Fixed-term employment contract: Labor Code of the Russian Federation. Fixed term contract What is a fixed term contract

An employment contract (TD) is the main document that is concluded between the employer and the employee. A fixed-term employment contract (STD) is signed when it is impossible to set an indefinite period for. The maximum term of STD in this case is five years. If the contract specifies a longer period, it is considered that the employee has been hired for a permanent job.

Termination of a fixed-term employment contract

A fixed-term employment contract is terminated upon expiration of its validity period. Including:

concluded for the duration of a certain work - upon its completion;
concluded for the duration of the performance of the duties of an absent employee - with his return;
concluded for the performance of seasonal work during a certain period (season) - at the end of this period (season).

Dismissal after the expiration of the employment contract

The employee must be notified in writing about the termination of the TD due to the expiration of its validity period at least three calendar days before the dismissal, except for cases when the period of validity of the TD concluded for the duration of the duties of the absent employee expires.

The original notice is handed to the employee personally, and on the copy of the notice, he must put a personal signature with a transcript, as well as indicate the date the notice was received. A copy of the document is filed in the personal file of the employee.

In case of refusal to read the notification, an appropriate act is drawn up.

Sample notice of termination of a fixed-term employment contract

Expiration of a fixed-term employment contract for the performance of work

The dismissal procedure after the expiration of the employment contract concluded for the duration of the performance of a certain work begins with the preparation of an act on the acceptance of work performed according to the STD. It is he who is the basis for termination.

To do this, you can use the act of a unified form No. T-73, approved by the Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1 "On approval of unified forms of primary accounting documentation for accounting for labor and its payment." However, this form is not mandatory. The parties may draw up an act in free form.

The act is drawn up in two identical copies. A copy of the employer is filed in the personal file of the employee. The expiration date of the STD will be the day following the date of issue of the act.

Sample certificate of acceptance of work performed under a fixed-term employment contract

Letter of resignation at the end of a fixed-term employment contract

Upon termination of the STD after the expiration of the validity period, the employee is dismissed under paragraph 2 of part 1 of Art. 77 of the Labor Code of the Russian Federation - due to the expiration of the TD. At the same time, an order is issued to terminate (terminate) the TD with the employee (dismissal). The unified form of such an order No. T-8 was approved by the Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1. The employee must be familiarized with the order (instruction) on dismissal. A copy is filed in the employee's personal file.

Entry in the workbook

The employer is obliged to issue it on the day of dismissal. The procedure for making an entry in it upon termination of the TD is prescribed in sec. 5 Instructions approved by the Decree of the Ministry of Labor of Russia dated 10.10.2003 N 69.

If the fixed-term employment contract has not expired

STD may be terminated before the expiration of its term on the grounds set forth in Article 77 of the Labor Code of the Russian Federation. The procedure is the same as for the termination of a trade agreement concluded for an indefinite period of time.

Extension of a fixed-term employment contract

If none of the parties demanded the termination of the STD due to the expiration of the period of its validity, and the employee continues to work after the expiration of the period of validity of the STD, he is considered to be imprisoned for an indefinite period. In this case, changes are made to the TD by concluding an additional agreement. In the workbook, on the contrary, no additional entries are made. This position is stated in the Letter of Rostrud dated November 20, 2006 No. 1904-6-1.

The employer must keep in mind that he is not entitled to demand the fulfillment of duties after the expiration of the TD validity period. If he has a desire to extend the TD, then it is necessary to offer to conclude an additional agreement to the contract. Otherwise, the employee, having worked the last working day, may not go to work, and this will not be considered absenteeism.

Leave and its compensation upon dismissal

The conclusion of an urgent TD does not change the obligation of the employer to provide annual basic paid leave of 28 calendar days while maintaining the place of employment and average earnings. In accordance with Article 127 of the Labor Code of the Russian Federation, upon dismissal, monetary compensation is paid for all unused vacations. Wherein:

Those employed in seasonal work are provided with paid leave at the rate of two working days for each month worked (Article 295 of the Labor Code of the Russian Federation).
Those who have concluded a TD for a period of up to two months are provided with paid vacations at the rate of two working days per month worked (Article 291 of the Labor Code of the Russian Federation).

Special cases

A special case is the dismissal of a pregnant woman after the expiration of the TD. Except as discussed below, it is not possible to terminate a pregnant woman after the expiration of the TD. The employer is obliged to extend the TD of the employee if she submits an appropriate application and a medical certificate confirming the pregnancy. The period of validity of the TD should be extended until the end of pregnancy, regardless of the reason for its termination.

