15)
10. Federal Law of May 27, 1998 No. 76-FZ “On the Status of Military Personnel” // Collected Legislation of the Russian Federation. 1998. No. 22. Art. 2331. (June 1)
11. Federal Law of May 27, 2003 No. 58-FZ “On the Public Service System of the Russian Federation” // Collected Legislation of the Russian Federation. 2003. No. 22. Art. 2063. (June 2)
12. Law of the Russian Federation of January 13, 1996 No. 12-FZ. "On Education", as amended by the Federal Law of July 6, 2006 No. 104-FZ. / / Collection of Legislation of the Russian Federation. 2006. No. 29. Article 3122.
13. Decree of the Government of the Russian Federation of April 16, 2003 No. 225 “On work books” // Collection of Legislation of the Russian Federation. 2003. No. 16. Art. 1539. (April 21)
14. Decree of the Presidium of the Supreme Soviet of the USSR of May 18, 1981 “On approval of the Regulations on the procedure for compensation for damage caused to a citizen by illegal actions of bodies of inquiry, preliminary investigation, prosecutor's office and court” // Bulletin of the USSR. 1981. No. 21. Art. 741.
15. Decision of the Plenum Supreme Court RF dated December 28, 2006 No. 63 On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" // BVS.2004. No. 6.RG.2006. No. 297.
2.Literature
1. Barkashova S.V. Employment contract as a way of legal regulation of labor relations. – M.: Lawyer, 2006.
2. Vladimirov V.V. Medical examinations workers. Legislative requirements. Reflection of expenses in accounting, taxation // Accountant consultant. 2007. No. 3.
3. Golenko E.N., Kovalev V.I. Labor Code of the Russian Federation. Scientific and practical commentary (for commanders of military units, trade union workers and civilian personnel) - M .: For the rights of military personnel, 2007.
4. Guev A.N. Article-by-article commentary to the Labor Code of the Russian Federation - M .: Delo, 2006.
5. Enaleeva I.D., Mizyun N.V. Employer's Handbook // Labor Law. 2006. No. 7-8.
6. Kovalev V.I. Commentary on the Labor Code of the Russian Federation on the liability of employees - M .: For the right of military personnel, 2007.
7. Koksharov D.L. Some problems of the legislation of the Russian Federation on social partnership// Labor law. 2004. No. 4.
8. Commentary on the Constitution of the Russian Federation. Edition 2, supplemented and revised / ed. Okunkova L.A. - M.: BEK. 2007.
9. Commentary on the Labor Code of the Russian Federation / ed. Gusova K.N. - M .: OOO TK Velby; Prospekt Publishing House LLC, 2003.
10. Commentary on the Labor Code of the Russian Federation / ed. Orlovsky Yu.P. - M .: Law firm "Contract Infra" -M, 2006.
11. Commentary on the Labor Code of the Russian Federation / ed. Geyts I.V. - M.: Business and Service, 2008.
12. Korshunov Yu.N., Korshunova T.Yu., Kuchma M.I., Shelomov B.A. Commentary on the Labor Code of the Russian Federation - M .: Spark, 2002.
13. Korshunova T.Yu. Once again to the question of the legitimacy of concluding fixed-term employment contracts with employees / ed. Yaroshenko K.B. - M.: Legal literature, 2006.
14. Kurennoy A.M. Employment contract: concept, content and procedure for conclusion // Legislation. 2005. No. 1.
15. Kurennoy A.M. Labor Code of the Russian Federation: continuity and novelty // Legislation. 2007. No. 2.
16. Nesterova E. Social partnership and collective labor law // Russian justice. 2004. №1.
17. Orlovsky Yu.P. Commentary on the Labor Code of the Russian Federation (item-by-article) - M .: Contract Infra, 2006.
18. Polozov A.V., Ionova V.E. It is impossible to replace an employment contract with a civil law contract // Russian Justice. 2006. No. 7.
19. Porvatkin G.M. Conclude a contract: labor or civil? // Personnel business. 2006. No. 1.
20. Safonov M.N. Employment contracts: features practical application// Journal of Russian law. 2006. No. 8.
21. Labor law of Russia: textbook / ed. Kurennogo A.M. - M.: Jurist, 2007.
22. Labor law of Russia: textbook / ed. Kondratiev E.V., - M .: Jurist, 2008.
3.Materials of judicial practice
1. Decree of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” // Bulletin of the Supreme Court of the Russian Federation, June 2004, No. 6.
2. Resolution of the Presidium of the Supreme Court of the Republic of Tatarstan
dated December 21, 2005 No. 44-G-416 // (The text of the resolution was not officially published), SPS Garant, December, 2007.
Appendix 1
LABOR CONTRACT
For undefined period
№_______________
Kazan "______" _____________________ 200_____
Federal government agency"Vympel)", hereinafter referred to as the Employer, represented by the head Ivanov I.I. (hereinafter referred to as the Head), acting on the basis of the Charter, on the one hand, and ___________________, hereinafter referred to as the Employee, on the other hand, and collectively referred to as the Parties, have concluded this employment contract (hereinafter referred to as the Contract) as follows:
1. THE SUBJECT OF THE AGREEMENT
1.1. The Employer instructs, and the Employee assumes the obligation to perform work in a position (specialty) in a quality and timely manner _________________________________________________
1.2. An employee while working in ________________________________
(name of the structural unit)
directly reports to _________________________________
1.3. The employee is obliged to start work from "_____" ______ 200____
1.4. Work under the Contract is work at the main place of work.
1.5.. On the basis of the Agreement, the Employer issues an order to appoint an employee to the position _____________________________________________
2. TERM OF THE CONTRACT
2.1. The contract is concluded for an indefinite period.
2.2. Upon hiring, the Employee is set probation ______________________month(s).
3. WORKING HOURS
3.1. A 5-day period is set for the Employee work week. Days off are Saturday and Sunday.
3.2. When hiring the Employee, the following work schedule is established (the work schedule of the structural unit specified in clause 1.2, approved by the Head):
with _____________________________
before ____________________________
lunch: from _________________________
before_____________________________
4. PAYMENT
4.1. When hiring an employee, a _____ rank is established in accordance with the Unified tariff scale(_____) rubles tariff rate.
4.2. When applying for a job with an Employer:
4.2.1. The Employee retains the established allowance (established for employees of healthcare and social protection institutions for the duration of continuous work) in the amount of ________% of the tariff rate.
4.2.2. The employee is entitled to the following allowances:
__________________________________% of the tariff rate;
__________________________________% of the tariff rate.
4.3. Based on the results of work, the Employee may be awarded a bonus in the manner and amount determined by the Employer's regulatory documents.
4.4. The amount of remuneration of the Employee is also regulated by the legislation of the Russian Federation and the regulations of the Employer. The wage rates provided for in paragraphs. 4.1.-4.3. The contracts may be changed by the Employer unilaterally due to changes in the regulatory legal acts or the regulations of the Employer that establish the amount of remuneration.
4.5. The payment for the work of the Employee is made within the terms stipulated by the collective agreement between the Employer and the labor collective.
5. SOCIAL GUARANTEES
5.1. The employee is granted annual paid leave of _______ calendar days, additional paid leave for an irregular working day lasting _______ calendar days, additional paid leave for work in harmful (or dangerous) conditions _______ calendar days (Additional leave provided for on two or more grounds is provided to the Employee on one of the grounds most beneficial to him in quantitative terms of vacation days).
5.2. The Employer guarantees the insurance of the Employee in the system of compulsory social insurance in accordance with the current legislation.
6. RIGHTS AND OBLIGATIONS OF THE PARTIES
6.1. The employer undertakes:
When hiring, familiarize the Employee with his job description (is an annex to this Agreement);
Provide conditions for the effective performance by the Employee of his labor duties, improve his qualifications;
Provide the Employee with benefits and compensations provided for by the Agreement, the collective agreement between the Employer and the labor collective, as well as labor legislation.
6.2. The employer has the right:
In case of violation by the Employee of the rules of the internal labor regulations of the Employer, including labor discipline, non-fulfillment or improper performance imposed on him by the Agreement, his job description of labor duties to impose disciplinary sanctions on the Employee;
In connection with the production need to transfer the Employee for a period of up to one month to a job not stipulated by the Contract in any other structural unit of the Employer with remuneration for the work performed, but not lower than the average earnings for the previous job.
6.3. The employee undertakes:
Qualitatively fulfill the labor duties assigned to him, provided for by his job description, the Contract, protect the Employer's property, comply with the Employer's internal labor regulations, labor protection requirements;
Inform the Employer about the change in the registration address (address of the actual place of residence), the number of the state pension insurance certificate, passport data.
6.4. The employee has the rights provided for by labor legislation and his job description.
7. GROUNDS AND PROCEDURE FOR AMENDING AND TERMINATION OF THE AGREEMENT
7.1. The Agreement may be amended only by agreement of the Parties in writing (by drawing up an agreement to introduce amendments and (or) additions to the Agreement, by issuing an order by the Employer based on a personal written application of the Employee, or upon familiarization of the Employee against receipt with the regulations of the Employer related to terms of this Agreement) except in cases of changes in labor legislation.
7.2. The contract can be terminated in cases stipulated by labor legislation.
7.3. The termination of the Agreement is formalized by the order of the Employer.
7.4. The day of dismissal of the Employee in all cases is the last day of his work with the Employer.
8. RESPONSIBILITY OF THE PARTIES
8.1. In case of non-fulfillment or proper fulfillment by the Employee of his obligations specified in the Agreement, violation of labor legislation, he shall bear disciplinary, financial and other liability in accordance with the current legislation of the Russian Federation.
8.2. The employer bears material and other liability in accordance with the current legislation of the Russian Federation.
9. FINAL PROVISIONS
9.1. The Agreement is made in two copies, having the same legal force. One copy is kept by the Employer, the other by the Employee.
9.2. The Agreement comes into force from the moment of its signing by the Parties, subject to the confirmation of the Employer's signature with its seal and is valid until its termination in the prescribed manner.
9.3. The relations of the Parties not regulated by the Agreement are subject to the rules current legislation Russian Federation.
9.4. All disputes between the Parties regarding the fulfillment of the terms of the Agreement, the Parties agreed to resolve through negotiations in accordance with labor legislation.
10. DETAILS AND SIGNATURES OF THE PARTIES
Employer:
Federal State Institution "Vympel"
420038, Kazan, st. Minsk, d.8
TIN 1654053250 KPP 165201001
BIC 049205001 account 20105610000000010001
in GRCC NB Resp. Tatarstan
Bank of Russia Kazan
l/s 03031784570
Supervisor
I.I. Ivanov
Employee:
FULL NAME._______________________________________
_____________________________________________
Date of Birth:________________________________
registration address: _____________________________
_____________________________________________
address of actual residence:
_____________________________________________
tel. ___________________________________________
passport:______________________________________
issued by: _____________________________
_____________________________________________
TIN ____________________________________________
number of state pension certificate
insurance __________________________________
_______________/_____________________________/
(personal signature, signature transcript)
A copy of the Agreement has been received by ___________
Annex 2
Decree of the Presidium of the Supreme Court of the Republic of Tatarstan dated December 21, 2005 N 44-G-416 (extract)
The Presidium of the Supreme Court of the Republic of Tatarstan considered, based on the report of the judge, submitted by the ruling of the same judge for consideration on the merits, the case on the supervisory appeal, the complaint # of the General Director of JSC "T" F-va against the decision of the Naberezhnye Chelny City Court of the Republic of Tatarstan dated June 8, 2005 and the cassation decision of the court of cassation for civil cases of the Supreme Court of the Republic of Tajikistan dated September 26, 2005 in the case of claims by O-va, N-oy, M-oy, S-oy against JSC "Grid Company" JSC "T" on reinstatement, payment wages for the period of forced absenteeism, recovery of compensation in the amount of two months average earnings, recovery of compensation for moral damage, issuance of a duplicate of work books, as well as a supervisory appeal against a private ruling of the court of cassation in civil cases of the Supreme Court of the Republic of Tajikistan dated September 26, 2005,
Having listened to the explanations of the representative of JSC "T" M-nu, who supported the supervisory complaint, the explanations of N-oh, M-oh, S-oh, who objected to the supervisory complaint, the Presidium established
O-s, N-na, M-va, S-na filed a lawsuit against JSC "Grid Company", JSC "T" for reinstatement, payment of wages for the time of forced absenteeism, recovery of compensation in the amount of a two-month average earnings, recovery of compensation for moral damage, issuance of a duplicate of work books.
In support of the application, they indicated that they worked at the Naberezhnye Chelny branch of OAO T. They were dismissed due to staff reduction under paragraph 2 of Article 81 of the Labor Code of the Russian Federation. The dismissal is considered illegal and unreasonable, since in fact there was a transfer of the Naberezhnye Chelny Electric Networks branch from one owner of OAO Tatenergo to the jurisdiction of OAO "Grid Company". In addition, there was a violation of the procedure for dismissal at the initiative of the administration to reduce staff. There was a massive dismissal of workers at the enterprise, but complete information was not submitted in the manner prescribed by law to the Employment Center in Nab. Chelny, and the opinion of the trade union body regarding the reduction of certain employees was not requested.
AT court session The plaintiffs supported the claim, specifying the requirements, asking them to be reinstated in the Naberezhnye Chelny branch of OAO Grid Company, and also to correctly calculate the amount of compensation.
The representative of the defendants did not recognize the claim.
By the decision of the Naberezhnye Chelny City Court of the Republic of Tatarstan of June 8, 2005, left unchanged by the cassation ruling of the court of cassation for civil cases of the Supreme Court of the Republic of Tatarstan of September 26, 2005, the claim was partially satisfied, it was decided to reinstate O-va as a driver of class 1 5 category, N-well as a legal adviser, S-well as a dispatcher of the 7th category, M-vu as an inspector of the personnel department at OAO T.
It was also decided to recover wages for the period of forced absenteeism in favor of each of the plaintiffs and compensation for non-pecuniary damage in the amount of 500 rubles. to each.
