An increasing number modern companies uses fixed-term employment contracts in his practice. A fixed-term employment contract is an alternative form of agreement between a company and an employee. This agreement has certain period its ending.

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

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

• There is no permanent employee, a place is needed for him (long sick leave, vacation, maternity leave).
• An employee gets a job for a period of less than 2 months (student labor practice).
• It is required to perform work that depends on the season (work related to harvesting).
• Performance of work with certain terms from the customer (repair work).
• Working in an elected office.
• faces creative professions(media workers, actors, circus performers, etc.)
• An employee is sent to work abroad.
• An employee is hired by a sole trader.
• An employee is employed by a small business.
• Combination of positions.
• Employment of pensioners by age (pensioners by length of service do not apply to this item).
• Employment of employees with disabilities (presence of medical contraindications).
• Persons performing alternative civilian service (Constitution of the Russian Federation, Art. 59)

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

Collective agreement

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

The following does not apply to changing the deadline:

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

The collective agreement continues to be valid for another 3 months when the owner changes. Further, either terminated or a new one is concluded.

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

Social guarantees for the employee

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

• Every employee has the right to take leave. The term of the contract does not matter. For the calculation, we take the figures specified in the legislation. The employee is entitled to 2 days of vacation for each month worked.
• Contingent employee fixed-term contract, may receive leave upon dismissal (Article 127 of the Labor Code of the Russian Federation). Such leave is that it is issued at the end of the contract. The fixed-term contract is extended until the end of the vacation.
• Study leave may be granted if there is a certificate-call from educational institution with indications of the dates of the session (Articles 173-176 of the Labor Code of the Russian Federation).
• Maternity leave. A woman is entitled to maternity leave if she was not pregnant or did not know about her situation at the time of entering into a fixed-term contract. This condition is confirmed by a medical certificate (Article 255 of the Labor Code of the Russian Federation).

Probation

For a new temporary employee, the employer also has the right to appoint probation to test his professional and business qualities. There are time limits.

• The term of the contract is 2-6 months - a trial period of not more than 2 weeks.
• The employee applies for leadership position. In this case, the probationary period may be extended up to 6 months.
• For civil servants, the probationary period can last 1 year (Article 27, Clause 1 of the Federal Law “On Public Service”).

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

• The term of the concluded contract is less than 2 months.
• Employees who have passed the competition to fill the vacancy.
• Newly hired young specialists (university graduates).
• Employees invited by management from third parties.
• Pregnant women and women with children under 3 years of age.

Termination of an agreement

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

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

• The employee grossly violates labor discipline(lateness, absenteeism).
• The organization is downsizing.
• A temporary employee does not cope with his job duties (inconsistency with the position held).

Retirement work.

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

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

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

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

A fixed-term employment contract is concluded only in those cases that are provided for by law. A fixed-term contract, which is concluded at the request of the employer without sufficient grounds, is considered concluded for an indefinite period.

Employers have the right to issue temporary contracts when the employment relationship cannot be established for an indefinite period. Such agreements are made:

• Only in cases provided for by law;
• Given the nature of the work;
• Taking into account the conditions of work.

There are two types of grounds for issuing fixed-term contracts: mandatory and by agreement of the parties. In other words, the legislation separates situations when a temporary contract is concluded regardless of the wishes of the parties and when it is drawn up at the personal request of the parties.

The Labor Code contains a closed list of grounds on which a temporary contract is concluded. If a fixed-term contract is not concluded in accordance with these grounds, it is considered to be concluded for an indefinite period.

Let's take a closer look at each type of foundation.

A fixed-term employment contract is mandatory in the following cases:

• For the duration of temporary work, the term of which is less than two months;
• Citizens were sent to work abroad;
• For the duration of seasonal work;
• For the duration of the duties of an absent employee;
• Persons get a job in companies that are created for a predetermined time to perform a specific job;
• The jobs for which employees are hired are different from the jobs that the organization normally does;
• Work is associated with an increase in production for some time;
• Citizens are sent to the civil service;
• Persons are hired for work, the end of which cannot be determined by a specific date;
• Passing an internship;
• Election for a specific term to an elective office;
• Citizens are sent to work by employment agencies.

By agreement of the parties, the contract is concluded:

• With citizens who get a job with employers who are engaged in small business, the number of their employees is less than thirty-five people (if the organization is engaged in retail trade - no more than twenty people);
• With pensioners;
• With citizens who, due to their health, can only work temporarily;
• With persons who get a job in companies located in the Far North;
• With citizens selected in a competitive way to fill a position;
• To carry out urgent work to prevent various accidents and disasters, as well as to eliminate the consequences after them;
• With citizens of creative professions;
• With persons holding managerial positions, including chief accountants;
• With full-time students;
• With citizens who get a part-time job;
• In other cases provided by law.

It should be noted that a fixed-term contract is concluded in accordance with the general rules. However, apart from general provisions The text of the agreement must include:

• The reason for concluding a temporary contract, always with reference to the TC;
• The term of the contract.

Violation by the employer of the current legislation

If during the execution of a temporary contract the employer violated any norms of the law, the employee has the right to defend his rights. To do this, he can apply to the court.