The date of dismissal in this case will be:

if the employee has been granted maternity leave, the end date of this leave;
if such leave is not granted - within a week from the day when the employer learned about the end of the pregnancy.

Benefits for pregnancy and childbirth, when registering in the early stages of pregnancy and at the birth of a child, are calculated and paid in the usual manner. Parental leave is not granted.

The employer has the right to dismiss a pregnant woman after the expiration of the urgent TD, subject to the following conditions (part 3 of article 261 of the Labor Code of the Russian Federation):

an urgent TD is concluded for the duration of the performance of the duties of an absent employee;
the transfer of an employee with her consent to another job available to the employer and not contraindicated for her health reasons is impossible.

At the same time, the employer is obliged to offer the pregnant employee all the vacant positions he has in the given locality or work corresponding to her qualifications, as well as vacant lower positions or lower-paid work that the woman can perform taking into account her state of health.

Last modified: March 2020

The relationship between the employee and the administration of the enterprise must be formalized and confirmed by relevant documents. One of these is an employment contract, the preparation and conclusion of which is the responsibility of the authorities. But, the employer may offer the applicant to conclude or. Which one is more beneficial for the parties? Differences between a fixed-term and indefinite employment contract - what are they? Under what conditions can one type of agreement be concluded, and under what conditions can another type be concluded? We will try to answer all these questions in this article.

The basis of the document regulating the relationship between the administration of the enterprise and the employee is an employment contract, which must be concluded upon employment or within 3 days after the new employee actually begins to perform his job duties. It is the responsibility of the employer to ensure that the document is correctly drawn up and signed. If he breaks it, he will face penalties.

When can I conclude a fixed-term contract?

Labor legislation strictly regulates the circumstances under which the authorities must offer the new employee to conclude an employment contract with the enterprise, the validity of which is limited to a temporary period. These conditions are set out in Art. 59 of the Labor Code of the Russian Federation. These include:

temporary absence of an employee at his workplace. But on the condition that this workplace will be kept for him, in accordance with the current legislation. The most common case is maternity leave. For example, one worker went on maternity leave, another was temporarily taken in her place. When the maternity leave, she will return to her workplace, and the "replacement" can be fired or hired on a permanent basis;
seasonal and temporary work, the implementation of which will not take more than 2 months;
sending an employee abroad to perform work duties;
the need of the enterprise to expand, reconstruct or modernize equipment or working capacities, provided that these works will be carried out during the year;
hiring an employee for an enterprise that was originally created for specific purposes and for a specific period of time;
hiring a new employee to perform a specific task, while the deadline and the task itself must be specified in the "body" of the contract;
internship;
other cases prescribed in Art. 59 of the Labor Code of the Russian Federation.

If the agreement between the parties is concluded for an indefinite period, then the existence of specific circumstances is not required.

The main differences between a fixed-term and indefinite employment contract

Fixed-term and perpetual contracts differ from each other in several ways. It:

time period;
the procedure for reissuing and changing the type of agreement;
features of the granting of holidays and the appointment of a probationary period;
other options.

Time period

The main difference is the limitation of the validity period of the agreement in terms of time. The fixed-term contract should not only indicate the exact duration of its validity, but also the exact date of termination of the relationship. In this case, it is necessary to indicate the reason why the employer proposes to conclude just such a document, as well as the condition upon the occurrence of which it will be terminated. For example, "replacing a temporarily absent employee."

If a person is hired to perform a specific task or a certain amount of work, then this condition should also be indicated. Nonetheless, the term of the contract cannot exceed 5 years. If after the expiration of the period specified in the "body" of the agreement, the employee continues to perform his duties, then he is "automatically" hired on a permanent basis.

The procedure for reissuing and changing the type of agreement

Even if there is an agreement between the parties, an open-ended contract cannot be reissued into an urgent one. You can do it in reverse! But for this, the following conditions must be met:

the term of the agreement has expired, and the employee continues to carry out his labor activity at this enterprise;
the condition of urgency is no longer relevant, but the person continues to work.

You need to redraw the agreement and let the employee sign it.