Further, the plaintiffs filed an application for clarification of the court decision, indicating that it was not clear from the decision why they were reinstated at OAO T, and not at NSEC T, in addition, they asked for indexation of the collected wages.
By the decision of the Naberezhnye Chelny City Court of the Republic of Tatarstan dated July 7, 2005, the application was denied.
By the cassation ruling # of the court of cassation for civil cases of the Supreme Court of the Republic of Tajikistan dated September 26, 2005, the ruling of the court regarding the refusal to clarify the decision was canceled, the issue was submitted for a new consideration.
The court of cassation for civil cases of the Supreme Court of the Republic of Tajikistan also issued a private ruling against the director of the branch of JSC "T" due to the fact that by the decision of the court the plaintiffs were reinstated at work at JSC "T", and by order of the defendant they were reinstated to their positions before their dismissal at the branch.
In the supervisory appeal of the General Director of JSC "T" the question is raised about the cancellation of the above court decisions as issued in violation of the law.
By the decision of the judge of the Supreme Court of the Republic of Tajikistan dated November 14, 2005, the case was requested to the Supreme Court of the Republic of Tajikistan.
By the decision of the judge of the Supreme Court of the Republic of Tajikistan dated December 12, 2005, the case was referred for consideration on the merits to the court of the supervisory instance - the Presidium of the Supreme Court of the Republic of Tajikistan.
The Presidium of the Supreme Court of the Republic of Tajikistan considers the above court decisions in this case to be cancelled.
By virtue of Article 387 of the Code of Civil Procedure of the Russian Federation, the grounds for canceling or changing judicial decisions by way of supervision are significant violations of the norms of substantive or procedural law.
In accordance with paragraph 2 of Article 81 of the Labor Code of the Russian Federation, an employment contract may be terminated by the employer in the event of a reduction in the number or staff of the organization's employees;
According to Article 394 of the Labor Code of the Russian Federation, in the event that a dismissal or transfer to another job is recognized as illegal, the employee must be reinstated in his previous job by the body considering the individual labor dispute.
From the materials of the case, it is seen that the plaintiffs worked in the above positions in the branch "Naberezhnye Chelny Electric Networks" of JSC "T". By order N 17 l / s they were dismissed due to a reduction in the number of staff in accordance with paragraph 2 of article 81 of the Labor Code of the Russian Federation. By the decision of the Naberezhnye Chelny City Court of the Republic of Tatarstan of June 8, 2005, left unchanged by the cassation ruling of the court of cassation for civil cases of the Supreme Court of the Republic of Tatarstan of September 26, 2005, due to violation of the dismissal procedure, the plaintiffs were reinstated at work: driver of the 1st class of the 5th category, N-on - as a legal adviser, S-on - as a dispatcher of the 7th category, M-va - as an inspector of the personnel department, in JSC "Tatenergo".
In the supervisory complaint, the complainant indicates that the defendant does not agree with the conclusions made by the court in the reasoning part of the decision and the cassation ruling that the plaintiffs are subject to reinstatement in JSC "T", since only liquidation commission, on the following grounds.
A legal entity is obliged to register its structural unit, otherwise it does not have the right to carry out its activities. Upon liquidation of a separate subdivision, the organization is obliged to report this to the tax authority at its location in accordance with the requirements of paragraph 2 of article 23 of the Tax Code of the Russian Federation. Deregistration in accordance with Article 84 of the Tax Code of the Russian Federation is carried out by the tax authority within 14 days from the date of filing such an application, i.e. until deregistration, the branch continues its activities. At the time of the reinstatement of employees by order N 249 dated June 9, 2005, the legal entity continued to carry out its activities through its separate subdivision - the branch of the NChES. And only by order of JSC "T" dated August 8, 2005 N 167, an instruction was given to consider the branch liquidated from August 15, 2005.
Further, the submitter of the supervisory appeal continues, the fact of restoration implies the restoration of the essential conditions of the employment contract, such, according to Article 57 of the Labor Code of the Russian Federation, includes the place of work, the Plaintiffs worked in a branch of OJSC located in Naberezhnye Chelny. Consequently, they had to be reinstated in the same branch where they worked before the dismissal.
In the additional supervisory complaint, the defendant's representative also requests that the decision be supplemented with an indication of the restoration of the plaintiffs in the branch of the NChES JSC "T".
As can be seen from the materials of the case, the plaintiffs before their dismissal worked in the branch of JSC "T" - Naberezhnye Chelny Electric Networks, in this regard, the Presidium cannot agree with the conclusions made by the courts that the plaintiffs are subject to reinstatement in JSC "T".
From the supervisory complaint of the defendant's representative, it is seen that by order of JSC "T" dated August 8, 2005 N 167, an instruction was given to consider the branch liquidated from August 15, 2005.
In this regard, the court should clarify the question of whether the branch is currently liquidated, whether it has a legal successor, and, depending on the established, resolve the claims of the plaintiffs on where the plaintiffs should be reinstated.
In this situation, the decision of the court cannot be recognized as lawful and justified, it is subject to cancellation, and the case is sent for a new trial to the same court. Accordingly, the private ruling of the court of cassation in this case is also subject to cancellation, because it concerns the merits of the claim.
Guided by Articles 388, 390 of the Code of Civil Procedure of the Russian Federation, decided:
The decision of the Naberezhnye Chelny City Court of the Republic of Tajikistan of June 8, 2005 and the cassation ruling of the court of cassation for civil cases of the Supreme Court of the Republic of Tajikistan of September 26, 2005 and the particular ruling of the court of cassation for civil cases of the Supreme Court of the Republic of Tajikistan of September 26, 2005 in this case are to be canceled, send the case for a new trial to the same court with a different composition of judges.
Satisfy the supervisory appeal of JSC "Tatenergo" in part.
The Constitution of the Russian Federation of December 12, 1993 // Rossiyskaya gazeta.1993. No. 237. (December 25)
Federal Law No. 90-FZ of June 30, 2006 “On Amendments to the Labor Code of the Russian Federation, Recognition of Certain Normative Legal Acts of the USSR as Invalid on the Territory of the Russian Federation and Invalidated Certain Legislative Acts (Provisions of Legislative Acts) of the Russian Federation” // Collection of legislation of the Russian Federation.2006. No. 27. Art. 2878.
Labor Code of the Russian Federation [adopted by the State Duma of the Russian Federation on December 21, 2001.]: official text: as of December 1, 2007.//SPS Consultant Plus
Civil Code of the Russian Federation (Part Two) No. 14-FZ of November 26, 1996 (as amended by the Federal Law of February 2, 2006). // Collection of legislation of the Russian Federation. 2006. No. 6. Art. 636.
Kurennoy A.M. Employment contract: concept, content and procedure for conclusion // Legislation. 2005. No. 1.S.84.
Kurennoy A.M. Employment contract: concept, content and procedure for conclusion // Legislation. 2005. No. 1.S.87.
Golenko E.N., Kovalev V.I. Labor Code of the Russian Federation. Scientific and practical commentary (for commanders of military units, trade union workers and civilian personnel) - M .: For the rights of military personnel, 2007. P. 149.
Barkashova S.V. Employment contract as a way of legal regulation of labor relations. - M.: Lawyer, 2006. P.38.
Korshunova T.Yu. Once again to the question of the legitimacy of concluding fixed-term employment contracts with employees / Ed. Yaroshenko K.B. – M.: Legal literature. 2006. P.59.
Civil Procedure Code of the Russian Federation [entered into force on November 14, 2002 No. 138-FZ]: official. text: as of 17.01.2007//SPS Consultant Plus.
Federal Law of August 22, 1996 No. 125-FZ “On Higher and Postgraduate Professional Education” // Rossiyskaya Gazeta. 1996. (August 29).
Decree of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" // Bulletin of the Supreme Court of the Russian Federation.2004. No. 6. (June)
Federal Law of May 27, 2003 N 58-FZ "On the public service system of the Russian Federation" // Collected Legislation of the Russian Federation. 2003 . No. 22. art. 2063. (June 2)
Koksharov D.L. Some problems of the legislation of the Russian Federation on social partnership // Labor Law. 2004. No. 4. P.17.
Guev A.N. Article-by-article commentary to the Labor Code of the Russian Federation - M .: Delo. 2006. P.45.
Introduction
Chapter I. Employment contract: concept, features, parties
1.1 The concept and legal meaning of an employment contract
1.2 The difference between an employment contract and related civil law contracts
1.3 The employee and the employer as the main participants in the employment contract
Chapter II. The procedure for concluding an employment contract
2.1 Conditions for concluding an employment contract
2.2 Documents required for concluding an employment contract
2.3 Form of conclusion of an employment contract
2.4 Entry into force of the employment contract
Chapter III. Contents of the employment contract
3.2 Duration of the employment contract
3.3 Fixed term contract
Conclusion
List of used literature
Appendix
Introduction
The topic “Employment contract” is quite relevant and especially significant for every able-bodied citizen. An employment contract is one of the main institutions of labor law; in the labor code, it occupies a central place and includes legal norms that determine the parties and the procedure for concluding an employment contract, its content, the rules governing the procedure for registering employment, transfer, changing the essential conditions of labor law, suspension from work, as well as termination of labor relations.
An employment contract is a legal fact that gives rise to an employment relationship, and at the same time, the basis for its operation in time. This provides an opportunity for the employee and the employer to take into account (coordinate) mutual interests not only at the time of the emergence of an employment relationship, but also during its existence. Changing the terms of an employment contract or terminating it, respectively, change or terminate the employment relationship. By concluding an employment contract, a citizen realizes the right granted to him by the Constitution of the Russian Federation to freely choose a job in accordance with his abilities, profession and qualifications. For the employer, the right to conclude employment contracts means the ability to select such employees who, in terms of their professional and business qualities, correspond to the work assigned, are the most qualified and experienced employees.
Having concluded an employment contract with an employer, a citizen becomes his employee and from that moment on he has the right to claim social guarantees and protection provided for by labor legislation. For its part, the employer acquires the right to require the employee to comply with the internal labor regulations, conscientious attitude to labor duties, fulfill the instructions and orders of the head on labor, the collective agreement (agreement) and the employment contract. If necessary, the employer has the right to apply disciplinary measures to the employee.
We can say that the employment contract is designed to regulate the relationship between the employee and the employer, to minimize disputes that may arise during the validity of the employment contract. It especially protects the employee's employment contract because, according to established practice, it is he who is the weakest party in this type of legal relationship.
Based on the fact that the basis of the employment contract are such principles as freedom of choice of profession, the right to work in accordance with the rules of safety and hygiene, the right to remuneration for work without any discrimination based on gender, nationality, social status, as well as the right to rest and protection from unemployment, an employment contract can be considered an element of the rule of law.
The meaning of the employment contract in the mechanism of legal regulation of labor is as follows:
1. An employment contract is a form of involvement in labor activity. It is through this agreement that a person's right to work is realized, which everyone freely chooses or freely agrees to (Article 2 of the Labor Code of the Russian Federation).
2. An employment contract is a legal fact that initiates an employment relationship (Article 15 of the Labor Code of the Russian Federation).
3. An employment contract is a litmus test that determines the presence or absence of an employment relationship in each specific case, i.e. the possibility of applying labor law (part 1 of article 11, part 1 of article 16 of the Labor Code of the Russian Federation).
4. An employment contract can be considered as one of the ways to regulate labor relations (Article 9 of the Labor Code of the Russian Federation).
5. An employment contract is one of the main institutions of the industry and science of labor law.
6. An employment contract is an important tool for personnel management.
An employment contract as a central institution of labor law is the subject of research by many scientists. Practically all specialists of labor law, in particular, such prominent scientists as: T.Yu. Korshunova, V.I. Mironov, Yu.P. Orlovsky, S.A. Panin, O.V. Smirnov, V.N. Skobelkin, V.N. Tolkunova, E.B. Khokhlov and many others.
object course research are public relations associated with the employment contract as an independent institution of labor law. Subject of study- Relevant labor laws. aim research is a comprehensive analysis of the employment contract, to achieve which the following tasks are set: 1) to clarify the concept of an employment contract and its differences from related civil law contracts; 2) consider the parties to the employment contract and their legal personality; 3) comprehensively analyze the content of the employment contract; 4) investigate the binding nature of the terms of the employment contract for its parties.
As general scientific research methods the methods of formal-logical and system-structural analysis were applied. According to its structure, the course work consists of an introduction, three chapters, a conclusion, a list of references.
Thus, having substantiated the significance and relevance of this topic, having determined and drawn up a plan for solving the tasks set, we can begin to disclose the problems that are the object of research.
1. Employment contract. Concept, features, sides
1.1 The concept and legal meaning of an employment contract
An employment contract is the main institution of labor law, reflecting the characteristic features of labor relations. An employment contract is a legal form of individual labor regulation in organizations, the basis for the development of labor relations.
In the science of labor law, an employment contract is considered in the following two aspects: as an agreement between an employee and an employer on labor at a given enterprise and as the most important institution of labor law that determines the norms of an employment contract: its conclusion, amendment and termination. An employment contract as an agreement on work is a legal fact that gives rise to an employment relationship of an employee, and a necessary prerequisite for the application of labor legislation to it and the emergence of other legal relations directly related to labor legislation.
An employment contract is a contract of a personal nature, since the employee personally carries out work in the general cooperation of labor and cannot do this through another person. Therefore, this agreement protects the identity of the employee, his health, honor and dignity. An employment contract, reflecting an individual way of regulating labor, may provide for additional labor benefits for an employee.
Federal Law of June 30, 2006 No. N 90-FZ did not make fundamental changes to the concept of an employment contract, formulated in Art. 56 of the Labor Code of the Russian Federation. Part 1 of the commented article is brought into line with the new edition of Art. 5 of the Labor Code of the Russian Federation, which clarifies the concepts of "labor legislation" and "other regulatory legal acts" that regulate labor relations and other relations directly related to them. It also contains some editorial changes that do not change the essence of the very concept of an employment contract.
