What is a fixed-term employment contract of the Russian Federation. Fixed-term employment contract: instructions for use. What it is

Example: You are the owner of a strawberry farm. You have 15 hectares of land on which you need to plant beds, fertilize, plant strawberries, take care of them every day in order to eventually get a good harvest. One, of course, can not cope, helpers are needed. Hundreds of people who want to help for a purely symbolic and modest monetary reward are running towards you in a crowd.

You are happy to accept offers, but the question arises: how to properly arrange short-term industrial relations with people? After all, you will need their services only for the summer period, and what if one of them does not want to quit in the fall, directly saying: no, give me a salary now!

Reference to the basis of the conclusion

When drawing up a fixed-term employment contract, it is necessary to indicate for what reason a contract of limited duration is concluded.

If there are no grounds for its conclusion in the text of the document, then by court it can be recognized as unlimited ( Art. 58 Labor Code of the Russian Federation).

You must also indicate the end date or designate an event that means the end of work ( Art. 294 of the Labor Code of the Russian Federation).

This is especially important in a situation where an employee is accepted in place of a temporarily absent one. In this case, the end of the contract is determined by the moment the main employee leaves, and this must be directly indicated in the text.

Trial under a fixed-term employment contract

A sample short-term employment contract with an employee may also contain a test condition, the duration of which depends on the term of the employment contract. If the period is less than two months, the trial period is not established ( Art. 70 of the Labor Code of the Russian Federation).

If the duration of the temporary contract is between two and six months, the trial cannot exceed two weeks ( Art. 70 of the Labor Code of the Russian Federation).

If an employment contract is concluded for 6 months or more, then the duration of the test, as with the conclusion of an open-ended contract, is limited to 3 months, and for executives - 6.

Paperwork

The procedure for documentary support of the employee's activities as a whole does not depend on the term of the contract concluded with him. But there is still one feature.

When hiring such an employee, an order is issued in the form T1 or another, independently developed and approved by the employer, which necessarily reflects that the contract is concluded for a specific period, and a reference is made to the basis for such a decision (one of the paragraphs Art. 59 Labor Code of the Russian Federation).

Upon dismissal, an entry of the form is made in the work book of the employee:

“... terminated due to the expiration of the employment contract, clause 2 of part one Article 77 of the Labor Code of the Russian Federation».

A similar mark is made on the employee's personal card.

Fixed term contract and pregnancy

Yes, it happens that way ... In this case, the employer, in accordance with article 261 of the Labor Code of the Russian Federation, you will have to demand (but very gently!) from the employee an appropriate medical certificate confirming her interesting condition, and extend the temporary agreement until the end of the pregnancy, i.e., in fact, until childbirth. That's when she gives birth to a baby, you can say goodbye to her, but until that moment you can’t.

Options are also possible. If, instead of a certificate of pregnancy, a girl brings a form of a temporary disability sheet established by law, where pregnancy is indicated in the justification for its issuance, as well as a statement about her desire to go on paid leave (it does not matter at all how long she has worked for you, at least a week), the employer will have to prepare and sign the corresponding order. Because, in accordance with article 260 of the Labor Code of the Russian Federation, before maternity leave (or after it), the employer is obliged to provide the woman with annual paid leave, regardless of the time she worked for him.

Therefore, it turns out that instead of three summer months, some legally literate girls can hold out in temporary work longer.

Difficulties also arise in a situation where, at the end of the contract, the employee is on sick leave. It is well known that termination of the contract at the initiative of the employer with a sick employee is not allowed. But the expiration of the term is not the initiative of the management, therefore it is quite legitimate to dismiss such an employee, the main thing is to follow the procedure.

Extension of a fixed-term employment contract

As such, the procedure for extending the STD is not described, which invariably raises questions about the possibility of increasing (or reducing) its duration.

On the one hand, such a contract either terminates on a predetermined date of expiration, or becomes indefinite if the employee continues to work.