Vacation and probation

This condition is relevant for those agreements, the validity period of which does not exceed 2 calendar months:

a test for employment cannot be established, according to Art. 70 of the Labor Code of the Russian Federation;
For each full month worked, 2 full days of vacation are provided. According to Art. 291 of the Labor Code of the Russian Federation, these days can be replaced by monetary compensation;
notice of termination of employment must be given 3 days prior to dismissal. According to Art. 292 of the Labor Code of the Russian Federation, this condition applies to both the employee and his superiors;
unless otherwise provided by a local act, a dismissing employee is not entitled to severance pay.

If the agreement is concluded for a period of more than 2 calendar months, then these conditions become irrelevant. An exception is the performance of seasonal work for up to six months.

Other differences

There are other differences between these types of agreements. In particular:

to conclude an agreement for a certain period of time, a clear justification of the reasons is necessary;
a fixed-term contract ensures the fulfillment of strictly defined labor tasks within a specified period of time;
the perpetual type of agreement ensures the constant implementation of all the work tasks of the employee, which are prescribed in his job description.

The employer must know that if he proposes to conclude an agreement limited in time to the employee, but there are no legal grounds for this, he may face penalties.

Summing up

The conclusion of a fixed-term employment contract guarantees a temporary worker decent wages, respect for his rights and interests, compliance with the work regime and the regime for providing periods for rest. The conclusion of such an agreement is not a reason for violating the basic norms of labor legislation.

In the practice of working with hired personnel, situations sometimes arise when the work of employees is needed not on an ongoing basis, but for some time. In this case, it is worth concluding a fixed-term employment contract with such employees. Unlike ordinary (termless), such contractual relations cannot last longer than the time specified by law.

Fixed-term contracts have their own nuances of conclusion, which should be observed by both parties in order to avoid misunderstandings, which will then have to be resolved in court. Let us analyze the grounds for formalizing such labor relations, their legal foundation, as well as the main points that employees and employers need to take into account.

Legislative justification for fixed-term contracts

The word "urgent" in the definition of this type of contract does not mean any additional speed of its execution, it does not come from "urgency", but from "term". This is how it is declared different from contracts that are concluded for an indefinite period.

In the usual form of employment contractual relations, the date of commencement of work is precisely known, and the time of separation and the reasons for dismissal cannot yet be determined.
But when the last condition is known to both parties, that is, both the employee and the employer know when they will terminate their cooperation agreement, it is advisable to formalize the relationship with a predetermined period - fixed-term employment contract.

The Labor Code of the Russian Federation calls an employment contract mandatory when formalizing the relationship "employee-employee" (Article 56 of the Labor Code of the Russian Federation), and the term is its essential condition. The options when an employer gives an employee temporary employment are defined in Art. 59 of the Labor Code of the Russian Federation. Their determining factor is an important circumstance: a fixed-term employment contract is lawful only when, for objective reasons, it is impossible to conclude an indefinite one.

NOTE! To conclude such an agreement, the will of the employer and even the consent of the employee is not enough; its execution must comply with the grounds given in the legislation. Otherwise, if you have to deal with the court, a fixed-term contract concluded on an illegitimate basis will be recognized as open-ended.

Attractiveness of fixed-term employment contracts

The party that benefits the most from a fixed-term rather than an open-ended contract is the employer. The reasons are obvious:

a temporary employee is more manageable;
"conscript" is easier to motivate, since the extension of cooperation with him directly depends on the leadership;
much easier to carry out the dismissal procedure;
the employee dismissed at the end of the term cannot challenge such dismissal;
in this way, you can get rid of any categories of employees, even the most socially protected.

For workers, as a rule, permanent employment is preferable, providing certain guarantees and confidence in their future. Domestic legislation and the International Labor Convention (ILO) adhere to the same position, seeking to minimize the number of workers employed on a temporary basis.

Features of a fixed-term employment contract

The determining factor in the choice in favor of the urgency of contractual relations is an important circumstance: a fixed-term employment contract is lawful only when, for objective reasons, it is impossible to conclude an open-ended one.

The reason for this must be indicated in the text of the contract.

The term of such an agreement cannot exceed 5 years. If the document does not specify specific terms or an event that terminates the contractual relationship, it will automatically be considered a contract with an indefinite period. Similarly, if more than five years is indicated.

Termination of a fixed-term contract must be indicated in the text. This is possible in two ways:

specifying a specific date when the contract will be terminated;
designation of the event, the occurrence of which terminates the fixed-term contract.

The approach of the final date does not mean an immediate cessation of work: the employee must be warned in writing about the upcoming dismissal in accordance with its expiration 3 days in advance. If this is not done, the dismissal can be challenged.