Labor legislation (including labor protection legislation) in accordance with the new edition of Art. 5 of the Labor Code consists of the Labor Code of the Russian Federation, other federal laws and laws of the constituent entities of the Russian Federation containing labor law norms. Other normative legal acts containing labor law norms include: decrees of the President of the Russian Federation; Decrees of the Government of the Russian Federation; normative legal acts of federal executive bodies; normative legal acts of the executive authorities of the constituent entities of the Russian Federation; normative legal acts of local self-government bodies.
1.2 The difference between an employment contract and related civil law contracts
Formulated in Art. 56 of the Labor Code of the Russian Federation, the concept of an employment contract makes it possible to single out its main elements (features) that make it possible to distinguish an employment contract from civil law contracts related to the use of labor - a work contract (Article 702 of the Civil Code); contracts for the performance of research work, experimental design and technical work (Article 769 of the Civil Code); contracts for the provision of services for a fee (Article 779 of the Civil Code); contract of agency (Article 971 of the Civil Code).
These elements include:
the specifics of the duties assumed by the employee under an employment contract, expressed in the performance of work in a certain position in accordance with the staff list, profession, specialty, indicating qualifications, i.e. the labor function stipulated by the agreement of the parties;
performance of work in compliance with internal labor regulations;
the obligation of the employer to provide the employee with working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, as well as pay wages to the employee on time and in full.
Unlike an employment contract concluded with an employee to perform a certain labor function, all these civil law contracts are concluded for the performance of a specific work, the purpose of which is to achieve its specific end result. Achievement of a specific result stipulated by the contract entails the termination of this contract. In other words, unlike an employment contract, the performance of certain work under a civil law contract is only a way to achieve the result stipulated by the contract.
For example, according to paragraph 1 of Art. 702 of the Civil Code, under a work contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and hand over its result to the customer, and the customer undertakes to accept the result of the work and pay for it. Under the contract for the performance of experimental design and technological work, the contractor undertakes to develop a sample of a new product, design documentation for it or new technology, and the customer undertakes to accept the work and pay for it (clause 1 of article 769 of the Civil Code).
When performing a labor function under an employment contract, it is quite difficult to single out the individual final result of the worker's work. Thus, the result of the work of an accountant, economist, manager, etc. in the performance of their labor duties, as a rule, is expressed as a result of the work of a department, shop, etc. generally.
In this regard, the labor function of an employee, as a rule, is not aimed at achieving any final result. Although in the process of its implementation, the achievement of certain specific results is possible. However, the achievement of one or another specific result in the process of performing the labor function is not the only purpose of the employment contract and does not terminate its operation in connection with the achievement of this result. This circumstance fully applies to such an element of the labor function as a specific type of assigned work.
The performance of a labor function with subordination to the rules of the internal labor schedule is the second most important element that reflects the specifics of an employment contract.
Unlike an employment contract, according to which the employee is obliged to obey the rules of internal labor regulations (observe the working hours, technological discipline, accurately and timely fulfill the orders of the employer, etc.), the relations arising from civil law contracts presuppose the autonomy of the will of the contractor. So, for example, under a work contract, unless otherwise provided by the contract, the contractor independently determines the methods for fulfilling the customer's task (clause 3 of article 703 of the Civil Code).
provided by Art. 56 of the Labor Code of the Russian Federation, the obligation of the employer to provide the employee with working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, also distinguishes an employment contract from related civil law contracts, according to which performers of work not only independently determine the ways of its implementation, but also, as a rule, perform it from their own materials, with their own forces and means.
Unlike an employment contract, under which the employer undertakes to fully and timely pay wages to the employee at least every half a month, under civil law contracts, payment is made at the end of work for its final result. The salary of each employee depends on his qualifications, the complexity of the work performed, the quantity and quality of labor expended. It is determined on the basis of predetermined wage systems, the size of the tariff rate, salary and different kind payments (Articles 132, 135 of the Labor Code of the Russian Federation). The result of work under a civil law contract is paid in accordance with the price stipulated by the contract (Articles 711, 774, 781, 972 of the Civil Code of the Russian Federation).
The difference between an employment contract and civil law contracts related to the use of labor is of great practical importance. By concluding an employment contract, a citizen is subject to labor legislation. He must be provided with appropriate social guarantees. Persons working under civil law contracts do not enjoy such guarantees. At the same time, it should be borne in mind that in cases where the court has established that a civil law contract actually regulates labor relations between an employee and an employer, the provisions of labor legislation and other acts containing labor law norms are applied to such relations (Art. 11 of the Labor Code of the Russian Federation).
Thus, the distinctive specific features of the employment contract are the following:
1) its subject is the personal performance of a labor function;
2) performance of work of a certain kind;
3) subordination of an employee in the process of performing a labor function to the rules of internal labor regulations;
4) remuneration according to pre-established norms, but not lower than the guaranteed minimum established at the federal level.
The foregoing allows us to formulate the main differences between an employment contract and a civil law contract according to the following criteria:
1. A civil law contract combines various types of contractual relations (purchase and sale, contracts, etc.). The employment contract is a single concept that reflects all the elements of relations regarding the use of labor force.
2. The difference in the mechanism of regulation of emerging legal relations. In one case, labor relations are regulated by labor law; the other is civil law.
3. Under an employment contract, an employee performs work in a certain specialty, qualification, position, profession. He is obliged to carry out any tasks of the administration related to his labor function in the specialty specified in the employment contract. Under a work contract or assignment, a citizen performs only individually specific work entrusted to him by the customer.
4. Under the employment contract, the employee is subject to the rules internal regulations, working hours. The contractor, fulfilling an individual labor order, does not obey the schedule, but works at a convenient time for himself, organizes work himself, ensures its safety, and is responsible for accidental death or damage to the subject of the contract.
5. Under an employment contract, an employee is obliged to perform a certain measure of labor within a certain period of time. For example, a pieceworker must complete a daily work rate, and an employee or time worker must work a set number of hours. The contractor is bound only by the deadline, the moment of transfer of materialized labor to the customer.
6. An employment contract is recorded in a work book, but a civil law contract is not.
employment contract legal work
An employment contract is a bilateral agreement. The parties to an employment contract are the employer and the employee. According to Art. 20 of the Labor Code of the Russian Federation, an employee is an individual who has entered into an employment relationship with an employer. Persons who have reached the age of 16 have the right to enter into labor relations (conclude labor contracts) with employers, and in the cases and in the manner established by the Labor Code, also persons who have not reached the specified age (Article 63 of the Labor Code of the Russian Federation).
An employer is an individual or a legal entity (organization) that has entered into an employment relationship with an employee. In cases provided for by federal laws, another entity entitled to conclude employment contracts (part 4 of article 20 of the Labor Code) may act as an employer. Because Art. 20 of the Labor Code, it is the legal entity that names the employer, then a branch or representative office of a legal entity cannot be recognized as an employer, despite the fact that they are its separate divisions and are located outside the location of the legal entity.
Employers - individuals in accordance with Art. 20 TCs are recognized:
individuals duly registered as individual entrepreneurs and carrying out entrepreneurial activity without formation of a legal entity;
private notaries, lawyers who have established law offices, and other persons whose professional activity in accordance with federal laws is subject to state registration and (or) licensing, entered into labor relations with employees in order to carry out the specified activities. These individual employers are also referred to as individual entrepreneurs. They bear to the employees who have entered into labor relations with them all the duties that the Labor Code imposes on employers - individual entrepreneurs. The implementation by them of the specified activity in violation of the requirements of federal laws without state registration and (or) licensing does not relieve them of the obligations of the employer;
individuals who enter into an employment relationship with employees for the purposes of personal service and household assistance. They are called employers - individuals who are not individual entrepreneurs. Individuals have the right to act as employers if they have reached the age of 18, provided that they have full civil capacity. Persons who have not reached the specified age may act as employers if, in cases provided for by law, they have acquired full legal capacity.
Civil capacity is the ability of a citizen to acquire and exercise civil rights create civic obligations for themselves and fulfill them. In full, it arises with the onset of adulthood, i.e. upon reaching the age of 18 (Article 21 of the Civil Code).
Individuals with independent income who have reached the age of 18, but limited by the court in their legal capacity, have the right, with the written consent of the trustees, to conclude employment contracts with employees for the purpose of personal service and assistance with housekeeping. A citizen may be limited in legal capacity by a court in the manner prescribed by civil procedural legislation, if, due to the abuse of alcohol or drugs, he puts his family in a difficult situation. financial situation. Guardianship is established over him (Article 30 of the Civil Code).
On behalf of individuals with independent income who have reached the age of 18, but recognized by the court as legally incompetent, their guardians may conclude employment contracts with employees for the purpose of personal service to these individuals and assistance to them in housekeeping. Minors aged 14 to 18, with the exception of minors who have acquired civil capacity in full, may enter into employment contracts with employees if they have own earnings, scholarships, other income and with the written consent of their legal representatives (parents, guardians, trustees).
Each employee, by signing an employment contract, assumes certain obligations:
· conscientiously fulfill their labor duties assigned to him by the employment contract;
Comply with the internal labor regulations of the organization;
observe labor discipline;
to comply with the established labor standards;
Comply with labor protection and labor safety requirements;
take care of the property of the employer and other employees;
immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the property of the employer.
· Laws and other normative legal acts impose some general additional obligations on employees of certain categories related to the specifics of the work they perform.
Thus, the institution of an employment contract is the main legal form for implementing the constitutional principle of freedom of labor of a citizen (Part 1, Article 37 of the Constitution of the Russian Federation). Having concluded an employment contract, a citizen becomes an employee. The employer, concluding an employment contract, gets the opportunity to select the workers he needs. The legal fact of concluding an employment contract entails the emergence of mutual rights and obligations for the employee and the employer.
ChapterII. The procedure for concluding an employment contract
2.1 Conditions for concluding an employment contract
An employment contract is concluded between the employee and the employer through direct negotiations. The parties are free to choose a partner and determine (within the limits established by law) the terms of the employment contract. However, if the employee is absolutely free to choose an employer, then the employer can only establish such criteria for the selection of applicants as the level of qualification, work experience, business qualities, as well as additional skills necessary to perform the job function (knowledge foreign language, possession related profession etc.). It is not allowed to establish any restrictions or advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, social and official position, place of residence, as well as other circumstances not related to business qualities (Article 64 of the Labor Code of the Russian Federation). The Labor Code establishes a direct rule prohibiting women from refusing to conclude an employment contract for reasons related to pregnancy or the presence of children.
It is forbidden to refuse to conclude an employment contract to an employee invited in writing by way of transfer from another organization within one month from the date of dismissal from the previous place of work. If such an employee, within a month after his dismissal from his previous place of work, did not express a desire to conclude an employment contract with the organization that invited him, the latter has the right to refuse him to conclude an employment contract.
Thus, the Labor Code recognizes as unreasonable any refusal to conclude an employment contract if it is not based on an assessment of the business qualities of the person entering the job.
An exception to the general rule prohibiting refusal to conclude an employment contract due to circumstances not related to the business qualities of an employee are cases expressly provided for by law. So, for example, based on the special requirements that apply to persons holding public office, Art. 21 of the Law on the Fundamentals of Civil Service prohibits, as a general rule, the admission to the civil service of Russian citizens who have the citizenship of a foreign state. A citizen who refuses to go through the procedure for obtaining access to information constituting a state secret cannot be accepted into the public service.
When refusing to conclude an employment contract, the employer is obliged to explain to the person who applied to him the specific reason for the refusal, in particular, indicate that he does not have those business qualities that are necessary to perform the job for which he claims. At the request of this person, the reason for refusal must be stated in writing. Considering the refusal to conclude an employment contract unreasonable, any citizen has the right to appeal it in court.
2.2 Documents required for concluding an employment contract
When concluding an employment contract, a citizen presents to the employer documents, the list of which is provided for in Art. 65 of the Labor Code:
a passport or other identity document;
a work book, except for cases when an employment contract is concluded for the first time or an employee goes to work on a part-time basis;
insurance certificate of state pension insurance;
documents of military registration - for those liable for military service and persons subject to conscription for military service;
a document on education, qualifications or the availability of special knowledge - when applying for a job that requires special knowledge or special training.
In some cases, taking into account the specifics of the work of the Labor Code of the Russian Federation, other federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation, it may be necessary to present additional documents when concluding an employment contract.
Today, the work book remains the main document on the labor activity and work experience of employees. According to the entries in the work book, a general, special and continuous experience, with which laws, other regulatory legal acts associate the possibility of exercising certain rights, as well as the provision of certain benefits and advantages. The employer is obliged to keep work books for all employees who have worked in the organization for more than five days and for whom work in this organization is the main one.
Records on the name of the job or position for which the employee is hired are made in accordance with the employment contract, and records on the reasons for termination of the employment contract are made in accordance with the wording of the Labor Code and with reference to the relevant article and paragraph. Information about the penalties applied to the employee should not be recorded in the work book, except for the case when dismissal is a disciplinary sanction.
2.3 Form of conclusion of an employment contract
According to Art. 67 of the Labor Code of the Russian Federation, an employment contract is concluded in writing. This means that the employee and the employer draw up a special document - the contract, which reflects the names of the parties who entered into the employment contract, and all its conditions stipulated by the parties. The contract is drawn up in two copies, each of which is certified by the signature of the employee and the head of the organization (employer). One copy of the employment contract is transferred to the employee, and the other is kept by the employer.
A written form of an employment contract is required both at the main place of work and when applying for a part-time job, even if it is performed in the same organization as the main job.
Responsibility for compliance with the procedure for concluding an employment contract lies with the head of the organization. The employee does not bear any responsibility for the fact that the employment contract is not drawn up with him in writing or is not properly executed, or an order for his admission to work is not issued.
In order to avoid unfavorable consequences for the employee caused by a violation of the procedure for concluding an employment contract, Part 2 of Article 67 of the Labor Code of the Russian Federation provides that an employment contract that is not properly executed is considered concluded if the employee actually started work with the knowledge or on behalf of the employer or his representative.