On the other hand, the legislation does not prohibit the employee and the employer, as parties labor relations, conclude additional agreements if it is necessary to change the terms of the contract, including in relation to its term.

Rules for dismissing a temporary employee

In accordance with article 79 of the Labor Code of the Russian Federation, a fixed-term contract ends with the expiration of its validity period, this is an independent basis for terminating a working relationship.

The main steps to dismiss a temporary worker are as follows:

If they want to transfer an employee to a permanent job in an organization, then nothing needs to be done. STD automatically becomes indefinite upon continuation of the employment relationship after the date of its termination in force Art. 58 Labor Code of the Russian Federation. But it is not forbidden (and even recommended by Rostrud) to conclude an additional agreement in which to cancel the clauses indicating the duration of the STD.

A fixed-term employment contract - any employer may need a sample of it - is concluded for a certain period. However, the fixed-term employment contract of the 2019 model has a number of differences from the usual open-ended employment contract. Consider the features of drawing up a fixed-term employment contract with employees.

Features of a fixed-term contract

These variants of contracts are combined by the rights of the employee prescribed in them and the guarantees that the employer is obliged to provide to him. The employee, in turn, must obey the rules of the internal labor regulations and conscientiously perform their functions. A fixed-term contract, as well as an open-ended one, can be changed.

The situation of concluding a fixed-term employment contract becomes special for the following reasons:

Possible grounds for its registration are determined by law and should be given in the text of the contract (Article 57 of the Labor Code of the Russian Federation).
The term of the contract cannot exceed 5 years and must be indicated in the text.
It is allowed to requalify the contract into an open-ended one (Article 58 of the Labor Code of the Russian Federation):
- if the text does not indicate the basis for concluding such an agreement or if this basis does not comply with the restrictions established by law;
- the absence of a reference in the text to the validity period or the continuation of work after the expiration of the period established for the contract.
The duration of the leave due to the employee is calculated on the basis of 2 working days for each month of work with a fixed-term employment contract of up to 2 months (Article 291 of the Labor Code of the Russian Federation).
The probationary period is subject to own rules(Article 70 of the Labor Code of the Russian Federation).

Employment for a fixed period, as well as with an indefinite contract, is issued by order. The content of the order must match the data labor agreement. If there are discrepancies in these documents, the text of the agreement shall prevail.

Read about the features of issuing an order when applying for a temporary job in the material "Unified form No. T-1 - download the form and sample" .

Grounds for concluding a contract for a fixed period

The grounds that allow the conclusion of a fixed-term contract are divided into 2 groups (Article 58 of the Labor Code of the Russian Federation):

mandatory, in which the nature or conditions of work do not allow the establishment of other relationships;
voluntary, when parties to the agreement may be persons of certain categories.

The first group is formed by such situations (Article 59 of the Labor Code of the Russian Federation):

replacement of a temporarily absent employee;
the work is temporary (no more than 2 months) in nature;
performance of work is tied to a certain season;
the employee is sent abroad;
the work is not usual for the employer, but is associated with the reconstruction of production and is obviously temporary;
the legal entity-employer was originally created for a certain period of time or for some kind of work;
the result of the assigned work cannot be tied to a specific date;
work during practice, vocational training, internship;
election to an elected body, to an elective position or employment providing for the activities of such bodies;
temporary or social work in the direction of the employment service;
alternative civilian service.

The second group includes (Article 59 of the Labor Code of the Russian Federation):

persons entering work for employers that are SMEs (including individual entrepreneurs) with up to 35 employees, and for those employed in retail or sphere consumer services- up to 20 people;
old-age pensioners and persons who, for health reasons, are not capable of permanent work;
persons moving to work in organizations located in Far North or in areas equivalent to it;
persons involved in work intended to prevent, eliminate or eliminate the consequences of emergency situations;
persons who have taken office as a result of a legally necessary competition;
creative workers according to the list approved by the Government of the Russian Federation;
heads of legal entities, their deputies and chief accountants;
persons studying full-time;
crew members of all types of vessels registered in the Russian International Register;
workers registered on a part-time basis.