In the second case, advance notification is impossible, since the event that has occurred automatically terminates the fixed-term contract, as provided for by its terms. Most often, such an event is the entry to work of the main employee, instead of whom a temporary one was employed.

With whom you can conclude fixed-term employment contracts

Employers form such relationships with those employees whose nature of work does not make it possible to determine the duration of the working relationship, or, conversely, quite clearly marks their end. Such categories of personnel include, for example, the following:

seasonal workers;
employees hired to perform a specific type of work by a specific date;
employees who were sent to work abroad or to another branch of the organization;
specialists hired from outside to perform work not provided for by the main activity of the organization;
teachers who can work in the relevant position only for the duration of the competition;
replacing an employee on long-term sick leave or maternity leave, etc.

Transfer to a fixed-term employment contract from an indefinite

As a rule, employees work on an indefinite contract. However, sometimes there is a need to transfer to a fixed-term contract. This can be done, but the procedure must comply with all the rules.

Reasons for transferring to a fixed-term employment contract

It is possible to transfer an employee to a fixed-term contract only if there are sufficient grounds for this. If there are no such grounds, the agreement will be considered indefinite. The employer cannot draw up fixed-term agreements with the aim of deviating from providing employees with rights and guarantees. Consider the reasons why the employer transfers:

An employee is assigned to the place of a temporarily absent employee. The latter retains the place of work.
The employee is sent to work abroad temporarily.
The work is connected with the temporary expansion of production.
The employee has a disability.

That is, the transfer to a fixed-term contract is relevant for those cases when the status of an employee changes. For example, he had health restrictions.

Is it legal to transfer to a fixed-term contract?

The issue of the legality of transferring an employee to a fixed-term agreement is extremely controversial. If the employer initially issued the employee under an open-ended contract, he must ensure that the terms of this agreement are met. That is, the worker receives the right to work for an unlimited time.

The contract can only be based on the points established by the Labor Code of the Russian Federation.

For this reason, the transfer of an employee from an indefinite to a fixed-term contract is not legal. The employer cannot, for the purpose of transferring, simply enter into an additional agreement. The employee, if desired, can easily challenge this document.

Another significant mistake is the execution of a new agreement at a time when the previous agreement continues to operate. According to the law, if two documents are valid for an employee, the act with the most favorable conditions will be valid. In this case, the most advantageous would be an open-ended contract, as it provides a larger list of rights.

IMPORTANT! Many employers believe that entering into a new agreement automatically cancels the old agreement. However, this is a wrong position. In order for only one act to be valid, the old act must be legally repealed.

How to legally transfer a person to a fixed-term contract?

The only legal way to transfer an employee to a fixed-term contract is to terminate the previous agreement and draw up a new one. However, you need to take into account all the disadvantages of this path:

The need to pay compensation for vacation that was not used.
The accrual of seniority for registration of leave begins anew. In order for an employee to be able to legally go on vacation, he needs to work for 6 months. For example, an employee under the first termless contract worked for 5 months. That is, after a month he can go on vacation. However, if the previous agreement is terminated, another contract is drawn up, the vacation will be legal only after 6 months.
You will have to draw up cadastral documentation for the employee as newly hired.

The legislation does not provide for a simplified procedure for dismissing an employee and hiring him again. These difficulties are related to preventing abuse.

The procedure for drawing up a new employment contract

Consider the legal procedure for transferring an employee to a fixed-term contract by drawing up a new agreement:

The employer conducts a conversation with the employee and offers him new working conditions. Explains the translation scheme.
The employee leaves at his own request or by agreement of the parties.
A new employment contract with a limited duration is immediately drawn up. The manager issues an order to hire a person.
Relevant information is entered in the work book.

This method of translation is more complicated, but it is legal.

Legitimate reasons for urgency

The law provides for two legitimate reasons for concluding a fixed-term rather than an open-ended employment contract:

Relationships are concluded strictly for a certain period, based on the nature of the upcoming work and related circumstances.
The urgency of labor relations is determined by the agreement of the parties in cases where this does not contradict the current legislation.

The labor legislation of the Russian Federation (part 1 of article 59 of the Labor Code of the Russian Federation) allows to conclude fixed-term contracts arising from the nature of the work, in the following circumstances:

for a time when, for objective reasons, there is no full-time employee at his workplace, the workplace for which must be retained by law;
the upcoming work will not take more than 2 months;
to ensure seasonal work;
with foreign forms of work;
performance of actions necessary for the company, but not related to its main activity (for example, installation work, repair, reconstruction, etc.);
works associated with a limited (usually up to a year) time, such as expanding activities, increasing capacity, volumes, etc.;
the company is specially created for a short existence, providing for a limited time to perform a specific job;
work related to vocational training, internships for employees;
election for a certain period to a working elected body;
referral to public works;
additional cases stipulated by the Federal legislation (existing and possible to be adopted in the future).