If there is controversial situation, the court recognizes a temporary contract as a contract concluded for an indefinite period, if, upon its conclusion, the employer:

• Did not specify the term of its validity in the text of the contract;
• Did not take into account the list of cases in which it is possible to conclude a temporary contract;
• He did not indicate the reason why the contract is concluded for a certain period;
• Did not provide the employee with the stipulated rights and guarantees.

If the dismissal of an employee is illegal, the court will oblige the employer to:

• Reinstatement of the employee in the previous position;
• Payment to an employee wages for the period of forced absenteeism;
• Compensation for non-pecuniary damage.

It is worth noting that the court may recognize a temporary contract as a contract concluded for an indefinite period not only upon termination of the contract, but also during its validity.

Changing the term of the contract

Employers quite often wonder if it is possible to change the term of a temporary contract.

By general rule extension of the period of validity of the temporary contract is prohibited. However, there are exceptions to all rules. So, in this situation, there are cases in which the employer can (and sometimes even obliged) to extend the contract. Subject to these exceptions, the contract period can be extended with:

• Employees of higher educational institutions elected in a competitive way to fill a previously occupied position;
• Athletes;
• Expectant mothers (if a woman writes an application for an extension and provides a certificate from a doctor).

It is possible to extend the period of the contract only in these three cases. To extend the term of the contract in other cases, you can make changes to the text of the contract. This can be done by signing an additional agreement.

Renewing the contract with the help of agreements, employers should remember that the maximum allowable renewal period is five years. Also, in order to extend the contract, the grounds on which the contract was concluded must be preserved.

For more information about the conditions for extending a fixed-term employment contract, read in.

In practice, there are very often cases when it becomes necessary to conclude a fixed-term employment contract instead of an agreement concluded for an indefinite period of time. What are the features of this agreement, and how should it be drawn up?

What it is?

Dear readers! The article talks about typical ways to solve legal issues, but each case is individual. If you want to know how solve exactly your problem- contact a consultant:

APPLICATIONS AND CALLS ARE ACCEPTED 24/7 and 7 days a week.

It's fast and IS FREE!

A temporary employment agreement is an agreement between an employee and an employer, concluded for a certain period of time. At the same time, the law clearly provides for the cases and procedure for concluding such an agreement.

Normative base

• Types of contracts are described. The grounds for issuing a temporary contract are indicated in.
• The expiration of the term of the temporary contract is regulated by paragraph 2 of the Labor Legislation of Russia.
• The exclusion of a probationary period for employees hired under a fixed-term contract is stipulated in.
• The duration of seasonal work for which a fixed-term contract is concluded is described in the article, and the list of these works, the accrual of experience and the procedure for this process are listed in.

How is it different from indefinite?

A fixed-term contract has a certain period of time for which it is concluded. An open-ended contract has no expiration date.

Moreover, with a temporary contract, it indicates the reasons for concluding just such an agreement. An open-ended contract does not require the indication of such reasons.

After all, the law says that it is desirable to conclude an open-ended contract. A fixed-term contract is concluded in cases where the conclusion of an open-ended contract is impossible.

With whom and in what cases is it concluded?

An employment contract for a fixed period is concluded:

• with employees who arrived to perform seasonal work or for temporary replacement (up to one year);
• when working abroad;
• in public and temporary work from the employment center;
• when appointing an alternative service and expanding the production of the enterprise;
• when sending an employee for an internship or retraining;
• with pensioners and people with poor health.

Who can't deal with?

The employer has the right to issue an employee under a fixed-term contract only in cases where such an opportunity is provided for by applicable law.

However, despite the existence of grounds for drawing up a temporary contract, it cannot be concluded several times in a row, without providing breaks (only with the same type of labor activity).

If an employee is pregnant, the fixed-term contract is subject to extension until the end of the pregnancy - this is a mandatory legal requirement.

Advantages and disadvantages

Below are the pros and cons of this agreement for both the employee and the employer.

For an employee

For the employee, there are such advantages as:

• the presence of the same social guarantees, as well as for employees of an indefinite contract (payment for sick leave, vacations, etc.);
• payment upon dismissal due to the liquidation of the organization (only if the contract has not expired);
• a fixed-term contract is concluded only if a number of conditions established by law are met.

The disadvantages for the employee are:

• dismissal after the expiration of the contract;
• dismissal upon exit workplace main employee;
• problems for women on parental leave when calculating continuous service and calculating pensions.

For the employer

The only disadvantage for the employer when drawing up a temporary contract with employees may be the pregnancy of a subordinate.

In this case, termination of the fixed-term contract is not allowed or is possible only upon liquidation of the organization.

The advantage of concluding such an agreement will be considered complete control over the employee and his labor activity.

Grounds for conclusion

Article 59 of the Labor Code of the Russian Federation regulates the grounds for concluding such an agreement.

The legislation provides unconditional grounds for concluding such an agreement. (1 part of Art. 59). But it can also be concluded by agreement of the parties (part 2 of Art. 59).