The following options are also possible:

If it becomes necessary to replace the second absent employee with the same temporary worker, then you can conclude 2 fixed-term contracts with him (one of which will be an agreement with a part-time worker) or make changes to an existing one by issuing an additional agreement to it on replacing 2 employees at the same time.
It is possible to accept a temporary worker to replace an employee who is hired under a fixed-term employment contract, but for some reason will be temporarily absent from work. Here, the grounds for termination of the contract will be the return to work of any of the replaced employees.

Trial in the case of a fixed-term contract

The establishment of a probationary period for a fixed-term contract, as well as for an indefinite one, is not mandatory. But if there is an intention to install it, then you must remember that:

it is not set for a contract period of up to 2 months.
it cannot be more than 2 weeks with a contract term of 2 to 6 months.

The condition for the establishment of the test must be fixed in the contract.

Who should not install probation when applying for a job, see .

Termination of a fixed-term contract

If there are no grounds for re-qualifying the contract as open-ended, then its validity will expire:

within the period specified in the text (clause 2, article 77 of the Labor Code of the Russian Federation), about which the employee must be warned at least 3 days in advance (article 79 of the Labor Code of the Russian Federation), if the contract is not related to replacing an absent employee;
with the onset of an event to which the term of the contract is attached (Article 79 of the Labor Code of the Russian Federation): the employee who has been replaced, the end of the season or the assigned work.

Exceptions may be situations related to pregnant women whose contract expires during pregnancy (Article 261 of the Labor Code of the Russian Federation):

at the request of the employee, the contract may be extended until the end of this state;
if pregnancy requires a transfer to another job corresponding to the woman’s condition, and the employer has nothing to offer or the woman does not agree to this job, then the contract is terminated before the end of the pregnancy.

As well as a contract that is valid without a term, a fixed-term contract can be terminated on other grounds specified in Art. 77 of the Labor Code of the Russian Federation, for example, by agreement of the parties or the initiative of the employee, due to a change in the essential terms of the contract, in connection with a disciplinary sanction, or with any external circumstances.

About what claims may arise against the employee in relation to labor discipline, read the articles:

“What is considered late under the Labor Code?” ;
“How to arrange absenteeism for an employee according to the Labor Code of the Russian Federation?” .

Sample contract for a fixed period

An employment contract is a document that does not have a strictly mandatory form, but assuming the mandatory inclusion of a certain set of information in it.

Who is obliged to use a standard employment contract, find out from this publication.

Employers can independently develop the form that they will apply, or they can use a unified form of an employment contract.

What the unified form of the employment contract looks like, see the link.

For fixed-term and perpetual contracts, the data, the presence of which is mandatory in the text, largely coincide. Therefore, they are often used general form, providing in it the sections necessary for filling out under fixed-term contracts.

Recall that the fixed-term contract should reflect:

its validity period, established either by a specific date or by the occurrence of a specific event;
an indication of the reason for concluding a contract for a period, and this reason should be among those listed in Art. 59 of the Labor Code of the Russian Federation.

A sample fixed-term employment contract can be found on our website.

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

Repeated extension of a fixed-term employment contract for a new term may entail its retraining into an open-ended employment contract, especially if the same labor function is expected to be performed.

However, some features must be taken into account:

Repeated extension of a fixed-term employment contract for a new term with the director of an LLC does not entail its recognition as an open-ended employment contract. This exception is explained by the fact that, according to part 1 of Art. 275 of the Labor Code of the Russian Federation, the term of the employment contract with the director is determined by the company's charter or agreement of the parties. The director is elected for a period established by the charter of the company (clause 1, article 40 of the law "On companies with limited liability"dated February 8, 1998 No. 14-FZ). In this case, the provisions of Art. 58 of the Labor Code of the Russian Federation regarding the recognition of a fixed-term employment contract as indefinite does not apply to relations with the heads of companies. The director may be re-elected an unlimited number of times.
It is allowed to extend a fixed-term employment contract with employees of the scientific and pedagogical staff, elected by competition to fill a previously occupied position. In this case, an additional agreement may be concluded between the employee and the employer on the extension of a fixed-term employment contract (clause 8, article 332 of the Labor Code of the Russian Federation).
If the term of a fixed-term employment contract expires during a woman's pregnancy, the employer is obliged to extend it upon a written application from the employee (Article 261 of the Labor Code of the Russian Federation). An order to extend a fixed-term employment contract, or rather a sample of it, can be downloaded from the link.