Fixed-term employment contract on agreement of the parties can be concluded only on a limited list of grounds:

the employer is a representative of a small business;
the worker is a pensioner;
a medical employee is allowed only temporary employment;
work in the Far North and other equivalent territories;
when elected by competition to fill a vacant position;
urgent work aimed at preventing and/or eliminating the consequences of emergency situations;
with management, deputies and chief accountants of organizations;
with creative workers (in accordance with the list of similar positions);
with pupils or full-time students;
with partners;
with those working on watercraft registered in the Russian International Register of Vessels;
other grounds corresponding to federal laws (current and future).

Employer, remember:

it is impossible to conclude a fixed-term employment contract on grounds not specified in Art. 59 of the Labor Code of the Russian Federation;
when dismissing an employee after the expiration of a fixed-term contract, do not forget to notify him in writing 3 days in advance;
did not warn about the dismissal - the contract will become indefinite.

Worker, take note:

when applying for an urgent (temporary) job, pay attention to the condition of the end of work (a specific date or event);
if it is provided for by law, you can demand an extension of a fixed-term contract (for example, during pregnancy);
if your rights as a “conscript” are violated, the court will reinstate you at work, force the employer to pay, and possibly moral damages.

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

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

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

When is a fixed-term contract concluded?

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

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

Table.

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

* The list of works, professions, positions of creative workers was approved by the Decree of the Government of the Russian Federation of April 28, 2007 No. 252.

If there are no specified grounds when registering an employment relationship, the employer cannot conclude a fixed-term employment contract with the employee. Otherwise, in a labor dispute, this fact will be qualified as a violation of the employee's rights. In addition, it is impossible to conclude fixed-term employment contracts repeatedly without a temporary break when it comes to employees performing the same job function. This, in particular, is stated in paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation No. 2 dated March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution No. 2). Given the circumstances of the case, such contracts may be considered concluded for an indefinite period.

We draw up a fixed-term employment contract

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

Mandatory terms of an employment contract

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

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

How to determine the terms of the contract

The condition on the term of the employment contract is probably one of the most important points of this document. Without it, the contract would not be considered urgent. Therefore, we will pay special attention to it. How to formulate a term condition? It all depends on the circumstances of the contract. Let's consider them.

The end date of the contract is set. If a specific date is set when the term of the employment contract ends, it must be written in the document. Recall that a fixed-term contract can be concluded for a period not exceeding five years.

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

Let's consider how a term record can be formulated using an example.

Example 1

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

Solution

The clause of the contract, in which the condition on the term of its validity is written, will look like this:

"2. Contract time

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

An end date for the contract has not been set. In some cases, it is impossible to determine the end date of the employment contract. Here are some typical situations when the contract prescribes a condition on its validity period, and not a specific date. So, the conclusion of a fixed-term employment contract is possible:

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

In these cases, the expiration of the employment contract is associated with a specific event, for example, the return of an employee to work after a long illness. In this regard, Resolution No. 2 provides the following explanations. If a fixed-term employment contract is concluded for the performance of certain work, and the exact date of its completion is unknown, the contract is terminated upon completion of this work by virtue of part 2 of Article 79 of the Labor Code.

Example 2

Confectioner P.L. Pryanishnikova was accepted into Vanil LLC for the duration of the confectioner V.A. Kalacheva course of treatment in a hospital since August 1, 2010. With P.L. Pryanishnikova signed a fixed-term employment contract. How will the condition on the term of the contract be spelled out if it is not known exactly when V.A. Kalacheva will return to her workplace?

Solution

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

"2. Contract time

2.1. The Agreement comes into force from the day it is concluded by the Employee and the Employer (or from the day the Employee is actually admitted to work with the knowledge or on behalf of the Employer or his representative).

2.3. The contract was concluded for the period of temporary disability of the confectioner V.A. Kalacheva, who retains her job.

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

2.5. In the event that the main employee V.A. Kalacheva disability with limited ability to work or dismissal, the Employer extends this contract with the Employee replacing him for an indefinite period.