The unconditional grounds provided for by the Labor Code include:

• conclusion of an agreement during the absence of the main employee;
• for temporary work;
• for seasonal work
• when working abroad;
• with an increase in production volumes;
• when creating a company for a period with a certain period;
• during training and internship of the main employee;
• upon selection for this position;
• with temporary provision of an elected body;
• when working from the employment center and in the alternative civilian service.

The grounds for concluding a temporary contract by agreement of the parties include:

• work in small business;
• retirement age of the employee;
• medical restrictions and indications;
• when moving to the Far North;
• urgent prevention of emergency;
• election to office through competition;
• the position of the employee is related to the creative profession;
• when concluding an agreement with the head, deputy, chief accountant;
• finding an employee in full-time training;
• part-time job (both with internal and external part-time job).

How is a fixed-term employment contract concluded in 2020?

Below is the procedure for concluding an urgent labor agreement.

Order

A temporary agreement is drawn up in cases where it is not possible to conclude an open-ended contract with an employee. At the same time, the employer must understand that this is possible only if all the conditions of the Labor Code are met.

The contract may be concluded for a period not exceeding five years. Extensions are only possible if certain legal requirements are met.

On what period?

A temporary contract in accordance with the Labor Code of the Russian Federation can be concluded:

• for a period of not more than 2 months, when performing short-term work (seasonal work);
• for a period limited by the activity performed, while the end of the contract occurs at the end of the work;
• during the absence of the main employee.

Is there a trial period?

The establishment of a probationary period for admission under a temporary contract is possible only with the written consent of the employee himself.

Refusal of an employee from a probationary period cannot serve as a refusal of an employer to hire.

Compilation nuances

An employment agreement must be concluded subject to certain legal requirements.

Form and Sections

A typical temporary employment contract should include the following information:

• information about the parties that concluded it;
• subject of the contract;
• the period of the agreement;
• probationary period or its exclusion;
• salary;
• working time and rest time;
• duties of the parties;
• employee guarantees;
• social insurance.

This document must be drawn up in 2 copies, one of which remains with the employee, and the second with the employer.

The temporary contract must include:

• data of the parties (full name, data of the employee's passport, TIN of the employer);
• region and date of conclusion;
• name of company;
• description of the employee's work activity;
• salary;
• operating mode.

It is also mandatory to justify the reasons for concluding a temporary contract → the period of validity of an urgent relationship, etc.

Type sample

What does such an agreement look like?

Below is a sample form of a fixed-term employment contract:

Required documents

To conclude a contract, certain documents are required.

Statement

An employee's application for employment is made in writing.

This document is not considered mandatory and does not confirm the existence of an employment relationship between the employer and the employee.

The application form is not approved by law, and it can be drawn up in any form. The application is dated and signed at the end.

Below is a sample of this document:

Order

This document prescribes the position, date of entry to work, type and conditions of activity, tariff and payment.

The order contains the personnel number of the employee, based on the general register of employees.

The position specified in the order must be identical to the position specified in the employment contract. At the end of the order, the employee writes in his own hand: “I am familiar with the order” and puts his signature.

Drawing up an order is considered mandatory: without it, hiring is impossible.

Below is approximate form of this document:

Entry in the work book

The entry in the work book when working under a temporary contract should not differ from the entry when working under an open-ended agreement.

However, the entry made upon dismissal must reflect the condition of the temporary employment contract.

Example:

Design features for different categories of employees

The conclusion of a fixed-term employment contract with certain categories of citizens has its own characteristics, which are presented below.

With a minor worker

When drawing up a fixed-term contract with a minor whose age reaches 14 years, it is necessary to obtain consent from one of the parents (guardian, trustee).

Labor activity should not interfere with the study of a teenager.

If the employee is already 16 years old, then he can be hired under a temporary contract, with the condition that he receives a general education, or when combining study and work.

The employer must provide the teenager with light work.

If the child is not even 14 years old, then the conclusion of an employment contract is excluded, except for the sphere of cinema and circus.

Below is an example of a fixed-term employment contract concluded with a minor:

During maternity leave

When hiring an employee in the place of the main employee who is on maternity leave, the employer is obliged to discuss all the conditions and period of validity of the temporary employment contract.

Moreover, when the main employee extends maternity leave, it is allowed to extend the term of the temporary employment contract.

It is allowed to transfer from a temporary contract to an open-ended one, with the consent of all parties to the formalized labor relations.

For temporary and seasonal work

In case of seasonal activity, a temporary contract is concluded for a certain period.

The contract specifies the reasons for the conclusion of such a contract and the expiration of its validity. The document is drawn up in writing.

At the end of seasonal work, the employer notifies the employee no later than three calendar days about the termination of the contract. Non-working days are considered calendar days.

Below is an example of such a contract:

At the same time

An employee who has 2 jobs (main and part-time) must have at least 2 employment contracts.

An employment contract with a part-time partner is mandatory. It should state that this activity is carried out part-time.

A temporary contract for part-time employment is concluded for a period not exceeding 5 years. The minimum term is not established by law.

An entry in the work book is made only if the employee works in this way.

It is prohibited to work part-time for a person under the age of 18, a municipal employee, a judge, a member of the Government and other similar categories (with the exception of activities in teaching and creativity).