Results

Drawing up an employment contract for a fixed period of time does not present any difficulties, but requires compliance with a number of legally established rules to exclude the possibility of its retraining into an indefinite one.

Hello! Today we will talk about hiring on a fixed-term employment contract. The features of such an agreement are detailed in the Labor Code, but despite this, when hiring new employees for a period, the company often makes mistakes. In order to avoid litigation and fines, the employer should understand all issues in detail.

What is a fixed term contract

Fixed-term employment contract - a common type of agreement between an employer and an employee, when, for certain reasons, these relationships have an agreed end date, unlike the usual one.

Download the form, a sample fixed-term employment contract
Download Sample Order for Employment under a Fixed-Term Employment Contract

Fixed-term and perpetual contracts - what is the difference

For ease of comparison, we present the data in the form of a table:

Index	Perpetual TD	Urgent TD
Validity	Has no expiration date	Maximum five years. The term can be indicated by a date or an event (exit of a permanent employee, end of temporary work). In addition, added to the order
Reason for confinement	Not specified	Required in order
Worker task	The employer constantly assigns new tasks	The task is one-time and specific
Social guarantees for an employee	Provided by the Labor Code (sick leave, vacation, etc.)	Similar to BTC, if STD has not yet expired at the time of the guarantee period
State attitude	It is perceived as a guarantee of a stable income for the population and the prosperity of the economy	A possible source of risk in the form of abuse by the employer. Maximum

However, the employer is not always free to choose which type of contract to offer to the applicant, since in some paragraphs the law requires the conclusion of a STD, and in some it makes such a step on the part of the employer possible, but not mandatory.

In what cases is it necessary to register an employee according to STD

There are types of work, the nature and conditions of which require the conclusion of an employment contract for a limited period. Most often this is due to natural or seasonal features, as well as the inability to know the end date of the activity.

We list the main cases:

During the absence of a permanent employee (for example, due to maternity leave);
When sending an employee to work abroad;
In case of temporary transfer of an athlete to another employer;
If the employing organization itself was created temporarily to solve a specific problem;
For activities that are not typical for the organization;
To perform seasonal work;
To perform temporary work (up to two months);
For work in connection with professional activities / internships;
For persons sent to public works;
If the employee is a vice-rector of a higher educational institution;
If citizens are undergoing alternative civilian service;
When elected for a fixed term as a member of an elected body.

In what cases is it possible to register an employee under STD, but not necessarily

An optional STD is called “by agreement of the parties”.

The employer may conclude it with persons under the following circumstances:

Small businesses with no more than thirty-five employees;
An employee of retirement age, as well as if, according to the doctor's prescription, he can only be in a temporary job;
Work in the conditions of the Far North and is associated with moving there;
To eliminate the consequences of catastrophes, epidemics, accidents, as well as to prevent these events;
People creative professions(filmmakers, media journalists, theater and circus artists);
Full-time employee in an educational institution;
Crew members of sea and river vessels;
Managers, their deputies and chief accountants of enterprises, regardless of the form of ownership and activities of the company;
part-time workers;
Deputy positions of scientific and pedagogical employees in a higher educational institution;
Persons invited to the coaching position to prepare the wards for the competition.

In all other cases (the vast majority of them), the law prescribes the hiring of workers only under an indefinite employment contract.