Probation

Is it possible to establish a probationary period when concluding a fixed-term employment contract? It all depends on how long and for what work the employee is hired.

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

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

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

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

pregnant women and women with children under the age of one and a half years;
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;
under the age of 18;
graduates of state-accredited educational institutions of primary, secondary and higher vocational education and for the first time entering a job in the acquired specialty within one year from the date of graduation from the educational institution;
elected to an elective position for a paid job;
invited to work in the order of transfer from another employer as agreed between employers;
to other persons in cases stipulated by the Labor Code, other federal laws, a collective agreement.

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.

We draw up a fixed-term employment contract

Let's proceed directly to the design of the document. As we have already noted above, all mandatory conditions must be included in it.

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

Example 3

Civil engineer E.V. Nezabudkin was hired by Project-Design LLC, created specifically to service the international youth sports games Sportlantida, planned in Volgograd in August 2010. Preparation for them began in January 2010, construction work should be completed on July 15, 2010. The organization will function until July 31, 2010. With E.V. Nezabud-kin need to conclude a fixed-term employment contract for the period of existence of this organization. How to compose it?

Solution

The fixed term contract is below.

Entry in the work book upon employment

According to clause 4 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225, information about the employee, the work performed by him, transfer to another permanent job, dismissal, as well as the grounds for termination of the employment contract and information on the award for success in work.

Accordingly, if a fixed-term employment contract is concluded with an employee for any period, it is necessary to make an entry about this in the work book or start a new one, if there is none. The employer must make a record of hiring a conscript in the work book if he has worked for him for more than five days and this work is the main one for this employee. This is the requirement of paragraph 3 of the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225.

However, this does not mean that it is necessary to indicate in the work book that it is a fixed-term employment contract that has been concluded. Also, attention is not focused on the fact that an employee, for example, replaces an absent specialist. It is enough to make a standard entry, for example: “Employed as a mechanic”, indicating the serial number of the entry, the date, as well as the details of the employment order. This, in particular, is stated in the letter of the Federal Service for Labor and Employment of 04/06/2010 No. 937-6-1.

Vacation of a conscript worker

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

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

Holidays are paid on the basis of the average wage, which is calculated according to the rules established in Article 139 of the Labor Code, as well as in the Regulation on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922.

In accordance with part 1 of article 128 of the Labor Code of the Russian Federation for family reasons and other good reasons, an employee, on the basis of his written application, may be granted leave without pay for the duration established by the labor legislation of the Russian Federation and the employer's internal labor regulations.

Extension of a fixed-term employment contract

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

Mandatory extension of the contract

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

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

Extension by agreement of the parties

Part 4 of Article 58 of the Labor Code states the following. In the event that neither of the parties demanded the termination of a fixed-term employment contract due to its expiration and the employee continues to work, the condition on the urgent nature of the employment contract becomes invalid. After that, the employment contract is considered concluded for an indefinite period. Does the fact of changing the status of a fixed-term contract to an open-ended contract need to be documented?

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

However, in this case, it is desirable to draw up a number of documents. Such recommendations are given in the letter of Rostrud dated November 20, 2006 No. 1904-6-1.

First of all, this is an additional agreement to the employment contract. It is possible to give the following wording in it: “To state clause No. ... in the following wording: “This employment contract is concluded for an indefinite period””.

Fixed term contract with pensioner

Often, employers enter into fixed-term contracts with pensioners. At the same time, many believe that this is the only form of relationship with this category of workers. However, it is not. The Ruling of the Constitutional Court dated May 15, 2007 No. 378-O-P states that when concluding an employment contract with a pensioner, a period can be set only by agreement of the parties. A similar conclusion is contained in paragraph 13 of Resolution No. 2.

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

Termination of a fixed-term employment contract

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

The notification is made in any form. It must specify the term for terminating the contract and the rationale (for example, in connection with the completion of work).

Dismissal order

After the employee is notified of the expiration of the employment contract and there are no obstacles to its termination, the manager issues an order to dismiss the employee. For this, there are two unified forms No. T-8 and T-8a (in the event of the dismissal of several employees), which are approved by the Decree of the State Statistics Committee of Russia of 01/05/2004 No. 1 "On approval of unified forms of primary accounting documentation for accounting for labor and its payment."

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

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

Entry in the workbook

On the day the employment contract is terminated, the employee must be given a work book in his hands (part 4 of article 84.1 of the Labor Code of the Russian Federation).