Below is an example of this agreement:

Pregnant women

A temporary contract cannot be terminated with a pregnant employee. The end of it is permissible only a week after the end of pregnancy.

Leaders and directors

The conclusion of a temporary contract with the head of the organization is allowed only by agreement of the parties.

pensioners

The Labor Code of the Russian Federation provides for the conclusion of a fixed-term contract with a person of retirement age.

However, if such an age was reached during the validity of an open-ended employment relationship, then renegotiation of the contract is not required.

With a foreign citizen

According to labor law a temporary contract with a foreign citizen can be concluded, moreover, without a fixed period and regardless of the period of validity of the work permit.

Involvement of a foreigner in work is possible upon reaching the age of 18.

The exception is highly qualified specialists in the field of trade in folk and pharmaceutical goods.

Holidays

Regardless of what contract is concluded with the employee, he is entitled to leave.

The difference can only be related to the period of work:

• When concluding a temporary contract for a period not exceeding 6 months, the calculation is made on the basis of the conditions - two days of rest per working month (six-day working week). Working days, holidays and weekends are not taken into account when calculating vacation.
• With a fixed-term contract concluded for seasonal work for more than 2 months, the condition of vacation days changes to 2.33 days. It turns out that when calculating vacation for a full working year, a seasonal worker is given a full vacation with a period of 28 days.

Compensation for unused vacation calculated based on general conditions: 2.33 days for one month of employment.

Financial questions

Below are the main financial questions that may arise when concluding a fixed-term employment contract.

Salary

Remuneration under a fixed-term contract does not differ in any way from remuneration under a standard open-ended contract.

All tariffs are mandatory.

Payment can be made both in cash and by bank transfer. The type of calculation is also indicated in the relevant clause of the employment contract.

sick leave

Paying sick leave for an employee under a fixed-term contract is considered the responsibility of the manager.

If an employee has worked for more than 6 months, then sick leave is calculated based on the standard scheme.

If, however, an employee arranged under a temporary contract worked for less than 6 months, then the code in sick leave - 46.

The maximum days for which payment is due in this case is 75.

Compensation for unused vacation days

accrued on the days worked by the employee in compliance with the general conditions:

• If the hours worked are not a whole month, but are the majority of it, then the calculation is made from the full month.
• If the time worked is less than a month, then compensation is not charged for this time.

Taxation

Taxation for employees hired under a temporary contract is identical with the application of a single tax to employees with an indefinite contract.

If a temporary worker has worked for less than a year, then the single tax minus the time when work was not carried out.

The same requirements apply to personal income tax certificates as to documents of permanent employees.

Indexing

Indexing can be established only by agreement of the parties and is not the responsibility of the manager.

If, by agreement of the parties, indexation is provided, then this clause must be included in the text of the agreement.

Extension

A fixed-term employment contract may be extended for a new term.

Terms

Prolongation of a temporary contract is possible if it is issued:

• with athletes;
• pregnant women;
• employees of a higher educational institution (when winning a competition for a position).

When extending a temporary contract, an appropriate annex is drawn up, which indicates additional activity or a new expiration date.

Despite the extension of the temporary contract, the total period cannot exceed a period of five years.

If the extension provides for a longer period, then it is unacceptable. In this case, there can only be a renegotiation of the document.

Order

Immediately after writing and signing an additional agreement to the temporary contract, an appropriate order is issued (form T1 or T1a).

This order must specify the extension period.

Example:

Additional agreement

If you wish to extend the temporary contract before the end of its term, an additional agreement is filled out.

If a change in conditions is implied, then this must be written in the document. It is also worth indicating the period of validity of the additional agreement.

Below is an example of this document:

Termination

Termination of a fixed-term employment agreement must also be carried out in accordance with certain legal requirements.

In this case, its validity period is terminated, and the employee is fired. In this case, termination is possible both after the expiration of the contract, and ahead of schedule.

Employee initiative

Dismissal under a fixed-term contract at the request of an employee is permissible.

Three days before the desired dismissal, the employee must notify the employer in writing.

For example, Antonov was hired under a fixed-term employment agreement, but after some time he received a better offer and decided to change jobs. In this case, the termination of the employment agreement is carried out at the initiative of the employee. He must only notify the employer of his intention to change jobs.

Employer initiative

The employer has the right to dismiss the employee, issued under a temporary employment contract, in case of non-fulfillment of labor duties by him.

However, they cannot simply dismiss an employee, for this there must be reasons that are provided for in the legislation.

Dismissal of a pregnant woman and a mother on parental leave

Dismissal of a pregnant employee is allowed only upon liquidation of the organization/enterprise.

The rest of the reasons for dismissal are considered invalid.

Women on parental leave may be fired when a key employee exits.

Documentation of dismissal

Upon dismissal of an employee, certain documents must be drawn up.

Notification

Notice of dismissal can be issued in any order. It is transferred directly to the dismissed employee by the personnel department specialist.

The indication of the reason for dismissal is considered mandatory.

The notification is issued in two copies, one of which is transferred to the employee, and the second to the employer.