2.4 Entry into force of the employment contract
The concepts of "entry into force of an employment contract" and "commencement of work" are different. The entry into force of the contract means that the parties have assumed mutual obligations under the contract by signing it. However, the beginning of the implementation of these obligations does not always coincide with the moment of signing the contract.
The entry into force of an employment contract means that from that moment on, its parties acquire the rights and incur obligations under Art. Art. 21, 22 TK. In accordance with Part 1 of Art. 61, an employment contract is considered to have entered into force, as a general rule, from the date of its signing by both parties - the employee and the employer. A law or other regulatory legal act may determine a different moment for the entry into force of an employment contract.
The parties have the right to determine a different term for the entry into force of the employment contract. For example, after a week or a month from the date of its signing. If the employment contract with the employee was not properly executed, but the employee actually started work with the knowledge or on behalf of the employer or his representative, the labor contract is considered to have entered into force from the day the employee was actually admitted to work.
In cases where, by agreement between the employee and the employer, the term for the entry into force of the employment contract does not coincide with the day of its signing, the contract must indicate the exact date the signed employment contract enters into force, i.e. day, month and year. When concluding an employment contract, the parties determine in it the day from which the employee is obliged to start performing his labor duties, i.e. indicate the specific day, month and year.
If the day of commencement of work at the conclusion of the employment contract is not defined, then the employee must start work on the next day after the entry into force of the employment contract (for example, if the employment contract was signed by the parties on March 1, 2009, then the employee must start work on March 2, 2009 .).
In cases where an employee who has concluded an employment contract has not started work on time (on the day the work begins), the employer has the right to cancel the employment contract. At the same time, he is not obliged to find out the reason why the employee did not come to work. In practice, the employer has the right to issue an order to cancel the employment contract the very next day after the day on which the employee was supposed to start work, but did not start. However, he can do this at a later date if the employee did not go to work.
The employer does not bear any obligations to the employee under an employment contract recognized as canceled, with the exception of obligations related to the provision of compulsory social insurance. Cancellation of the employment contract, as provided for in Part 4 of Art. 61 of the Labor Code of the Russian Federation, does not deprive the employee of the right to receive compulsory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation. Cancellation of an employment contract cannot serve as an obstacle to the conclusion of a new employment contract if the parties subsequently come to an agreement on the need to enter into labor relations.
Thus, an employment contract is concluded between the employee and the employer, and, based on the fact that the employer, when concluding an employment contract, must have the necessary information about both the identity of the applicant and his business qualities, a list of mandatory documents that the applicant for work presents to the employer has been determined. The employment contract is concluded in writing. The entry into force of the contract means that the parties have assumed mutual obligations under the contract by signing it. However, the beginning of the implementation of these obligations does not always coincide with the moment of signing the contract. In some cases, the employee starts work without signing the contract. In such cases, the contract comes into force from the day of its actual admission to work with the knowledge or on behalf of the employer or his representative, who is obliged to draw up a written employment contract with him within 3 days.
ChapterIII. Contents of the employment contract
Federal Law No. 90-FZ of June 30, 2006 introduced Art. 57 of the Labor Code of the Russian Federation significant changes and additions. First of all, it should be noted that it provides additional information and conditions to be included in the employment contract.
In accordance with Part 1 of Art. 57 of the Labor Code of the Russian Federation, information about the employee and the employer is indicated in the employment contract.
The employee, as a party to the employment contract, indicates in the contract the last name, first name and patronymic in accordance with the passport or other document proving his identity. The new version of the commented norm provides for the need to indicate in the employment contract information about the identity documents of the employee themselves (the name of the document, the authority that issued this document, the number of the document and the date of its issue). The employment contract also indicates the postal address at which the employee is registered. If this address does not match the place of actual residence of the employee, then the postal address of his actual residence is also indicated.
Information about the employer includes its full name, containing an indication of the legal form, location and postal address of the organization.
According to paragraph 2 of Art. 54 of the Civil Code, the location of a legal entity is determined by the place of its state registration. State registration legal entity is carried out at the location of its permanent executive body, and in the absence of a permanent executive body - another body or person entitled to act on behalf of the legal entity without a power of attorney. The postal address of the organization determines its actual territorial location, i.e. postcode, name of the city, town, street name and house (building) number.
Among the information about the employer to be included in the employment contract (with the exception of employers - individuals who are not individual entrepreneurs), the new version of the commented article also includes the identification number of the taxpayer. The taxpayer identification number (TIN) is assigned by the tax authority at the location when registering the organization upon its creation, incl. through reorganization.
In accordance with the new edition of Art. 57, the employment contract must also contain information about the representative of the employer who signed the employment contract (last name, first name, patronymic of the head of the organization (director, CEO) or another person authorized to represent the employer in labor relations), and the basis by virtue of which he is vested with the relevant powers (constituent documents of a legal entity (organization), local normative act, job description, power of attorney, etc.).
The employment contract also indicates the place and date of its conclusion.
If an individual acts as an employer, the employment contract must indicate his last name, full name and patronymic in accordance with the passport or other identity document, information about these documents themselves (document name, authority that issued this document, document number and date of issue), as well as the home (postal) address of the employer - an individual.
All stipulated by Part 1 of Art. 57 information about the employee and the employer must be included in the content of the employment contract. At the same time, it should be borne in mind that, according to part 3 of the commented article, the absence in the employment contract of one or another information from among the information to be included in the employment contract is not in itself a basis for terminating the employment contract or recognizing it as not concluded. If at the conclusion of the employment contract any of this information was not included in it, then it must be supplemented with the missing information. Missing information is entered directly into the text of the employment contract by the employer on the basis of relevant documents.
Part 2 Art. 57 provides for the conditions that are mandatory for inclusion in an employment contract. In the previous version, these conditions were called essential. Replacing the term "essential" conditions with "mandatory" ones is quite legitimate, because the term "essential" in relation to all the conditions contained in Part 1 of Art. 57, did not correspond to the ideas that have developed in legal science about the concept of "essential terms of the contract". They recognize the conditions necessary and sufficient for the contract to be considered concluded. Such conditions from among the conditions provided for by the commented article, with good reason, can only be attributed to such as place of work, labor function and date of commencement of work. These conditions are not only mandatory, but also necessary conditions employment contract, i.e. such conditions, without which the employment contract cannot be considered concluded.
As for the other "mandatory conditions", their scope depends solely on the purpose for which the relevant rule is adopted. The conditions of part 2 of the commented article include among the mandatory conditions for inclusion in the employment contract:
1) place of work, which is understood as a specific organization - a legal entity that has its own name. If an employee is hired by a branch or representative office of a legal entity, or another separate structural subdivision of the organization located in another locality, the employment contract shall indicate as the own name of the branch or representative office (other separate structural unit), its postal address (name of the settlement, name street, building number) and the full name of the legal entity whose structural subdivision is a branch, representative office or other separate structural subdivision located in another locality;
2) the labor function of the employee, which consists in performing work in the relevant position in accordance with the staffing table or in a certain profession or specialty, indicating qualifications, or in performing a specific type of work assigned to the employee. The law does not say anything about what should be understood as a specific type of work. Obviously, we are talking about work that does not fit (does not fit) into the content of work in a particular position, profession or specialty. In this regard, a specific type of work entrusted to an employee may constitute the content of the labor function both in itself and along with work in a particular position, profession or specialty.
A position is an established set of duties and rights corresponding to them, which determines the place and role of an employee in an organization.
The law obliges the name of the position to be indicated in the employment contract in accordance with the organization's staffing table.
4) terms of remuneration, incl. the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments. They are determined in accordance with the profession, position, qualification category and qualification category employee;
5) the regime of working time and rest time, if in relation to the employee with whom the employment contract is concluded, it does not coincide with the general regime of work and rest in force for this employer. For example, part-time work or part-time work week, work only in one shift in a multi-shift mode of operation of the organization, division of the working day into parts, establishing a flexible work schedule, providing an additional break during the working day or a day off from work during the week, providing additional , in addition to what is provided for by law or other regulatory legal acts, the collective agreement (agreement), leave;
6) compensation for hard work and work with harmful and (or) dangerous working conditions, as well as characteristics of working conditions at the workplace, if the employee is hired in accordance with the employment contract in appropriate conditions;
7) conditions that determine, if necessary, the nature of the work (mobile, traveling, on the road, etc.;
8) a condition on a mandatory social insurance to which the employee is entitled in accordance with the Labor Code and other federal laws.
The list of mandatory conditions of the employment contract, provided for in Part 2 of Art. 57 of the Labor Code of the Russian Federation, is not exhaustive. Legislation and other normative legal acts containing labor law norms may provide for other conditions as mandatory conditions of an employment contract.
Among the additional conditions that the parties may include in the employment contract at their discretion, Part 4 of Art. 57 of the Labor Code of the Russian Federation includes the following:
1) about specifying the place of work (for example, about a specific structural unit of the organization and its location) or about a specific workplace (for example, about a specific mechanism, unit);
2) about the test, indicating the specific period of the test;
3) on non-disclosure of legally protected secrets (state, official, commercial and other). The condition on non-disclosure of state, official, commercial and other secrets protected by law may be provided for in an employment contract only with such an employee to whom information constituting such a secret becomes known in connection with the performance of his labor function. In this regard, the employment contract or an annex to it must clearly indicate what specific information containing state, official, commercial or other legally protected secrets is entrusted to this employee;
4) on the obligation of the employee to work after training for at least the period established by the contract. This condition may be included in an employment contract only if the same contract, an annex to it or a separate special contract contain a condition on the employer's obligation to pay for the employee's training. At the same time, it does not matter where the employee will be trained - in a special educational institution, in another organization or directly in the organization with which the employment contract is concluded;
5) among the possible additional conditions of the employment contract there are also such conditions as additional insurance of the employee and improvement of the social and living conditions of the employee himself and his family members. Such conditions, in particular, can be: voluntary medical or pension insurance, provision of an apartment, dacha, provision of vouchers to rest houses and sanatoriums, etc.;
6) a slightly different version is provided for by the Federal Law of June 30, 2006 N 90-FZ and in relation to such a condition as the rights and obligations of the employee and employer. In accordance with it, in the employment contract, the rights and obligations of the employee and the employer can be clarified in relation to the conditions of work of this employee, established by law on labor and other normative legal acts containing labor law norms. When agreeing on such conditions, it is necessary to take into account the general rule formulated in Part 2 of Art. 9 of the Labor Code: "Collective agreements, agreements, labor contracts cannot contain conditions that restrict the rights or reduce the level of guarantees for employees in comparison with those established by labor legislation and other regulatory legal acts containing labor law norms. If such conditions are included in a collective agreement, agreement or employment contract, they are not subject to application.
3.2 Duration of the employment contract
1. Federal Law No. 90-FZ of June 30, 2006 introduced Art. 58 of the Labor Code of the Russian Federation, a number of fundamental changes aimed at clarifying and concretizing the grounds on which a fixed-term employment contract is concluded with employees. In accordance with Part 1 of Art. 58 of the Labor Code of the Russian Federation, employment contracts, depending on their validity period, may be concluded for indefinite or definite period.
When concluding an employment contract for an indefinite period, the parties do not stipulate the duration of its validity at all. The treaty can only determine the date of its entry into force.
When concluding an employment contract for a fixed period, the parties must provide for a specific period of its validity (one, two, four years, etc.). Employment contracts concluded for a fixed period are called fixed-term employment contracts. Fixed-term employment contracts are concluded, as a rule, for a period not exceeding 5 years. An employment contract for a period of more than 5 years may be concluded only in cases expressly specified by the Code or other federal law.
Having fixed the possibility to conclude fixed-term employment contracts, Art. 58, however, limits it to certain cases.
According to part 2 of Art. 58 of the Labor Code of the Russian Federation, a fixed-term employment contract is concluded in cases where 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. New edition of Part 2 of Art. 58 of the Labor Code of the Russian Federation, while retaining the nature and conditions for performing work as a basis (criterion) for concluding a fixed-term employment contract, refers to the list of such works established by Part 1 of Art. 59 TC, i.e. practically determines which works, by their nature and conditions of performance, belong to the works for the performance of which a fixed-term employment contract is concluded. In other words, part 2 of Art. 58, referring to part 1 of Art. 59 of the Labor Code, actually reveals the content of such a legal category as "the nature of the work to be done or the conditions for its implementation." In this regard, when concluding a fixed-term employment contract, it is necessary to indicate one of these circumstances (reasons) corresponding to a particular situation.
If, at the conclusion of the employment contract, the parties did not agree on the term of its validity, the contract is considered concluded for an indefinite period. Since this is a general rule, it should also apply to cases where an employment contract is concluded in connection with the circumstances provided for in Part 1 of Art. 59 TK. Having concluded an employment contract with an employee for an indefinite period, the employer is not entitled to subsequently require him to conclude a fixed-term employment contract.
A fixed-term employment contract is considered a contract with an indefinite period even if it was originally concluded for a definite period without sufficient grounds, i.e. without taking into account the requirements established by the Code for the conclusion of fixed-term employment contracts, and this circumstance was established by the court (part 5 of article 58 of the Labor Code of the Russian Federation). For example, an employment contract concluded with an employee for a period of one year only on the grounds that the employee is registered at the place of residence only temporarily, should be recognized by the court as an agreement with an indefinite period. This rule is an important guarantee of protecting employees from unreasonable conclusion of a fixed-term employment contract with them.
In accordance with part 6 of article 58 of the Labor Code of the Russian Federation, it is prohibited to conclude fixed-term employment contracts in order to evade the granting of rights and guarantees provided for employees who have concluded an employment contract for an indefinite period.
Thus, it will be considered unlawful to conclude an employment contract with an employee for a period of one and a half years on the grounds that after this period the organization plans to reduce the number or staff of employees. By concluding a fixed-term employment contract in this case, the employer clearly avoids providing the employee with guarantees and compensations related to dismissal due to a reduction in the number or staff of employees, because. termination of the employment contract due to the expiration of its term does not entail the obligation to pay any compensation.