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

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

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

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

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

If an employee is on sick leave at the time when his contract expires, the fixed-term employment contract is not extended. An employee is fired for general reasons. However, sick leave must be paid. Article 183 of the Labor Code of the Russian Federation obliges the employer to do this. It states that in the event of temporary disability, the employer pays the employee temporary disability benefits in accordance with federal laws.

In turn, paragraph 2 of Article 5 of the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood” states that temporary disability benefits are paid to insured persons not only during the period of employment agreement, but also in cases where the disease or injury occurred within 30 calendar days from the date of termination of its validity.

Taxation and accounting of payments upon dismissal

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

Thus, part 4 of article 178 of the Labor Code states that labor or collective agreements can establish not only the payment of severance benefits not provided for by parts 1-3 of article 178 of the Labor Code of the Russian Federation, but also increased amounts of severance benefits.

Upon dismissal, the employee is paid wages for hours worked, compensation for unused vacation and, in some cases, severance pay.

The first two payments are subject to:

personal income tax (clause 1, article 210 of the Tax Code of the Russian Federation);
insurance premiums (clause 1, article 7 of Federal Law No. 212-FZ dated July 24, 2009 “On insurance premiums to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds”).

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

Wages are subject to contributions for injuries (clause 3 of the Rules for the calculation, accounting and spending of funds for the implementation of compulsory social insurance against industrial accidents and occupational diseases, approved by Decree of the Government of the Russian Federation of 02.03.2000 No. 184).

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

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

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

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

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

DEBIT 70 CREDIT 68 sub-account "Personal income tax settlements" - personal income tax withheld from payments that are subject to this tax;

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

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

Temporary work is understood as work, which is known in advance that it will last no more than two months (for example, during the preparation of the annual report). It will be illegal to conclude a fixed-term employment contract for up to two months to perform work that is permanent.

When concluding a fixed-term employment contract, the parties must determine its specific period within two months (a month, a month and a half, etc.). Such wording as "for up to two months" is unacceptable.

The conclusion of a fixed-term employment contract for the performance of seasonal work is allowed provided that these works are provided for in a special list. Lists of seasonal work, including work that can be carried out during a period (season) exceeding six months, and the maximum duration of these individual seasonal works are determined by sectoral (intersectoral) agreements concluded at the federal level of social partnership (part 2 of article 293 TC);

3) with persons sent to work abroad. These can be diplomatic missions and consular offices of the Russian Federation abroad, as well as representative offices of federal executive authorities and state institutions of the Russian Federation, commercial organizations, scientific and educational institutions, etc.;

4) for carrying out work that goes beyond the normal activities of the employer, as well as for carrying out work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided.

In this case, activities that correspond to the main directions of the organization's work, enshrined in its charter, will be normal.

The law, as an example of work that goes beyond the normal activities of the organization, calls the reconstruction, installation, commissioning. Depending on the nature (type) of the ordinary activities of the organization, this may be repair, construction work.

In any case, work that goes beyond the normal (main) activities of the organization, for the performance of which fixed-term employment contracts may be concluded, must be of a temporary (urgent) nature.

The law does not establish any special deadline for which such an employment contract can be concluded, therefore its term in each case is determined by agreement of the parties based on the specific circumstances and the period of time during which there remains a need to perform work that goes beyond normal activities of the organization. Here, the general rules on the deadline for the employment contract, established by Art. 58 TC, i.e. five years.

As for the employment contract concluded in connection with the need to temporarily expand production or the volume of services provided, its term is limited - it cannot exceed one year. This is due to the fact that work under such an agreement is carried out as part of the normal activities of the organization and the need to expand production or the volume of services provided is limited to certain time frames that are known to the employer.

The specific period of validity of such an employment contract within one year is determined by agreement of the parties. For example, due to the increase in the number of tourists in the summer and the expansion in connection with this volume of services provided, hotels, cafes, restaurants, transport organizations can accept an additional number of employees by concluding employment contracts with them for a certain period (1, 2, 3 months and etc.);

5) with persons entering work in organizations created for a predetermined period of time or to perform a predetermined job.

If an organization is established for a fixed term or only to perform certain work, this should be recorded in its charter. It also defines a specific period of time for which it was created or during which work will be completed, the implementation of which is the goal of creating an organization (for example, for 2, 3, 4 years).