Below is an example of such a notification:

Order

After signing the notification by the employee, an order is drawn up for dismissal, which indicates the reason (termination of the fixed-term contract, failure to fulfill official duties etc.).

Below is an example of such a document:

Payments and compensation

All settlements with an employee under a fixed-term contract upon dismissal are made according to the standard scheme.

The settlement with the dismissed employee must be made on the last working day. On this day, he is also given a completed work book.

FAQ

Below are answers to frequently asked questions regarding a fixed-term employment agreement.

Is it possible to transfer from an open-ended to a temporary contract?

This process is regulated by the Labor Code of the Russian Federation.

Transfer from an open-ended work regime to a fixed-term contract is allowed only with the agreement of the employee himself.

Is it possible to conclude with an IP?

Yes, you can. Conclusion of a temporary employee contract with individual entrepreneur possible subject to the standard scheme of registration of such an agreement.

How many times can you apply with the same employee?

The legislation does not provide for restrictions on the number of fixed-term contracts concluded with the same employee.

However, when applying to the court, it can be recognized as indefinite.

In what cases is a medical examination required before hiring?

Mandatory medical examination must pass:

• minors;
• workers engaged in hazardous or heavy work;
• food industry workers, employees of a children's institution, trade;
• shift workers;
• specialists sent to work in the Far North;
• sports workers;
• persons participating in activities during the movement of the train;
• employees of customs authorities;
• rescuers and judges;
• employees of educational institutions;
• medical workers.

Which is better - a contract or a fixed-term contract?

If regular activities are supposed to be performed, then it is better to conclude an employment contract. In the case when the activity is of a one-time nature, it is more expedient to draw up a work contract.

It follows from the above that the current legislation carefully regulates not only the procedure and rules for concluding a fixed-term employment agreement, but also the procedure for terminating it.

E.A. answered the questions. Shapoval, lawyer, Ph.D. n.

We conclude, extend and terminate a fixed-term employment contract

Mentioned in the article judgments can be found: "Judicial practice" section of the ConsultantPlus system

A fixed-term employment contract may be concluded if, taking into account the nature of the work or the conditions for its performance, it is impossible to conclude an agreement for an indefinite period. Art. 58 Labor Code of the Russian Federation. And to terminate such an agreement, it is enough to wait for the expiration of its term (of course, in the absence of other grounds). But not everything is as simple as it seems. Here are answers to the most common questions regarding such contracts.

A fixed-term employment contract with a pensioner is possible

A.N. Gladysheva, Samara

We offered a pensioner entering a job to conclude a fixed-term employment contract. But it requires the execution of a contract for an indefinite period. Do we have the right to insist on a fixed-term employment contract just because he is a pensioner?

: It is possible to conclude a fixed-term employment contract for a period of up to 5 years only if the pensioner himself agrees to this articles 58, 59 of the Labor Code of the Russian Federation. True, pensioners often appeal against the legitimacy of concluding fixed-term employment contracts with them. The courts take the side of the employer if the pensioner signed an employment contract containing a condition on its term, thereby expressing agreement with such a condition. Cassation ruling of the Rostov Regional Court dated April 25, 2011 No. 33-5663; Determination of the Moscow Regional Court dated November 17, 2011 No. 33-25523. But if the pensioner proves that consent to the conclusion of the contract was given involuntarily, then the court recognizes the contract as concluded for an indefinite period. clause 13 of the Decree of the Plenum of the Supreme Court of March 17, 2004 No. 2; Clause 3 of the motivational part of the Definition of the Constitutional Court of May 15, 2007 No. 378-O-P.

It should also be borne in mind that the unwillingness of a pensioner to conclude a fixed-term employment contract is not a basis for refusing employment. In such a situation, the employer will have to conclude a contract for an indefinite period.

In small businesses, a fixed-term contract can be concluded with any employee

M.I. Mavlyanova, Taman

We have 7 people in our company. Can we conclude fixed-term employment contracts with all employees?

The employer is a small business entity is an organization or entrepreneur, the number of employees of which does not exceed 35 people, and in the field retail And consumer services- 20 people Art. 59 Labor Code of the Russian Federation.

: You can conclude a fixed-term employment contract with any employee if articles 58, 59 of the Labor Code of the Russian Federation:

• your company is a small business entity;
• the employee agrees to conclude a fixed-term employment contract for up to 5 years. But do not forget to indicate in the contract e Art. 57 of the Labor Code of the Russian Federation:

The term for which it is concluded;

basis for his conclusion. In your case, this is part 2 of Art. 59 of the Labor Code of the Russian Federation.

The condition of the term in the contract for the performance of specific work

NOT. Maxaim Trankova, Mozhaisk

We need to hire employees for the duration of a certain project. How can we indicate the term of the contract if the end date of this project is not yet known?

: In the employment contract, you need to indicate for which particular project the employee is hired. And as a period, indicate that the contract was concluded before the completion of the project (without specifying a specific date) Art. 59 of the Labor Code of the Russian Federation; Appeal rulings of the Moscow City Court of July 16, 2012 No. 11-14184, of May 14, 2014 No. 33-11227 / 2014.