The expiration of the term of the employment contract, if the fixed-term employment contract is concluded lawfully, is the basis for its termination.
The initiative to terminate the employment contract due to the expiration of its term may come from both the employer and the employee himself. The employee does not have the right to insist on the continuation of the employment relationship if the employer has decided to terminate the employment contract due to the expiration of its term.
In the practice of concluding fixed-term employment contracts, the question arose whether the parties to an employment contract that has expired have the right to renew it for a new term or extend the term of this contract. The answer to this question must be negative, because The Labor Code does not provide for a general rule on renegotiation or extension of a fixed-term employment contract.
In this regard, in cases where, after the expiration of the employment contract, the parties want to continue the employment relationship for a certain period, they will have to terminate the employment contract, the term of which has expired, and conclude a new employment contract for the same or another period.
An exception to the general rule regarding the extension of the term of an employment contract or its renewal for a new term is the cases provided for in Art. Art. 261, 332 and 338 of the Labor Code.
In accordance with Art. 261 of the Labor Code of the Russian Federation, in the event of the expiration of a fixed-term employment contract during the pregnancy of a woman, the employer is obliged, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the validity of the employment contract until the end of pregnancy.
According to part 8, 9 of Art. 332 of the Labor Code, when an employee is elected through a competition to fill the position of a scientific and pedagogical worker previously occupied by him under a fixed-term employment contract, a new employment contract may not be concluded. In this case, the validity of a fixed-term employment contract with an employee is extended by agreement of the parties, concluded in writing, for a fixed period of not more than 5 years or for an indefinite period.
When transferred to the position of a scientific and pedagogical worker as a result of being elected by competition to the corresponding position, the term of the employment contract with the employee may be changed by agreement of the parties, concluded in writing, for a definite period of not more than 5 years or for an indefinite period.
According to Art. 338 of the Labor Code of the Russian Federation at the end of the term of the employment contract concluded with an employee sent to the representative office of the Russian Federation abroad, the employment contract may be renegotiated for a new term.
3.3
Fixed-term employment contract
Currently, of all forms of realization of the right of citizens to work, an employment contract should be recognized as the main form, since it is he who best meets the needs of market labor relations based on the hired nature of labor.
As mentioned, it is necessary to distinguish an employment contract from related contracts, the subject of which is human labor and related to the field of civil law. The correct distinction between an employment contract and related civil law contracts is of great practical importance, since labor rights and obligations established by labor legislation apply only to the person who has concluded an employment contract.
In this paper, the main provisions of the employment contract, its concepts, parties, content were considered. The main types of labor contract were studied and briefly characterized: fixed-term and open-ended labor contracts. The Labor Code of the Russian Federation provides for several types of employment contracts. In recent years, the practice of concluding fixed-term employment contracts with employees has been significantly expanding in the Russian Federation. This undermines the stability of labor relations, negatively affects the use of labor resources, deprives the employee of a number of essential rights and guarantees, sharply reduces his social protection. The labor legislation of Russia gives preference to employment contracts concluded for an indefinite period, i.е. agreements on permanent job until they are terminated on grounds strictly specified in the law.
Fixed-term employment contracts are allowed to be concluded only in cases specified by law: 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, as well as in cases directly provided for by law (Article 59 of the Labor Code of the Russian Federation). However, in practice, these restrictions are usually ignored by employers and they do not bear any responsibility in these cases.
Through the conclusion of an employment contract, the principle of freedom of labor is implemented. Every citizen of Russia has the right to freely dispose of his abilities to work, to choose the type of activity and profession. The Labor Code of the Russian Federation has a differentiated approach to determining the age at which the conclusion of an employment contract is allowed. The establishment of a minimum age for admission to work is an important safeguard for the health of adolescents.
Article 67 of the Labor Code of the Russian Federation provides for the conclusion of an employment contract in writing, and in two copies - one for each of the parties to the employment contract. Such an additional guarantee can be useful to the employee in the event of a labor dispute.
In order to conclude an employment contract, in cases specified by law, a mandatory medical examination of citizens is provided (Articles 69, 213, 266, 328 of the Labor Code of the Russian Federation), or the presence of a medical opinion on the absence of contraindications for work in certain conditions (Article 324 of the Labor Code of the Russian Federation) .
The Labor Code of the Russian Federation regulated in detail the procedure for applying for a job. So Art. 65 of the Labor Code of the Russian Federation provides for a list of documents presented by an employee when concluding an employment contract. The law prohibits requiring from a person applying for a job documents other than those provided for by the Labor Code of the Russian Federation, other federal laws, decrees of the President of the Russian Federation and Decrees of the Government of the Russian Federation. This means that no legal acts, except for acts of federal significance, can expand the list of documents required to conclude an employment contract. The work book, of the established form, is the main document on the work activity of the employee. The law defines the rules for maintaining work books, and they must be strictly observed.
The entry into force of an employment contract means that from that moment on, its parties acquire the rights and incur obligations under Art. Art. 21, 22 of the Labor Code of the Russian Federation. In accordance with Part 1 of Art. 61 of the Labor Code of the Russian Federation, an employment contract is considered to have entered into force, as a general rule, from the date of its signing by both parties - the employee and the employer. A law or other regulatory legal act may determine a different moment for the entry into force of an employment contract.
Thus, summing up, we can say that the employment contract performs the function of labor relations and is designed to individualize labor relations in relation to the personality of the employee and the specific employer. It is through an employment contract that a citizen-worker is usually included in the labor collective of an organization. From the moment an employment contract is concluded, a citizen becomes an employee of this organization and is fully covered by labor legislation and the effect of local legal acts of a regulatory nature adopted in this organization.
The legal significance of an employment contract serves as the basis for the existence and development of an employment relationship: a change by the parties in the terms of an employment contract usually means transfers and transfers at work, i.e. a change in labor relations, and termination of an employment contract means the termination of labor relations.
It should also be noted that, despite many shortcomings in the practice of applying an employment contract, today, of all forms of realization of the right of citizens to work, an employment contract should be recognized as the main form, since it is it that best meets the needs of labor relations in a market economy based on hired nature of labor. Given the negative consequences of the spread of fixed-term employment contracts, when improving legislation, the state needs to provide for measures to legally limit fixed-term employment contracts, to increase responsibility for the application of civil law contracts in labor relations.
List of used literature
1. The Constitution of the Russian Federation // M., “Legal Literature”, 2009.
2. Labor Code of the Russian Federation. – M.: Yurayt, 2009.
3. Civil Code of the Russian Federation. - M.: Omega-L, 2008.
4. Comments on the Labor Code of the Russian Federation. Guev A.N. – M.: Delo, 2007.
5. Commentary on the Labor Code of the Russian Federation. Orlovsky Yu.P. – M.: Infra-M, 2006.
6. Kiselev I.Ya. Labor law of Russia and foreign countries: textbook. – M.: Eksmo, 2007.
7. Smirnov O.P. Labor law: textbook. - M.: Lawyer, 2008.
8. Nikitinsky V.I., Korshunova T.Yu. Legal regulation
labor relations. // State and Law, 2006. No. 6.
9. Tolkunova V.N. Labor Law: Course of lectures - M., 2006.
Appendix
Employment contract SAMPLE
Limited Liability Company "__________", hereinafter referred to as the "Employer", represented by __________, acting on the basis of __________, on the one hand, and Mr./Ms. hereinafter, the "Employee", on the other hand, guided by the Labor Code of the Russian Federation, have concluded this employment contract as follows:
1. The Subject of the Agreement
1.1 This employment contract governs labor and other directly related relations between the Employee and the Employer.
1.2 Work under this contract is for the Employee
1.3 The Employee's Place of Work is _________________________
1.4 The date of commencement of work is "" ___________________ 200
1.5 The employee is hired as ___________________
1.6 Characteristics of working conditions and (or) conditions that determine, if necessary, the nature of work ________________________________
1.7 The employee reports directly to __________________
1.8 By order of the Employer, the Employee may be sent to business trips with reimbursement of expenses incurred in the amount established by law, and subject to the norms of labor legislation that determine guarantees for employees when they are sent on business trips.
1.9 At the conclusion of this agreement, the Employee is subject to a trial period of ______ calendar months, i.e. from "" _____________ 200 to "" _____________ 200. Periods of temporary disability of the Employee and other periods when he was actually absent from work are not included in the probationary period.
1.10 If the test result is unsatisfactory, the employment contract between the Employee and the Employer may be terminated in accordance with Article 71 of the Labor Code of the Russian Federation.
1.11 At the conclusion of the Agreement, the Employee submits to the Employer the documents stipulated by the legislation of the Russian Federation and guarantees that his education, level of professional qualifications, state of health are sufficient to perform the labor function for the specified position in the Agreement, and the documents and information that the Employee submits to the Company when registering his employment, are true and complete.
2. Rights and obligations of the Employee and the Employer
2.1 The employee has the right to:
Providing him with the work stipulated by this contract;
Amendment and termination of this agreement in the manner and on the terms established by the Labor Code of the Russian Federation, other federal laws;
A workplace that meets the conditions stipulated by state standards for the organization and safety of labor;
Timely and in full payment of wages in accordance with their qualifications, complexity of work, quantity and quality of work performed;
Rest provided by the establishment of working hours in accordance with the Labor Code of the Russian Federation, with the provision of days off in accordance with the Shift Schedule, annual basic paid holidays in accordance with the Agreement, the Internal Labor Regulations and the Vacation Schedule;
; - complete reliable information about working conditions and labor protection requirements at the workplace;
Vocational training, retraining and advanced training in the manner prescribed by the Labor Code of the Russian Federation, other federal laws;
Protection of their labor rights, freedoms and legitimate interests by all means not prohibited by law;
Resolution of individual labor disputes in the manner prescribed by the Labor Code of the Russian Federation, other federal laws;
Compulsory social insurance in cases provided for by law.
2.2 The employee is obliged:
Personally perform the function defined by this agreement;
Conscientiously fulfill their labor duties assigned to him by this agreement;
Fulfill orders and orders of persons authorized by the Employer, as well as comply with the requirements set forth in the local regulations of the Company
Comply with labor discipline and internal labor regulations of the Company;
Comply with labor protection requirements;
Constantly improve their qualifications and professional level;
Take care of the property of the Employer, including office equipment and equipment in his use, ensure the safety of the documentation entrusted to him, as well as the property of other employees;
Properly and properly use the equipment and office equipment transferred to him for work;
Not to disclose information related to the commercial secret of the Company, which has become known to him in connection with the performance of his activities, including personal data of employees;
During the period of being in an employment relationship with the Employer and within three years after dismissal from the Company, do not take actions aimed at illegally obtaining and / or illegal use and / or disclosure of information constituting trade secret which will be entrusted to the Employee or become known to him during the execution official duties. The list of information constituting a commercial secret is established by the Regulations on commercial secrets in the Company, which is an integral part of this Agreement (Appendix No. 1);
Immediately notify the Employer or immediate supervisor of a situation that poses a threat to the life and health of people, the property of the Employer, the threat of leakage of information constituting the trade secret of the Company.
2.3 The list of other labor rights and obligations of the Employee is determined by the legislation, other regulatory legal acts, job description ____________________________________
(Job title)
approved by order ________________________ "" ______________ 200, local regulations of the Employer that do not contradict the labor legislation of the Russian Federation.
2.4 The employer has the right:
Require the employee to fulfill his labor duties and respect the property of the employer and other employees, to comply with the internal labor regulations of the Company;
Bring the Employee to disciplinary and material liability in accordance with the procedure established by the Labor Code of the Russian Federation, other federal laws;
Terminate this agreement in the manner and on the terms established by the Labor Code of the Russian Federation;
Encourage the Employee for conscientious efficient work;
Issue local regulations.
2.5 The employer is obliged:
Provide the Employee with work in accordance with his specialty and qualifications in accordance with the terms of this agreement;
Ensure labor safety and conditions that meet the requirements of occupational health and safety;
Equip the workplace of the Employee in accordance with the established rules and requirements, provide him with equipment, office equipment, materials, documentation and other means necessary for the performance of his labor duties;
Provide workers with equal pay for work of equal value;
Pay in full the wages due to the Employee within the time limits established by the Labor Code of the Russian Federation, the internal labor regulations of the Company, as well as this agreement;
Carry out mandatory social insurance of the Employee in the manner prescribed by federal laws;
Compensate for harm caused to the Employee in connection with the performance of his labor duties in the manner and on the terms established by the Labor Code of the Russian Federation, federal laws and other regulatory legal acts;
Ensure the protection of the Employee's personal data from their misuse and loss; familiarize the Employee with the established procedure for processing his personal data, his rights and obligations in this area
Perform other duties stipulated by the Labor Code of the Russian Federation, federal laws and other legal acts containing labor law norms, this agreement.
2.6 The rights and obligations of the Employee and the Employer in the field of labor protection are determined by the rules of Section X of the Labor Code of the Russian Federation.
3. Terms of remuneration
3.1 The Employer undertakes to pay wages to the Employee on time and in full.
3.2 A simple time-based wage system is established for the employee. The amount of the official salary (tariff rate) of the employee is __________ (_____________________________)
(indicate the amount in numbers and words)
rubles per month (hour). The employee is paid in proportion to the hours worked.
3.3 Wages are paid twice a month on the following terms: advance payment no later than the 25th day of the current month, wages no later than the 10th day of each month following the one in which it was accrued by issuing cash or transferring it to the account specified by the Employee in the bank.
3.4 Payment of wages is made in cash in the currency of the Russian Federation.
3.5 Deductions from wages are made only in cases provided for by the Labor Code of the Russian Federation and other federal laws.
4. Mode of working time and rest time
4.1 The following duration of the working week is established for the employee:
4.3 The employee is set _______________________________
(specify special working hours)
4.4 The duration of the daily work (shift), the start and end time of work, the number and duration of breaks in work are established by the internal labor regulations of the Company, other local regulations.
4.5 Work on weekends and holidays is allowed in the manner and under the conditions established by the labor legislation of the Russian Federation.