How to apply for a job on STD

So, if the employer is convinced that the case with his future employee falls under one of the above points, the question arises of competent employment, including the correct completion of all documents. In general, employment according to STD does not differ from the traditional one, but has several features.

With both options for employment, the employee must bring the following documents to the personnel department:

Passport or other identity document;
Work book (if the job is the first, the employer does not have the right to ask the employee to bring an empty book, as it is a document of strict accountability. It must be entered by the employer himself);
Insurance certificate of state pension insurance (SNILS);
Documents of military registration - for persons liable for military service;
Document on education or qualification;
Certificate of non-conviction.

Strictly according to the Labor Code, the employer is not entitled to request from the employee TIN, as well as registration at the place of residence, but they are often needed and therefore requested. As for medical books, their need is determined by the nature of the employee's activity (trade, education, public catering, and others).

After the employee submits the documents, the next multi-stage stage begins - its execution personnel service organizations. At this stage, there are a number of nuances inherent in STD.
Let's look at them in a table:

Stage No.	Document	Fill feature	Important to remember
	Application for a job	Compiled by hand on paper. Its appearance is at the discretion of the organization	Is not binding document. If available, stored in the employee's personal card
	Employment contract	An indispensable condition is that the contract must specify the expiration date of its validity. It must also provide the basis for its conclusion.	If the term is not specified, in the eyes of the law, the contract will automatically become indefinite. Even if the deadline is indicated in the order for employment
	The order of acceptance to work	Fill out a printed form T-1 (single person) or T-1a (multiple). 2 dates are entered in the "date" cell - "from" and "to"	It is necessary to mark the event as the end of the contract if its calendar date is unknown. For example, "upon completion of the collection of apples in the orchards"
	Employment history	The employment record does not differ from the BTC record - “temporality” is not reflected in any way	"Urgency" will be reflected later, upon dismissal, through a record mentioning the expired contract
	Employee's personal card	The card has a unified form T-2	After reviewing the entry in the work book and personal card, the employee signs on the 2nd and 3rd page of the card
	Add. employment contract agreement	optional step. Compiled if the STD has expired, but both parties want to extend the employment relationship	In this case, the contract is transformed into an open-ended contract.

Without fail, even before signing the contract, the employee must familiarize himself with the internal labor regulations, his job description, as well as confirm your familiarization with a signature in the appropriate journal.

The employment contract, order and work book are registered in the relevant journals by an employee of the personnel department.

What probationary period can be set for STD

As is known, under normal employment contract the probationary period cannot exceed three months (or six months in the case of the position of head or chief accountant). However, with STD, the conditions are somewhat different, given the possible short duration of work.

Unless otherwise provided, the trial period remains the standard of up to three months;
If the TD is issued for a period of two to six months, then the duration of the test cannot exceed a two-week period;
If the contract is concluded for a period of less than two months, then the test is not carried out.

So, we have analyzed the key issues on a fixed-term employment contract. Let's hope that the information received will allow employers to better navigate this difficult issue and more confidently lead their company to success.

The Labor Code of the Russian Federation gives the right to employers to draw up fixed-term employment contracts. But this can be done only if there are grounds specified in the legislation. That is, the management of the enterprise cannot conclude a temporary employment contract with any person, at will.

Who and with whom can conclude such a document?

A fixed-term employment contract is concluded between the parties to the employment relationship, that is, between the employee and the employer. To conclude such an agreement, there must be a legal basis, the employer cannot make an employee based only on his desire.

If the contract does not specify such a basis or it does not correspond to reality, the contract can be recognized and the employee becomes permanent.

Advantages and disadvantages

The main advantage of a fixed-term employment contract for the employer is that the period of work for a person is limited, after it ends, he should not renew his employment relationship with him.

Also, employees who have concluded contracts for a period of less than six months may not be paid the full reduction benefit or not be warned if the contract expires earlier than two months, that is, before the date of reduction.

For an employee, a fixed-term employment contract has practically no advantages, with the exception of the fact that under a contract the term of which is less than two months, it is not established, and you can quit with just three days' notice.