The term of an employment contract with persons entering such organizations is determined by the period for which they were created. Therefore, the termination of the employment contract with the specified employees after the expiration of the period is permissible if this organization really terminates its activities due to the expiration of the period for which it was created, or the achievement of the purpose for which it was created, without the transfer of rights and obligations by succession to others persons (clause 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" * (17));

6) with persons hired to perform a deliberately defined work in cases where its performance (completion) cannot be determined by a specific date.

The employment contract concluded on this basis must indicate that it is concluded for the time of performing this particular work (for example, for the time of office renovation, for the period of construction of the facility). Completion (completion) of the specified work will serve as the basis for termination of the employment contract due to the expiration of its validity.

At the same time, if during the trial the fact of multiple conclusion of fixed-term employment contracts for a short period of time to perform the same labor function is established, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period (paragraph 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 N 2);

7) to perform work directly related to the internship or vocational training of an employee. In this case, the employment contract is concluded for the period of internship or vocational training.

Internship or vocational training of employees in an organization can be carried out both on the basis of an agreement with another organization that sent its employee for an internship or vocational training, and on the basis of a student agreement concluded by the organization with the student himself (see Articles 198-208 of the Labor Code);

8) in case of election for a certain period to an elected body or to an elective position for a paid job. For example, for the position of rector of a state or municipal higher educational institution, dean of a faculty or head of a department of a higher educational institution. According to Art. 12 of the Federal Law of August 22, 1996 N 125-FZ "On Higher and Postgraduate Professional Education" * (18), Art. 332 of the Labor Code, these positions are filled on the basis of elections held in the manner prescribed by the charter of the educational institution (see art. 17, 332 of the Labor Code);

9) upon admission to work related to the direct support of the activities of members of elected bodies or officials in state authorities and local governments, in political parties and other public associations.

So, not all persons entering the work in these elected bodies can be concluded a fixed-term employment contract. We are talking about such work that is directly aimed at ensuring the activities of members of the relevant elected bodies or officials (for example, work as an assistant, secretary, adviser to the governor; assistant, assistant to the chairman of the party).

In these cases, the term of the employment contract is established by agreement of the parties within the term of office of the relevant elected body or official. Moreover, the early termination of their powers should entail the termination of employment contracts with persons hired to directly ensure their activities;

10) with persons sent by the bodies of the employment service to work of a temporary nature and public works. Such works are organized as additional social support for citizens looking for work. The term of the employment contract for the performance of such work is determined by agreement of the parties.

The conclusion of a fixed-term employment contract is not allowed if the work for which the citizen is sent by the employment service is of a permanent nature;

11) with citizens sent for alternative civilian service. When concluding an employment contract with this category of citizens, it should be borne in mind that the status of citizens undergoing alternative civilian service is established by the Federal Law of July 25, 2002 N 113-FZ "On Alternative Civil Service" * (19) in accordance with the Constitution of the Russian Federation .

Alternative civilian service is a special type of labor activity in the interests of society and the state, carried out by citizens in return for conscription military service. The procedure for sending citizens to alternative civilian service is determined by the named Federal Law, other federal laws, the Regulations on the procedure for performing alternative civilian service, approved by Decree of the Government of the Russian Federation of May 28, 2004 N 256 * (20), and other regulatory legal acts adopted in accordance with them acts of the Russian Federation. The labor activity of citizens undergoing alternative civilian service is regulated by the Labor Code, taking into account the specifics provided for by this Law.

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

6) with heads, deputy heads and chief accountants of organizations. At the same time, it does not matter what the organizational and legal form of these organizations is - a joint-stock company, a limited liability company, a state unitary enterprise, etc.

In accordance with Part 1 of Art. 275 of the Labor Code, the term of the employment contract with the head of the organization is determined by the constituent documents of the organization or by agreement of the parties. Based on this, it should be assumed that by agreement of the parties, the term of the employment contract with the head of the organization is determined if it is not established by the constituent documents of the organization;

7) with persons studying full-time education;

8) with persons entering a part-time job.

Part-time employment is the performance by an employee of another regular paid job on the terms of an employment contract in his spare time from his main job (Article 282 of the Labor Code). The conclusion of employment contracts for part-time work is allowed with an unlimited number of employers, unless otherwise provided by federal law. Part-time work can be performed by an employee both at the place of his main job, and with other employers. It is not allowed to work part-time for persons under the age of 18, in heavy work, work with harmful and (or) dangerous working conditions, if the main work is associated with the same conditions, as well as in other cases provided for by the Labor Code and other federal laws.

The employment contract must indicate that the work is part-time.

4. Except for the cases listed in part 2

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