4.6 The employee is provided with an annual basic paid leave with the preservation of the place of work and average earnings for 28 calendar days and an additional vacation of _________ calendar days.
4.7 The time, sequence and procedure for granting annual paid holidays is determined by the vacation schedule and the internal labor regulations of the Company.
4.8. The Employer has the right to recall the Employee, with his consent, from the annual paid leave in the manner prescribed by the Labor Code of the Russian Federation.
4.9. In the cases and in the manner provided for by the Labor Code of the Russian Federation, upon a written application of the Employee, he may be granted leave without pay. For personal reasons, unpaid leave is granted to the Employee only with the consent of the Employer. The duration of leave without pay is determined by agreement of the parties to this agreement.
5. Social insurance
5.1 The Employee is subject to compulsory social insurance at the expense of the Employer in cases provided for in the federal laws of the Russian Federation.
5.2. The employee is paid for all types of compulsory social insurance in the manner prescribed by the federal laws of the Russian Federation.
6. Validity and procedure for termination of the employment contract
6.1 This agreement is concluded:
_______________________
(grounds and reasons for concluding a fixed-term employment contract, article 59 of the Labor Code of the Russian Federation)
A fixed-term employment contract is terminated in the manner and on the terms determined by the Labor Code of the Russian Federation.
6.2 This employment contract comes into force from the moment it is signed by both parties. The employee is obliged to start performing labor duties on the day specified in clause 1.4 of this agreement.
6.3. If the Employee does not start work within the period established by the Agreement, without a valid reason within a week, then the Agreement is considered terminated by mutual agreement of the Parties from the date of its signing.
6.4 This agreement may be terminated by agreement of the parties at any time.
6.5. This agreement may be terminated at the initiative of the Employer in the manner and in accordance with the Labor Code of the Russian Federation.
6.6. This agreement may be terminated at the initiative of the Employee in the manner prescribed by Article 80 of the Labor Code of the Russian Federation.
6.7. By the day of his dismissal, the Employee must:
b) transfer, under the Transfer and Acceptance Certificate, to a person from among those authorized by the Employer, documents, materials and other property entrusted to the Employee in connection with the performance of his labor function under the Contract, or that was at the disposal of the Employee for other reasons;
c) bring the person authorized by the Employer up to date and send him in writing a list of cases that are under his control as of the date of dismissal of the Employee, which need to be completed in the near future and which cases were planned for the future.
7. Final provisions
7.1 All changes and additions to this agreement are valid if they are made in writing and signed by both parties.
7.2 The liability of the parties to this agreement is applied in accordance with the rules of Section XI of the Labor Code of the Russian Federation.
7.3 In the event of an individual labor dispute between the parties, it is subject to settlement through direct negotiations between the Employee and the Employer. If the dispute that has arisen between the parties is not resolved through negotiations, then it is resolved in the manner prescribed by the norms of Chapter 60, Section XIII of the Labor Code of the Russian Federation.
7.4 The relations of the parties not regulated by this agreement are subject to the labor law norms established by the Labor Code of the Russian Federation, other federal laws and other legal acts.
7.5 This agreement is made in two copies, having equal legal force, one for each of the parties.
Guev A.N. Commentary on the Labor Code of the Russian Federation. - M .: Delo, 2007, p. 64.
Send your good work in the knowledge base is simple. Use the form below
Students, graduate students, young scientists who use the knowledge base in their studies and work will be very grateful to you.
Hosted at http://www.allbest.ru/
Plan
Introduction
Chapter I. Employment contract: concept, features, parties
1.1 The concept and legal meaning of an employment contract
1.2 The difference between an employment contract and related civil law contracts
1.3 The employee and the employer as the main participants in the employment contract
Chapter II. The procedure for concluding an employment contract
2.1 Conditions for concluding an employment contract
2.2 Documents required for concluding an employment contract
2.3 Form of conclusion of an employment contract
2.4 Entry into force of the employment contract
Chapter III. Contents of the employment contract
3.2 Duration of the employment contract
3.3 Fixed term contract
Conclusion
List of used literature
Appendix
Introductionenie
The topic “Employment contract” is quite relevant and especially significant for every able-bodied citizen. An employment contract is one of the main institutions of labor law; in the labor code, it occupies a central place and includes legal norms that determine the parties and the procedure for concluding an employment contract, its content, the rules governing the procedure for registering employment, transfer, changing the essential conditions of labor law, suspension from work, as well as termination of labor relations.
An employment contract is a legal fact that gives rise to an employment relationship, and at the same time, the basis for its action in time. This provides an opportunity for the employee and the employer to take into account (coordinate) mutual interests not only at the time of the emergence of an employment relationship, but also during its existence. Changing the terms of an employment contract or terminating it, respectively, change or terminate the employment relationship. By concluding an employment contract, a citizen realizes the right granted to him by the Constitution of the Russian Federation to freely choose a job in accordance with his abilities, profession and qualifications. For the employer, the right to conclude employment contracts means the ability to select such employees who, in terms of their professional and business qualities, correspond to the work assigned, are the most qualified and experienced employees.
Having concluded an employment contract with an employer, a citizen becomes his employee and from that moment on he has the right to claim social guarantees and protection provided for by labor legislation. For its part, the employer acquires the right to require the employee to comply with the internal labor regulations, conscientious attitude to labor duties, fulfill the instructions and orders of the head on labor, the collective agreement (agreement) and the employment contract. If necessary, the employer has the right to apply disciplinary measures to the employee.
We can say that the employment contract is designed to regulate the relationship between the employee and the employer, to minimize disputes that may arise during the validity of the employment contract. It especially protects the employee's employment contract because, according to established practice, it is he who is the weakest party in this type of legal relationship.
Based on the fact that the basis of the employment contract are such principles as freedom of choice of profession, the right to work in accordance with the rules of safety and hygiene, the right to remuneration for work without any discrimination based on gender, nationality, social status, as well as the right to rest and protection from unemployment, an employment contract can be considered an element of the rule of law.
The meaning of the employment contract in the mechanism of legal regulation of labor is as follows:
1. An employment contract is a form of involvement in labor activity. It is through this agreement that a person's right to work is realized, which everyone freely chooses or freely agrees to (Article 2 of the Labor Code of the Russian Federation).
2. An employment contract is a legal fact that initiates an employment relationship (Article 15 of the Labor Code of the Russian Federation).
3. An employment contract is a litmus test that determines the presence or absence of an employment relationship in each specific case, i.e. the possibility of applying labor law (part 1 of article 11, part 1 of article 16 of the Labor Code of the Russian Federation).
4. An employment contract can be considered as one of the ways to regulate labor relations (Article 9 of the Labor Code of the Russian Federation).
5. An employment contract is one of the main institutions of the industry and science of labor law.
6. An employment contract is an important tool for personnel management Kiselev I.Ya. Labor law of Russia and foreign countries. - M.: Eksmo, 2006., p.119. .
An employment contract as a central institution of labor law is the subject of research by many scientists. Practically all specialists of labor law, in particular, such prominent scientists as: T.Yu. Korshunova, V.I. Mironov, Yu.P. Orlovsky, S.A. Panin, O.V. Smirnov, V.N. Skobelkin, V.N. Tolkunova, E.B. Khokhlov and many others.
object course research are public relations associated with the employment contract as an independent institution of labor law. Subject of study- Relevant labor laws. aim research is a comprehensive analysis of the employment contract, to achieve which the following tasks are set: 1) to clarify the concept of an employment contract and its differences from related civil law contracts; 2) consider the parties to the employment contract and their legal personality; 3) comprehensively analyze the content of the employment contract; 4) investigate the binding nature of the terms of the employment contract for its parties.
As general scientific research methodsdovaniya the methods of formal-logical and system-structural analysis were applied. According to its structure, the course work consists of an introduction, three chapters, a conclusion, a list of references.
Thus, having substantiated the significance and relevance of this topic, having determined and drawn up a plan for solving the tasks set, we can begin to disclose the problems that are the object of research.
1. Trwow contract. Concept, features, sides
1. 1 The concept and legal meaning of an employment contract
Employment contract - an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and by this agreement, to pay the employee wages in a timely manner and in full, and the employee undertakes to personally perform the labor function specified by this agreement, to comply with the internal labor regulations in force for this employer (part one as amended by Federal Law of 06.30. ) Labor Code of the Russian Federation. - M.: Yurayt, 2009, p.46. .
An employment contract is the main institution of labor law, reflecting the characteristic features of labor relations. An employment contract is a legal form of individual labor regulation in organizations, the basis for the development of labor relations Nikitinsky V.I., Korshunova T.Yu. Legal regulation of labor relations. // State and law. 2006. No. 6., S. 91.
In the science of labor law, an employment contract is considered in the following two aspects: as an agreement between an employee and an employer on labor at a given enterprise and as the most important institution of labor law that determines the norms of an employment contract: its conclusion, amendment and termination. An employment contract as an agreement on work is a legal fact that gives rise to an employment relationship of an employee, and a necessary prerequisite for the application of labor legislation to it and the emergence of other legal relations directly related to labor legislation.
An employment contract is a contract of a personal nature, since the employee personally carries out work in the general cooperation of labor and cannot do this through another person. Therefore, this agreement protects the identity of the employee, his health, honor and dignity. An employment contract, reflecting an individual way of regulating labor, may provide for additional labor benefits for an employee.
Federal Law of June 30, 2006 No. N 90-FZ did not make fundamental changes to the concept of an employment contract, formulated in Art. 56 of the Labor Code of the Russian Federation. Part 1 of the commented article is brought into line with the new edition of Art. 5 of the Labor Code of the Russian Federation, which clarifies the concepts of "labor legislation" and "other regulatory legal acts" that regulate labor relations and other relations directly related to them. It also contains some editorial changes that do not change the essence of the very concept of an employment contract.
Labor legislation (including labor protection legislation) in accordance with the new edition of Art. 5 of the Labor Code consists of the Labor Code of the Russian Federation, other federal laws and laws of the constituent entities of the Russian Federation containing labor law norms. Other normative legal acts containing labor law norms include: decrees of the President of the Russian Federation; Decrees of the Government of the Russian Federation; normative legal acts of federal executive bodies; normative legal acts of the executive authorities of the constituent entities of the Russian Federation; normative legal acts of local self-government bodies.
1. 2 The difference between an employment contract and related civil law contracts
Formulated in Art. 56 of the Labor Code of the Russian Federation, the concept of an employment contract makes it possible to single out its main elements (features) that make it possible to distinguish an employment contract from civil law contracts related to the use of labor - a work contract (Article 702 of the Civil Code); contracts for the performance of research work, experimental design and technical work (Article 769 of the Civil Code); contracts for the provision of services for a fee (Article 779 of the Civil Code); contract of agency (Article 971 of the Civil Code).
These elements include:
the specifics of the duties assumed by the employee under an employment contract, expressed in the performance of work in a certain position in accordance with the staff list, profession, specialty, indicating qualifications, i.e. the labor function stipulated by the agreement of the parties;
performance of work in compliance with internal labor regulations;
the obligation of the employer to provide the employee with working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, as well as to pay the employee’s wages Orlovsky Yu.P. Commentary on the Labor Code of the Russian Federation. - M.: Infra-M, 2006, p.46.
Unlike an employment contract concluded with an employee to perform a certain labor function, all these civil law contracts are concluded for the performance of a specific work, the purpose of which is to achieve its specific end result. Achievement of a specific result stipulated by the contract entails the termination of this contract. In other words, unlike an employment contract, the performance of certain work under a civil law contract is only a way to achieve the result stipulated by the contract.
For example, according to paragraph 1 of Art. 702 of the Civil Code, under a work contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and hand over its result to the customer, and the customer undertakes to accept the result of the work and pay for it. Under a contract for the performance of development and technological work, the contractor undertakes to develop a sample of a new product, design documentation for it or a new technology, and the customer undertakes to accept the work and pay for it (clause 1 of article 769 of the Civil Code).
When performing a labor function under an employment contract, it is quite difficult to single out the individual final result of the worker's work. Thus, the result of the work of an accountant, economist, manager, etc. in the performance of their labor duties, as a rule, is expressed as a result of the work of a department, shop, etc. generally.
In this regard, the labor function of an employee, as a rule, is not aimed at achieving any final result. Although in the process of its implementation, the achievement of certain specific results is possible. However, the achievement of one or another specific result in the process of performing the labor function is not the only purpose of the employment contract and does not terminate its operation in connection with the achievement of this result. This circumstance fully applies to such an element of the labor function as a specific type of assigned work.
The performance of a labor function with subordination to the rules of the internal labor schedule is the second most important element that reflects the specifics of an employment contract.
Unlike an employment contract, according to which the employee is obliged to obey the rules of internal labor regulations (observe the working hours, technological discipline, accurately and timely fulfill the orders of the employer, etc.), the relations arising from civil law contracts presuppose the autonomy of the will of the contractor. So, for example, under a work contract, unless otherwise provided by the contract, the contractor independently determines the methods for fulfilling the customer's task (clause 3 of article 703 of the Civil Code).
provided by Art. 56 of the Labor Code of the Russian Federation, the obligation of the employer to provide the employee with working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, also distinguishes an employment contract from related civil law contracts, according to which performers of work not only independently determine the ways of its implementation, but also, as a rule, perform it from their own materials, with their own forces and means.
Unlike an employment contract, under which the employer undertakes to fully and timely pay wages to the employee at least every half a month, under civil law contracts, payment is made at the end of work for its final result. The salary of each employee depends on his qualifications, the complexity of the work performed, the quantity and quality of labor expended. It is determined on the basis of pre-established wage systems, the size of the tariff rate, salary and various types of payments (Articles 132, 135 of the Labor Code of the Russian Federation). The result of work under a civil law contract is paid in accordance with the price stipulated by the contract (Articles 711, 774, 781, 972 of the Civil Code of the Russian Federation).