Conditions for issuing a fixed-term employment contract

The main condition that makes it possible to conclude a temporary employment contract with an employee is the existence of a legal basis, which must be indicated in the text of the contract.

Foundations

The grounds for concluding a fixed-term employment contract are given in article 59 of the Labor Code of the Russian Federation. This includes:

, which retains space.
Perform temporary and seasonal work. In this case, the work must necessarily be of a pronounced temporary nature or be seasonal.
Performing work that is not the main activity of the enterprise.
Performing work in organizations or workplaces that were originally created for a certain period of time.
Citizens whom the enterprise sends to work outside the country.
Election to an elective office or elected body.

For these reasons, the employer may conclude an employment contract without the consent of the employee.

In addition, there are grounds on which the employment contract may be temporary if the parties have agreed on this.

In practice, when hiring, the employer announces his intention, and the employee may agree or not.

In case of disagreement, he is simply not hired due to the lack of agreement between the parties.

These grounds include the following:

With pensioners by age who are registered for work.
With workers taking jobs in companies that can be classified as micro-enterprises.
With managers, their deputies and chief accountants.
With partners.
With full-time students.
With persons who occupied the vacancy as a result of competitive selection.
If the work has special conditions (creative work, work on ships and in the Far North, prevention of the consequences of accidents and disasters).

If the reason is not specified, then it is considered that the contract is concluded as temporary without legal grounds.

Required documents

The fact of concluding a temporary contract is also reflected in several other documents.

Statement

The application form is not approved, as is not approved what the employee must. But in practice it is much more convenient when this fact is reflected. For example: I ask you to accept me as an accountant during the absence of a permanent employee.

The rest of the application is written in the usual manner.

Order

After an employment contract is signed with the employee, an order is drawn up for his admission. Usually use the unified form T-1. It indicates that the employee was hired for a while, and for what reason. If the date of dismissal is determined, then it is also indicated in a special cell.

On the basis of the order, an entry is made in the work book, but it does not indicate that the work is temporary.

The nuances of the conclusion with different categories of citizens

Separately, it is necessary to consider several categories in respect of which there are nuances when concluding an employment contract for a certain period.

Minors

The Labor Code of the Russian Federation does not indicate that the employer does not have the right for employees to have fixed-term contracts. Accordingly, persons under 18 years of age can also be employed for a certain time, if there are grounds for this.

But at the same time, the employer must comply with all the conditions that are determined by chapter 42 of the Labor Code of the Russian Federation:

Work must not be dangerous or harmful.
The working day should not exceed the norms that are established for a certain age.
Minors may not be sent on business trips or employed at night.
It is also prohibited to engage in overtime work and work on weekends and holidays.

Termination of labor relations due to the expiration of the employment contract does not apply to the initiative of the employer, which means that in this case this procedure is possible without the involvement of the labor inspectorate and the commission on minors.

Pregnant women

Obliges the employer to extend the contract with a pregnant woman until the end of her pregnancy, that is, until childbirth. If a woman receives sick leave for pregnancy and childbirth and goes on appropriate leave, then the contract is extended until it ends. If she returns to work after giving birth, the employer can terminate the contract with her within 7 days.

Read also: What period of validity can be specified in the employment contract

In order for the contract to be extended, the employee must do the following:

Write an application for an extension indicating the reason.
Attach a certificate of pregnancy to the application.

The employer has the right to require a certificate of pregnancy every month until its completion.

If the employer does not have the opportunity to extend the employment contract of the pregnant woman, for example, in the event of the departure of the main employee, then before dismissal, he must offer her all available vacancies that suit her, taking into account her position.

pensioners

By agreement of the parties with pensioners by age, a fixed-term contract can be concluded. The term of such an agreement is limited only to a maximum limit of five years.

It is possible to conclude a fixed-term contract with a pensioner only if he finds a job at a new job. If at the time of retirement age he worked in an organization and had an indefinite employment contract, then he cannot be transferred to temporary work.