1.5. The employment contract is valid until the completion of work on project No. 20-1, related to the fulfillment by the Employer of obligations under the contract dated 06/01/2015 No. 23/10, concluded with Design LLC.

But you must have documents confirming the existence of the project and the end of its validity. Appeal ruling of the St. Petersburg City Court dated June 10, 2014 No. 33-7964/2014. Otherwise, the employee will be able through the court to retrain the employment contract into an open-ended one.

When the project comes to an end, the date of its completion will become clear. 3 calendar days before this date, notify the employee about dismissal due to the expiration of the employment contract and Art. 79 Labor Code of the Russian Federation.

Work for up to 2 months is always temporary

I.Yu. Duyunova, Novorossiysk

We want to hire an employee to replace the main employee during a rather long vacation. What kind of fixed-term contract to conclude with him?

: If the planned vacation of the main employee is less than 2 months, you need to conclude a fixed-term employment contract with the replacement employee for up to 2 months in Art. 289 of the Labor Code of the Russian Federation. Then you cannot set a probationary period for a new employee when hiring, and for the time worked you will have to provide leave (or pay compensation for leave) at the rate of 2 working days for each month of work articles 289, 291 of the Labor Code of the Russian Federation.

If the vacation of the main employee lasts 2 months or more, then conclude a fixed-term employment contract with the new employee for the duration of the vacation of the main employee (for a period of 2 to 6 months) Art. 58 Labor Code of the Russian Federation. Then everything will be exactly the same for him as for the rest of the workers. That is, you can set him a trial period, but only up to 2 weeks Art. 70 of the Labor Code of the Russian Federation, and leave for hours worked (or compensation for unused leave upon dismissal) to provide in calendar days Art. 115 Labor Code of the Russian Federation.

A migrant’s patent is not a reason to conclude a fixed-term contract with him

S.A. Belonogov, St. Petersburg

We hire a citizen of Moldova with a patent. Do we think that a contract with him can be concluded only for the duration of the patent?

: The fact that you hire a foreigner with a patent that is valid for a certain period is not a basis for concluding a fixed-term employment contract, since there is no such basis in the Labor Code of the Russian Federation articles 58, 59 of the Labor Code of the Russian Federation. As with Russians, a fixed-term contract with migrants is concluded if the nature and conditions of work do not allow concluding a contract for an indefinite period articles 58, 59 of the Labor Code of the Russian Federation. After the expiration of the patent, the migrant worker must be removed from work Art. 327.5 of the Labor Code of the Russian Federation. If the employee does not renew the patent, then after 1 month from the expiration date of the patent, you simply dismiss him p. 5, part 1, part 2, art. 327.6 of the Labor Code of the Russian Federation.

Can a fixed term contract be extended?

E.A. Tereshchenko, Ulyanovsk

Taking into account the nature of the work, we have concluded a fixed-term employment contract with the employee for a period of 1 year. Can we extend the contract with the employee by changing the term of the contract?

: There is no definite answer to this question. There is an opinion that before the expiration of the employment contract with the employee, it is possible to conclude an additional agreement to the employment contract to change the term of its validity, if the circumstances in connection with which the contract was concluded for a certain period have not disappeared. Moreover, according to the courts, the extension of the term of the contract in such a situation does not indicate the repeated conclusion of a fixed-term employment contract, which entails for the employer the recognition of the employment contract as concluded for an indefinite period. Appellate ruling of the Supreme Court of the Chuvash Republic dated December 23, 2013 No. 33-4638/2013; Determination of the St. Petersburg City Court dated October 18, 2010 No. 33-14178 / 2010.

You can formulate a condition for extending the term of an employment contract as follows.

The employee and the employer agreed that the employment contract No. 3 dated 01.01.2014 was concluded for a period until 01.01.2016.

But there are courts that believe that the extension of a fixed-term employment contract violates the rights of the employee. And they recognize the extended fixed-term employment contract concluded for an indefinite period Determination of the Moscow City Court dated February 6, 2012 No. 4g / 3-114 / 12.

Therefore, when deciding to extend the term of an employment contract, it makes sense to familiarize yourself with the judicial practice in your region in similar cases.

Not all summer jobs are seasonal

G.A. Panarina, Shadrinsk

For the summer (June to August) we hired a vendor to sell vegetables and fruits on the street. Do we understand correctly that this is a seasonal job?

: Not. Seasonal work should be due to the peculiarities of climatic and other natural conditions (for example, rafting and logging; heating season in housing and communal services). Types of seasonal work are determined in special lists contained in Art. 293 of the Labor Code of the Russian Federation:

• in sectoral (intersectoral) federal social partnership agreements х see, for example, clause 2.A of the Industry Agreement on the organizations of the timber industry complex of the Russian Federation for 2015-2017. ; clause 3.7 of the sectoral tariff agreement in the housing and communal services of the Russian Federation for 2014-2016.;
• in regulatory legal acts, including in acts former USSR acting to the extent not inconsistent Labor Code RF see, for example, the List, approved. Decree of the Government of 04.07.2002 No. 498; Art. 423 of the Labor Code of the Russian Federation; List of seasonal works, approved. Decree of the NCT of the USSR dated 11.10.32 No. 185.