The difference between an employment contract and civil law contracts related to the use of labor is of great practical importance. By concluding an employment contract, a citizen is subject to labor legislation. He must be provided with appropriate social guarantees. Persons working under civil law contracts do not enjoy such guarantees. At the same time, it should be borne in mind that in cases where the court has established that a civil law contract actually regulates labor relations between an employee and an employer, the provisions of labor legislation and other acts containing labor law norms are applied to such relations (Art. 11 of the Labor Code of the Russian Federation).
Thus, the distinctive specific features of the employment contract are the following:
1) its subject is the personal performance of a labor function;
2) performance of work of a certain kind;
3) subordination of an employee in the process of performing a labor function to the rules of internal labor regulations;
4) remuneration according to pre-established norms, but not lower than the guaranteed minimum established at the federal level.
The foregoing allows us to formulate the main differences between an employment contract and a civil law contract according to the following criteria:
1. A civil law contract combines various types of contractual relations (purchase and sale, contracts, etc.). The employment contract is a single concept that reflects all the elements of relations regarding the use of labor force.
2. The difference in the mechanism of regulation of emerging legal relations. In one case, labor relations are regulated by labor law; the other is civil law.
3. Under an employment contract, an employee performs work in a certain specialty, qualification, position, profession. He is obliged to carry out any tasks of the administration related to his labor function in the specialty specified in the employment contract. Under a work contract or assignment, a citizen performs only individually specific work entrusted to him by the customer.
4. Under an employment contract, the employee is subject to the internal regulations, working hours. The contractor, fulfilling an individual labor order, does not obey the schedule, but works at a convenient time for himself, organizes work himself, ensures its safety, and is responsible for accidental death or damage to the subject of the contract.
5. Under an employment contract, an employee is obliged to perform a certain measure of labor within a certain period of time. For example, a pieceworker must complete a daily work rate, and an employee or time worker must work a set number of hours. The contractor is bound only by the deadline, the moment of transfer of materialized labor to the customer.
6. An employment contract is recorded in a work book, but a civil law contract is not.
1. 3 The employee and the employer as the main participants in the employment contractaboutra
employment contract legal work
An employment contract is a bilateral agreement.The parties to an employment contract are the employer and the employee. According to Art. 20 of the Labor Code of the Russian Federation, an employee is an individual who has entered into an employment relationship with an employer. Persons who have reached the age of 16 have the right to enter into labor relations (conclude labor contracts) with employers, and in the cases and in the manner established by the Labor Code, also persons who have not reached the specified age (Article 63 of the Labor Code of the Russian Federation).
An employer is an individual or a legal entity (organization) that has entered into an employment relationship with an employee. In cases provided for by federal laws, another entity entitled to conclude employment contracts (part 4 of article 20 of the Labor Code) may act as an employer. Because Art. 20 of the Labor Code as an employer names a legal entity, then a branch or representative office of a legal entity cannot be recognized as an employer, despite the fact that they are its separate divisions and located outside the location of the legal entity.
Employers - individuals in accordance with Art. 20 TCs are recognized:
individuals duly registered as individual entrepreneurs and carrying out entrepreneurial activities without forming a legal entity;
private notaries, lawyers who have established law offices, and other persons whose professional activities in accordance with federal laws are subject to state registration and (or) licensing, who have entered into labor relations with employees in order to carry out these activities. These individual employers are also referred to as individual entrepreneurs. They bear to the employees who have entered into labor relations with them all the duties that the Labor Code imposes on employers - individual entrepreneurs. The implementation by them of the specified activity in violation of the requirements of federal laws without state registration and (or) licensing does not relieve them of the obligations of the employer;
individuals who enter into an employment relationship with employees for the purposes of personal service and household assistance. They are called employers - individuals who are not individual entrepreneurs. Individuals have the right to act as employers if they have reached the age of 18, provided that they have full civil capacity. Persons who have not reached the specified age may act as employers if, in cases provided for by law, they have acquired full legal capacity.
Civil capacity is the ability of a citizen to acquire and exercise civil rights by his actions, create civil duties for himself and fulfill them. In full, it arises with the onset of adulthood, i.e. upon reaching the age of 18 (Article 21 of the Civil Code).
Individuals with independent income who have reached the age of 18, but limited by the court in their legal capacity, have the right, with the written consent of the trustees, to conclude employment contracts with employees for the purpose of personal service and assistance with housekeeping. A citizen may be limited in legal capacity by a court in accordance with the procedure established by civil procedural legislation, if, due to the abuse of alcohol or drugs, he puts his family in a difficult financial situation. Guardianship is established over him (Article 30 of the Civil Code).
On behalf of individuals with independent income who have reached the age of 18, but recognized by the court as legally incompetent, their guardians may conclude employment contracts with employees for the purpose of personal service to these individuals and assistance to them in housekeeping. Minors aged 14 to 18, with the exception of minors who have acquired civil capacity in full, may enter into employment contracts with employees if they have their own earnings, scholarships, other incomes and with the written consent of their legal representatives (parents, guardians, trustees) Orlovsky Yu.P. Commentary on the Labor Code of the Russian Federation. - M.: Infra-M, 2006, p.14. .
Each employee, by signing an employment contract, assumes certain obligations:
· conscientiously fulfill their labor duties assigned to him by the employment contract;
Comply with the internal labor regulations of the organization;
observe labor discipline;
to comply with the established labor standards;
Comply with labor protection and labor safety requirements;
take care of the property of the employer and other employees;
immediately inform the employer or immediate supervisor about the occurrence of a situation that poses a threat to the life and health of people, the safety of the property of the employer.
· Laws and other normative legal acts impose some general additional obligations on employees of certain categories, related to the specifics of the work they perform Orlovsky Yu.P. Commentary on the Labor Code of the Russian Federation. - M.: Infra-M, 2006, p.16.
Thus, the institution of an employment contract is the main legal form for implementing the constitutional principle of freedom of labor of a citizen (Part 1, Article 37 of the Constitution of the Russian Federation). Having concluded an employment contract, a citizen becomes an employee. The employer, concluding an employment contract, gets the opportunity to select the workers he needs. The legal fact of concluding an employment contract entails the emergence of mutual rights and obligations for the employee and the employer.
ChapterII. The procedure for concluding an employment contract
2. 1 Conditions of imprisonmentlabor contractsaboutra
An employment contract is concluded between the employee and the employer through direct negotiations. The parties are free to choose a partner and determine (within the limits established by law) the terms of the employment contract. However, if the employee is absolutely free to choose an employer, then the employer can only establish such criteria for the selection of applicants as the level of qualification, work experience, business qualities, as well as additional skills necessary to perform the labor function (knowledge of a foreign language, knowledge of a related profession, etc.). etc.). It is not allowed to establish any restrictions or advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, social and official status, place of residence, as well as other circumstances unrelated with business qualities (Article 64 of the Labor Code of the Russian Federation). The Labor Code establishes a direct rule prohibiting women from refusing to conclude an employment contract for reasons related to pregnancy or the presence of children Guev A.N. Commentary on the Labor Code of the Russian Federation. - M.: Delo, 2007, p. 64. .
It is forbidden to refuse to conclude an employment contract to an employee invited in writing by way of transfer from another organization within one month from the date of dismissal from the previous place of work. If such an employee, within a month after his dismissal from his previous place of work, did not express a desire to conclude an employment contract with the organization that invited him, the latter has the right to refuse him to conclude an employment contract.
Thus, the Labor Code recognizes as unreasonable any refusal to conclude an employment contract if it is not based on an assessment of the business qualities of the person entering the job.
An exception to the general rule prohibiting refusal to conclude an employment contract due to circumstances not related to the business qualities of an employee are cases expressly provided for by law. So, for example, based on the special requirements that apply to persons holding public office, Art. 21 of the Law on the Fundamentals of Civil Service prohibits, as a general rule, the admission to the civil service of Russian citizens who have the citizenship of a foreign state. A citizen who refuses to go through the procedure for obtaining access to information constituting a state secret cannot be accepted into the public service.
When refusing to conclude an employment contract, the employer is obliged to explain to the person who applied to him the specific reason for the refusal, in particular, indicate that he does not have those business qualities that are necessary to perform the job for which he claims. At the request of this person, the reason for refusal must be stated in writing. Considering the refusal to conclude an employment contract unreasonable, any citizen has the right to appeal it in court.
2. 2 Documents required for concluding an employment contract
When concluding an employment contract, a citizen presents to the employer documents, the list of which is provided for in Art. 65 of the Labor Code:
a passport or other identity document;
a work book, except for cases when an employment contract is concluded for the first time or an employee goes to work on a part-time basis;
insurance certificate of state pension insurance;
· Documents of military registration - for persons liable for military service and persons subject to conscription for military service;
· a document on education, qualifications or the availability of special knowledge - when applying for a job that requires special knowledge or special training Labor Code of the Russian Federation. - M.: Yurayt, 2009, p.52. .
In some cases, taking into account the specifics of the work of the Labor Code of the Russian Federation, other federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation, it may be necessary to present additional documents when concluding an employment contract.
Today, the work book remains the main document on the labor activity and work experience of employees. According to the entries in the work book, a general, special and continuous experience is established, with which laws, other regulatory legal acts associate the possibility of exercising certain rights, as well as the provision of certain benefits and benefits. The employer is obliged to keep work books for all employees who have worked in the organization for more than five days and for whom work in this organization is the main one.
Records on the name of the job or position for which the employee is hired are made in accordance with the employment contract, and records on the reasons for termination of the employment contract are made in accordance with the wording of the Labor Code and with reference to the relevant article and paragraph. Information about the penalties applied to the employee should not be recorded in the work book, except for the case when dismissal is a disciplinary sanction.
2. 3 Form of conclusion of an employment contract
According to Art. 67 of the Labor Code of the Russian Federation, an employment contract is concluded in writing. This means that the employee and the employer draw up a special document - the contract, which reflects the names of the parties who entered into the employment contract, and all its conditions stipulated by the parties. The contract is drawn up in two copies, each of which is certified by the signature of the employee and the head of the organization (employer). One copy of the employment contract is transferred to the employee, and the other is kept by the employer.
A written form of an employment contract is required both at the main place of work and when applying for a part-time job, even if it is performed in the same organization as the main job.
Responsibility for compliance with the procedure for concluding an employment contract lies with the head of the organization. The employee does not bear any responsibility for the fact that the employment contract is not drawn up with him in writing or is not properly executed, or an order for his admission to work is not issued.
In order to avoid unfavorable consequences for the employee caused by a violation of the procedure for concluding an employment contract, Part 2 of Article 67 of the Labor Code of the Russian Federation provides that an employment contract that is not properly executed is considered concluded if the employee actually started work with the knowledge or on behalf of the employer or his representative.
2. 4 Entry into force of the employment contract
The concepts of "entry into force of an employment contract" and "commencement of work" are different. The entry into force of the contract means that the parties have assumed mutual obligations under the contract by signing it. However, the beginning of the implementation of these obligations does not always coincide with the moment of signing the contract.
The entry into force of an employment contract means that from that moment on, its parties acquire the rights and incur obligations under Art. Art. 21, 22 TK. In accordance with Part 1 of Art. 61, an employment contract is considered to have entered into force, as a general rule, from the date of its signing by both parties - the employee and the employer. A law or other regulatory legal act may determine a different moment for the entry into force of an employment contract.
The parties have the right to determine a different term for the entry into force of the employment contract. For example, after a week or a month from the date of its signing. If the employment contract with the employee was not properly executed, but the employee actually started work with the knowledge or on behalf of the employer or his representative, the labor contract is considered to have entered into force from the day the employee was actually admitted to work.
In cases where, by agreement between the employee and the employer, the term for the entry into force of the employment contract does not coincide with the day of its signing, the contract must indicate the exact date the signed employment contract enters into force, i.e. day, month and year. When concluding an employment contract, the parties determine in it the day from which the employee is obliged to start performing his labor duties, i.e. indicate the specific day, month and year.
If the day of commencement of work at the conclusion of the employment contract is not defined, then the employee must start work on the next day after the entry into force of the employment contract (for example, if the employment contract was signed by the parties on March 1, 2009, then the employee must start work on March 2, 2009 .).
In cases where an employee who has concluded an employment contract has not started work on time (on the day the work begins), the employer has the right to cancel the employment contract. At the same time, he is not obliged to find out the reason why the employee did not come to work. In practice, the employer has the right to issue an order to cancel the employment contract the very next day after the day on which the employee was supposed to start work, but did not start. However, he can do this at a later date if the employee did not go to work.
The employer does not bear any obligations to the employee under an employment contract recognized as canceled, with the exception of obligations related to the provision of compulsory social insurance. Cancellation of the employment contract, as provided for in Part 4 of Art. 61 of the Labor Code of the Russian Federation, does not deprive the employee of the right to receive compulsory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation. Cancellation of an employment contract cannot serve as an obstacle to the conclusion of a new employment contract if the parties subsequently come to an agreement on the need to enter into labor relations.
Thus, an employment contract is concluded between the employee and the employer, and, based on the fact that the employer, when concluding an employment contract, must have the necessary information about both the identity of the applicant and his business qualities, a list of mandatory documents that the applicant for work presents to the employer has been determined. The employment contract is concluded in writing. The entry into force of the contract means that the parties have assumed mutual obligations under the contract by signing it. However, the beginning of the implementation of these obligations does not always coincide with the moment of signing the contract. In some cases, the employee starts work without signing the contract. In such cases, the contract comes into force from the day of its actual admission to work with the knowledge or on behalf of the employer or his representative, who is obliged to draw up a written employment contract with him within 3 days.
ChapterIII. Contents of the employment contract
3. 1 The content of the employment contract
Federal Law No. 90-FZ of June 30, 2006 introduced Art. 57 of the Labor Code of the Russian Federation significant changes and additions. First of all, it should be noted that it provides for additional information and conditions to be included in the employment contract.
In accordance with Part 1 of Art. 57 of the Labor Code of the Russian Federation, information about the employee and the employer is indicated in the employment contract.