Leaders

An employment contract with a manager can be temporary for two reasons:

By agreement of the parties.
In the case when the position of the head is elective.

According to Article 275 of the Labor Code of the Russian Federation, the validity period of such an agreement must be determined by the statutory or other local regulatory documents, respectively, it can be concluded for more than 5 years.

Payment Features

Temporary workers are paid on the basis of the regulations in force in the organization. But at the same time, there are certain nuances when paying vacation compensation.

Compensation for unused vacation

The Labor Code of the Russian Federation makes a reservation only regarding vacations for employees who have concluded an employment contract for less than two months or their work is seasonal. In this case, they are granted leave (compensation) at the rate of 2 calendar days per month, and not 2.33 as in all other cases.

For all other categories of employees who have concluded temporary employment contracts, general principles calculation of holidays and compensation for them.

Vacations and sick days

Since, for obvious reasons, temporary workers may not fall into vacation schedules, they can be provided with rest only in agreement with the employer, especially for those categories whose employment relationship does not exceed six months.

During the period of temporary incapacity for work, temporary employees are subject to all the benefits due to the main employees. That is, they keep workplace and benefits are paid.

If the employment contract ended while the employee was on sick leave, the employer still has the right to dismiss him. Moreover, if this is not done, the contract may be recognized as open-ended due to the fact that none of the parties initiated its termination after the expiration date.

Termination Features

If after the deadline, the employer must notify the employee 3 days in advance, if possible. This becomes impossible if the contract does not indicate a specific date, but the occurrence of a certain event, for example, the exit of the main employee.

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

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 law 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 they conclude

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 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.

* 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 if we are talking on the performance by employees of the same labor function. This, in particular, is stated in paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by courts Russian Federation 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 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 date of its conclusion by the Employee and the Employer (or from the date actual assumption the Employee to work with the knowledge or on behalf of the Employer or his representative).

2.3. The contract was concluded for the period of temporary 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 labor activity or dismissal, the Employer extends this contract with the replacement Employee 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 corresponding position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing norms labor law;

under the age of 18;

graduated from state-accredited educational institutions of primary, secondary and higher vocational education and for the first time entering work in the received specialty within one year from the date of graduation 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 trial 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 organizations - six months, unless otherwise provided 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.

Special attention it is worth paying attention 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 serve international youth sports games"Sportlantida", planned in Volgograd in August 2010. Preparation for them began in January 2010, construction works must 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 paragraph 4 of the Rules for maintaining and storing work books, manufacturing 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 is entered into the work book, and the grounds for termination of the employment contract are also indicated and information about awards for achievements 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 Federal Service on labor and employment of 06.04.2010 No. 937-6-1.

Vacation of a conscript worker

An employee who has entered into a fixed-term employment contract general order an annual paid leave is provided 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 for the 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 pregnancy.

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 paragraph 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, the 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 after the expiration 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 work book

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 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 the 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, in paragraph 2 of Article 5 federal law dated December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with motherhood” states that temporary disability benefits are paid to insured persons not only during the period of work under an employment contract, but also in cases where illness or the injury occurred within 30 calendar days from the date of its termination.

Taxation and retirement benefits

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 in parts 1-3 of article 178 of the Labor Code of the Russian Federation, but also oversized severance pay.

An employee is paid upon termination wage for hours worked, 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 the Federal Law of July 24, 2009 No. 212-FZ “On insurance premiums in Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and the 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 injury contributions (clause 1 of the List of payments for which insurance premiums in the FSS of Russia, approved by the Decree of the Government of the Russian Federation of 07.07.99 No. 765).

Severance pay within the limits is not subject to personal income tax, insurance premiums (subparagraph “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 included in expenses for ordinary species 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- accrued payments to the employee upon dismissal;

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

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

Read more about everything related to seasonal work in the articles "Employee for the Season // Salary, 2010, No. 7". There are also examples of filling out documents. - Note. ed.