You cannot set a probationary period of more than 2 weeks for a seasonal worker; during the time of work, he will need to be granted vacation (or pay compensation for vacation) at the rate of 2 working days for each month of work articles 70, 295 of the Labor Code of the Russian Federation.

Work as a seller does not apply to seasonal types of work, so you need to conclude a fixed-term employment contract with an employee for a period from 06/01/2015 to 08/31/2015 to perform obviously defined work. articles 58, 59 of the Labor Code of the Russian Federation.

What day to dismiss a temporary employee if the main employee left the care leave

I.Yu. Tupeeva, Kazan

We have a fixed-term contract with an employee for the duration of parental leave of the main employee. The main worker went to work without warning. When to fire a temporary worker, because we did not warn her about the dismissal?

: It all depends on how the condition on the term is formulated in the contract with the temporary worker. If the contract states that it is concluded for the period of temporary absence of a particular employee, then the day of dismissal (the last day of work) of the temporary employee will be the day preceding the day the main employee leaves maternity leave Art. 79 of the Labor Code of the Russian Federation; Letter of Rostrud dated October 31, 2007 No. 4413-6; ; Appeal decision of the Tula Regional Court dated November 27, 2014 No. 33-3260.

If the contract with a temporary worker states that it terminates when a particular employee returns to work, then the day of dismissal (the last day of work) of the temporary worker will be the day the main employee leaves maternity leave. Art. 79 of the Labor Code of the Russian Federation; Appeal rulings of the Krasnoyarsk Regional Court dated 06/09/2014 No. 33-5452 / 14A-09; Moscow City Court dated April 16, 2015 No. 33-6310/15.

In any case, you are not required to notify the temporary employee of the dismissal and Art. 79 of the Labor Code of the Russian Federation; Letter of Rostrud dated October 31, 2007 No. 4413-6; Appeal ruling of the Chelyabinsk Regional Court dated July 17, 2014 No. 11-6967/2014. But for the future - ask the main workers to inform you in advance about leaving work so that you can warn temporary workers about dismissal 3 calendar days in advance.

Is it possible to dismiss a temporary employee if the main employee quit without leaving parental leave

L.A. Efremova, Togliatti

We have concluded a fixed-term employment contract with the employee for the period of maternity leave and maternity leave of the main employee. The main employee resigned of her own free will, without leaving the vacation. Do we need to fire a temporary employee at the end of the vacation of the main employee?

: If the main employee quit during the period of parental leave without a work permit, you have no reason to dismiss the temporary employee. After all, the basis for terminating an employment contract with a temporary worker has disappeared. And you just have to change the condition on the term of the contract by concluding an additional agreement with the temporary worker to the employment contract with Art. 58 of the Labor Code of the Russian Federation; Letter of Rostrud dated November 20, 2006 No. 1904-6-1.

It is possible to formulate a condition on the transformation of a fixed-term contract into a contract for an indefinite period as follows.

The employee and the employer agreed that the employment contract No. 10 dated April 30, 2013 was concluded for an indefinite period.

But if the main worker issued a job and then quit of her own free will, then the temporary worker must be fired due to the expiration of the employment contract and Appeal ruling of the Omsk Regional Court dated June 27, 2012 No. 33-3641/12.

A temporary worker on sick leave can be fired

ON THE. Kisileva, Pskov

Can we dismiss an employee due to the expiration of the employment contract concluded for 1 year, if he is sick and will not be at work on the last day of the employment contract?

: Yes, you can. After all, it is forbidden to dismiss during illness only at the initiative of the employer. And dismissal due to the expiration of the employment contract does not apply to such grounds. p. 2 h. 1 art. 77, articles 79, 81 of the Labor Code of the Russian Federation; Determination of the Moscow City Court dated May 24, 2011 No. 33-15449.

But the fact that the employee is sick does not relieve you of the obligation to notify him of the upcoming dismissal and Art. 79 Labor Code of the Russian Federation. You can send him such notification by mail or telegram. Some courts, in the absence of such notice, reinstate the employee at work. Determination of the Moscow City Court dated February 14, 2011 No. 33-2941.

If on the day of dismissal (the last day of the term of the employment contract) the employee does not come to work, send it to his home address by mail by registered mail notification of the need to report to the employer for work book or agree to send it by mail Art. 84.1 of the Labor Code of the Russian Federation. On this day, you also need:, part 1 of Art. 7 of the Law of December 29, 2006 No. 255-FZ.

The allowance must be accrued no later than 10 calendar days from the date of submission former employee disability sheet. And you must pay him the allowance on the next day after the accrual of the allowance, set for the payment of salaries. Part 1 Art. 15 of the Law of December 29, 2006 No. 255-FZ.

When to fire an employee if the employment contract expires on a weekend

Fixed term contract ends on the weekend. What day to fire an employee?

: In such a situation, the end date of the term is considered to be the next business day following it Art. 14 Labor Code of the Russian Federation.

Is it possible to fire a former student due to the expiration of the employment contract?

S.A. Bragin, Vologda

Our company hired a full-time student on a fixed-term contract. Before the expiration of the employment contract, he was expelled from the university. Will we be able to fire him later due to the expiration of the employment contract?