The employee, as a party to the employment contract, indicates in the contract the last name, first name and patronymic in accordance with the passport or other document proving his identity. The new version of the commented norm provides for the need to indicate in the employment contract information about the identity documents of the employee themselves (the name of the document, the authority that issued this document, the number of the document and the date of its issue). The employment contract also indicates the postal address at which the employee is registered. If this address does not match the place of actual residence of the employee, then the postal address of his actual residence is also indicated.
Information about the employer includes its full name, containing an indication of the legal form, location and postal address of the organization.
According to paragraph 2 of Art. 54 of the Civil Code, the location of a legal entity is determined by the place of its state registration. State registration of a legal entity is carried out at the location of its permanent executive body, and in the absence of a permanent executive body - another body or person entitled to act on behalf of the legal entity without a power of attorney. The postal address of the organization determines its actual territorial location, i.e. postal code, name of the city, town, street name and house (building) number.
Among the information about the employer to be included in the employment contract (with the exception of employers - individuals who are not individual entrepreneurs), the new version of the commented article also includes the identification number of the taxpayer. The taxpayer identification number (TIN) is assigned by the tax authority at the location when registering the organization upon its creation, incl. through reorganization Orlovsky Yu.P. Commentary on the Labor Code of the Russian Federation. - M.: Infra-M, 2006, p.53.
In accordance with the new edition of Art. 57, the employment contract must also contain information about the representative of the employer who signed the employment contract (last name, first name, patronymic of the head of the organization (director, general director) or other person authorized to represent the employer in labor relations), and the basis by virtue of which he is endowed with the appropriate powers (constituent documents of a legal entity (organization), local normative act, job description, power of attorney, etc.).
The employment contract also indicates the place and date of its conclusion.
If an individual acts as an employer, the employment contract must indicate his last name, full name and patronymic in accordance with the passport or other identity document, information about these documents themselves (document name, authority that issued this document, document number and date of issue), as well as the home (postal) address of the employer - an individual.
All stipulated by Part 1 of Art. 57 information about the employee and the employer must be included in the content of the employment contract. At the same time, it should be borne in mind that, according to part 3 of the commented article, the absence in the employment contract of one or another information from among the information to be included in the employment contract is not in itself a basis for terminating the employment contract or recognizing it as not concluded. If at the conclusion of the employment contract any of this information was not included in it, then it must be supplemented with the missing information. Missing information is entered directly into the text of the employment contract by the employer on the basis of relevant documents.
Part 2 Art. 57 provides for the conditions that are mandatory for inclusion in an employment contract. In the previous version, these conditions were called essential. Replacing the term "essential" conditions with "mandatory" ones is quite legitimate, because the term "essential" in relation to all the conditions contained in Part 1 of Art. 57, did not correspond to the ideas that have developed in legal science about the concept of "essential terms of the contract". They recognize the conditions necessary and sufficient for the contract to be considered concluded. Such conditions from among the conditions provided for by the commented article, with good reason, can only be attributed to such as place of work, labor function and date of commencement of work. These conditions are not only obligatory, but also necessary conditions of the employment contract, i.e. such conditions, without which the employment contract cannot be considered concluded.
As for the other "mandatory conditions", their scope depends solely on the purpose for which the relevant rule is adopted. The conditions of part 2 of the commented article include among the mandatory conditions for inclusion in the employment contract:
1) place of work, which is understood as a specific organization - a legal entity that has its own name. If an employee is hired by a branch or representative office of a legal entity, or another separate structural subdivision of the organization located in another locality, the employment contract shall indicate as the own name of the branch or representative office (other separate structural unit), its postal address (name of the settlement, name street, building number) and the full name of the legal entity whose structural subdivision is a branch, representative office or other separate structural subdivision located in another locality;
2) the labor function of the employee, which consists in performing work in the relevant position in accordance with the staffing table or in a certain profession or specialty, indicating qualifications, or in performing a specific type of work assigned to the employee. The law does not say anything about what should be understood as a specific type of work. Obviously, we are talking about work that does not fit (does not fit) into the content of work in a particular position, profession or specialty. In this regard, a specific type of work entrusted to an employee may constitute the content of the labor function both in itself and along with work in a particular position, profession or specialty.
A position is an established set of duties and rights corresponding to them, which determines the place and role of an employee in an organization.
The law obliges the name of the position to be indicated in the employment contract in accordance with the organization's staffing table.
3) date of commencement of work, i.e. day, month and year from which the employee is obliged to start performing his labor duties. The start date of work may coincide with the date of conclusion of the employment contract, if the parties have agreed on this, or the parties may agree that the employee will start work later. In any case, the exact date of commencement of work is indicated in the employment contract. If a fixed-term employment contract is concluded, then it indicates the period of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with the Labor Code or other federal law;
4) terms of remuneration, incl. the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments. They are determined in accordance with the profession, position, qualification category and qualification category of the employee;
5) the regime of working time and rest time, if in relation to the employee with whom the employment contract is concluded, it does not coincide with the general regime of work and rest in force for this employer. For example, part-time work or part-time work week, work only in one shift in a multi-shift mode of operation of the organization, division of the working day into parts, establishing a flexible work schedule, providing an additional break during the working day or a day off from work during the week, providing additional , in addition to what is provided for by law or other regulatory legal acts, the collective agreement (agreement), leave;
6) compensation for hard work and work with harmful and (or) dangerous working conditions, as well as characteristics of working conditions at the workplace, if the employee is hired in accordance with the employment contract in appropriate conditions;
7) conditions that determine, if necessary, the nature of the work (mobile, traveling, on the road, etc.;
8) a condition on compulsory social insurance, to which the employee is entitled in accordance with the Labor Code and other federal laws.
The list of mandatory conditions of the employment contract, provided for in Part 2 of Art. 57 of the Labor Code of the Russian Federation, is not exhaustive. Legislation and other normative legal acts containing labor law norms may provide for other conditions as mandatory conditions of an employment contract.
Among the additional conditions that the parties may include in the employment contract at their discretion, Part 4 of Art. 57 of the Labor Code of the Russian Federation includes the following:
1) about specifying the place of work (for example, about a specific structural unit of the organization and its location) or about a specific workplace (for example, about a specific mechanism, unit);
2) about the test, indicating the specific period of the test;
3) on non-disclosure of legally protected secrets (state, official, commercial and other). The condition on non-disclosure of state, official, commercial and other secrets protected by law may be provided for in an employment contract only with such an employee to whom information constituting such a secret becomes known in connection with the performance of his labor function. In this regard, the employment contract or an annex to it must clearly indicate what specific information containing state, official, commercial or other legally protected secrets is entrusted to this employee;
4) on the obligation of the employee to work after training for at least the period established by the contract. This condition may be included in an employment contract only if the same contract, an annex to it or a separate special contract contain a condition on the employer's obligation to pay for the employee's training. At the same time, it does not matter where the employee will be trained - in a special educational institution, in another organization or directly in the organization with which the employment contract is concluded;
5) among the possible additional conditions of the employment contract there are also such conditions as additional insurance of the employee and improvement of the social and living conditions of the employee himself and his family members. Such conditions, in particular, can be: voluntary medical or pension insurance, provision of an apartment, dacha, provision of vouchers to rest houses and sanatoriums, etc.;
6) a slightly different version is provided for by the Federal Law of June 30, 2006 N 90-FZ and in relation to such a condition as the rights and obligations of the employee and employer. In accordance with it, in relation to the working conditions of this employee, the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms can be clarified in the employment contract. When agreeing on such conditions, it is necessary to take into account the general rule formulated in Part 2 of Art. 9 of the Labor Code: "Collective agreements, agreements, labor contracts cannot contain conditions that restrict the rights or reduce the level of guarantees for employees in comparison with those established by labor legislation and other regulatory legal acts containing labor law norms. If such conditions are included in a collective agreement, agreement or employment contract, they are not subject to application" Orlovsky Yu.P. Commentary on the Labor Code of the Russian Federation. - M.: Infra-M, 2006, p.56.
3. 2 The term of the employment contract
1. Federal Law No. 90-FZ of June 30, 2006 introduced Art. 58 of the Labor Code of the Russian Federation, a number of fundamental changes aimed at clarifying and concretizing the grounds on which a fixed-term employment contract is concluded with employees. In accordance with Part 1 of Art. 58 of the Labor Code of the Russian Federation, employment contracts, depending on their validity period, may be concluded for indefinite or definite period.
When concluding an employment contract for an indefinite period, the parties do not stipulate the duration of its validity at all. The treaty can only determine the date of its entry into force.
When concluding an employment contract for a fixed period, the parties must provide for a specific period of its validity (one, two, four years, etc.). Employment contracts concluded for a fixed period are called fixed-term employment contracts. Fixed-term employment contracts are concluded, as a rule, for a period not exceeding 5 years. An employment contract for a period of more than 5 years may be concluded only in cases expressly specified by the Code or other federal law.
Having fixed the possibility to conclude fixed-term employment contracts, Art. 58, however, limits it to certain cases.
According to part 2 of Art. 58 of the Labor Code of the Russian Federation, a fixed-term employment contract is concluded in cases where 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. New edition of Part 2 of Art. 58 of the Labor Code of the Russian Federation, while retaining the nature and conditions for performing work as a basis (criterion) for concluding a fixed-term employment contract, refers to the list of such works established by Part 1 of Art. 59 TC, i.e. practically determines which works, by their nature and conditions of performance, belong to the works for the performance of which a fixed-term employment contract is concluded. In other words, part 2 of Art. 58, referring to part 1 of Art. 59 of the Labor Code, actually reveals the content of such a legal category as "the nature of the work to be done or the conditions for its implementation." In this regard, when concluding a fixed-term employment contract, it is necessary to indicate one of these circumstances (reasons) corresponding to a particular situation.
If, at the conclusion of the employment contract, the parties did not agree on the term of its validity, the contract is considered concluded for an indefinite period. Since this is a general rule, it should also apply to cases where an employment contract is concluded in connection with the circumstances provided for in Part 1 of Art. 59 TK. Having concluded an employment contract with an employee for an indefinite period, the employer is not entitled to subsequently require him to conclude a fixed-term employment contract.
A fixed-term employment contract is considered a contract with an indefinite period even if it was originally concluded for a definite period without sufficient grounds, i.e. without taking into account the requirements established by the Code for the conclusion of fixed-term employment contracts, and this circumstance was established by the court (part 5 of article 58 of the Labor Code of the Russian Federation). For example, an employment contract concluded with an employee for a period of one year only on the grounds that the employee is registered at the place of residence only temporarily, should be recognized by the court as an agreement with an indefinite period. This rule is an important guarantee of protecting employees from unreasonable conclusion of a fixed-term employment contract with them.
In accordance with part 6 of article 58 of the Labor Code of the Russian Federation, it is prohibited to conclude fixed-term employment contracts in order to evade the granting of rights and guarantees provided for employees who have concluded an employment contract for an indefinite period.
Thus, it will be considered unlawful to conclude an employment contract with an employee for a period of one and a half years on the grounds that after this period the organization plans to reduce the number or staff of employees. By concluding a fixed-term employment contract in this case, the employer clearly avoids providing the employee with guarantees and compensations related to dismissal due to a reduction in the number or staff of employees, because. termination of the employment contract due to the expiration of its term does not entail the obligation to pay any compensation.
The expiration of the term of the employment contract, if the fixed-term employment contract is concluded lawfully, is the basis for its termination.
The initiative to terminate the employment contract due to the expiration of its term may come from both the employer and the employee himself. The employee does not have the right to insist on the continuation of the employment relationship if the employer has decided to terminate the employment contract due to the expiration of its term.
Similar Documents
The concept of an employment contract is the main institution of labor law, which occupies Labor Code central place and includes legal norms that define the concept and parties of an employment contract, its content, the procedure for concluding and entering into force.
abstract, added 10/18/2010
The concept and legal nature of an employment contract under the legislation of the Russian Federation. General procedure for concluding an employment contract. Grounds and procedure for terminating an employment contract. Transfer to another job. Definition and parties to an employment contract.
thesis, added 03/26/2011
The concept of an employment contract, the difference from related contracts of a civil law nature. Content, conditions and procedure for concluding an employment contract. Types of employment contracts. Fixed-term employment contract. Employment contract concluded for a fixed period.
test, added 08/08/2010
The concept, parties and content, types of employment contracts. The order of conclusion and amendment, approximate form labor contract. Legal issues of termination of an employment contract, grounds for termination of an employment contract for certain categories of employees.
thesis, added 01/08/2010
An employment contract (contract) as one of the main grounds for the emergence of labor relations between an employer and an employee. The concept and meaning, parties and content, the procedure for concluding an employment contract. Features of the recruitment process.
term paper, added 03/21/2012
The concept and meaning of an employment contract. The content of the employment contract. Types of employment contracts. Entry into force of the employment contract. General procedure for concluding an employment contract. Change and termination of the employment contract.
term paper, added 11/17/2004
Legal characteristics of the employment contract. The concept of an employment contract. Parties to an employment contract. Content and types of employment contract. The difference between an employment contract and related civil law contracts.
term paper, added 11/02/2004
The concept of an employment contract. Its differences from civil law contracts. Description of the terms of the employment contract. General and special order of its conclusion. Features of the work of certain categories of workers. Transfer to another job, dismissal of an employee.
term paper, added 11/13/2011
The concept of an employment contract, its difference from related civil law contracts related to labor. The content of the employment contract, its mandatory and additional conditions. Classification of employment contracts, their varieties and areas of use.
term paper, added 11/10/2010
Requirements for the procedure for concluding an employment contract. Minimum age for employment. The practice of replacing labor contracts with civil law ones. Working hours and rest time. The main types and conditions of additional employee insurance.
It might be useful to read:
- International craft competition;
- Types of parrots: photos, names;
- Do-it-yourself birdhouse made of wood: drawings, dimensions, materials, decor and installation What can a birdhouse be made of;
- How to make a birdhouse: from boards and logs for different birds What can a birdhouse be made of;
- Where does the black woodpecker live;
- Corella, a small talkative parrot;
- Diarrhea in a budgerigar: causes, treatment methods, reviews;
- life span of parrots;