: If the only reason for concluding an employment contract was that the employee is studying full-time, then after being expelled from the university, it is impossible to dismiss him due to the expiration of a fixed-term employment contract. After all, you no longer have the basis that served as the reason for concluding a fixed-term employment contract Art. 59 Labor Code of the Russian Federation.

A fixed-term employment contract becomes indefinite, which is formalized by an additional agreement to the employment contract. Above we gave an example of how you can formulate a condition on the term of the contract.

Is it possible to dismiss an employee who did not go to work on the last day of the contract term?

E.V. Mishukov, Astrakhan

3 days before the expiration of the employment contract, we warned the employee with whom a fixed-term employment contract was concluded about dismissal. He didn't show up for work the next day. Can we fire him if he doesn't show up on the last day of the contract, or should we wait until it's clear why he didn't show up?

: You can fire an employee on the last day of the term of the employment contract. Art. 79 Labor Code of the Russian Federation.

If you don’t do this, but you find out why he didn’t go to work, then the fixed-term employment contract will turn into an employment contract for an indefinite period Art. 58 Labor Code of the Russian Federation. And then you will not be able to dismiss the employee due to the expiration of the employment contract. p. 2 h. 1 art. 77 Labor Code of the Russian Federation. And you will have to look for other grounds for dismissing an employee as well. Determination of the Moscow Regional Court of August 18, 2011 No. 33-18584.

Is it possible to fire a “fixed-term” employee if the contract does not specify a period

K.A. Vakhteev, Smolensk

We hired an employee to carry out reconstruction work, but did not indicate this in the contract, and also did not indicate the duration of the contract. Can we dismiss an employee at the end of the reconstruction due to the expiration of the employment contract?

: If the term of its validity is not specified in the employment contract, then the contract is considered concluded for an indefinite period Art. 58 Labor Code of the Russian Federation. That is, it is impossible to dismiss an employee in connection with the expiration of the employment contract. You can dismiss him only on the general grounds provided for permanent employees.

We count the days of unused vacation if the fixed-term contract is terminated before the expiration of 2 months

ON THE. Nakul, Ryazan

The employee was hired during the leave of the main employee to care for the child until the child reaches the age of 3 years. But a month and a half after going on vacation, the main worker returned to work. For which days to calculate compensation for a temporary worker for vacation: for working days or for calendar days?

: The fact that the contract with a temporary worker terminated already one and a half months after the start of the vacation does not mean that it was originally concluded for a period of up to 2 months. Therefore, you need to calculate compensation for unused vacation for calendar days, and not for working days, as when concluding an agreement for up to 2 months in articles 120, 291 of the Labor Code of the Russian Federation.

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

Terms and basic concepts

A fixed-term employment contract is a document under which an employee will work for a certain period of time. The boss in this case concludes that after the expiration of this period, the employment relationship will be completed.

People decide to fix such an agreement due to the occurrence of certain reasons, for example, if the job seeker is not entitled to conclude an open-ended agreement:

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

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

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

If you want to see the full list of professions, all information can be found in articles 58 and 59 Labor Code of the Russian Federation.

Sample document

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

In what cases should such a form be drawn up:

• for the period of replacement of an absent employee who is still assigned to his former place of work;
• for the period when it will be necessary to perform temporary work;
• seasonal work;
• if a person is transferred to work abroad;
• for the implementation of work that goes beyond ordinary activities employer;
• with people who are going to enter into a contract with a company created for a short period of time;
• with employees who are hired to carry out specific work in situations where its completion cannot be set by a specific date;
• for the implementation of work directly related to the practice, or additional vocational education in the form of an internship;
• in case of employment in the bodies state power And local government, in political parties and other public associations;
• with people who were redirected by the public health protection authorities to work of a non-permanent nature and public works;
• with persons who are going to undergo ACS;
• other situations prescribed by law.

Positive and negative characteristics

For the employee, the following positive traits were identified:

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

However, there are also negative properties:

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

As for the person who hires employees in connection with the execution of a temporary contract, then the employee’s pregnancy may become a minus for him, and, accordingly, removal from office for a while. In this situation, the contract cannot be terminated only if the organization ceases to exist.

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

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

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

Consider a fixed-term employment contract and its conditions:

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

The main features of the contract by agreement of the parties

Dismissal in this case will have several nuances:

1. Article 78 of the Labor Code of the Russian Federation contains information that the document may terminate at any time. Thus, an employee can be fired, even if at that time he is on vacation or on sick leave. With the help of such a basis, the boss can carry out the reduction as quickly as possible.
2. The employee in this case also has a number of advantages, since there is no need to notify your boss within two weeks that you are leaving the place of work. The employee will receive payments immediately, and not in part. An additional plus is that upon dismissal, it will not be necessary to discuss this topic with trade union organizations (81 of the Labor Code of the Russian Federation).

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

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

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

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

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

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

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

How to hire staff on a fixed-term employment contract

Let's take a closer look at the stages of registration of the document in question:

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

Probation

Article 70 of the Labor Code of the Russian Federation contains a complete list of people for whom a probationary period is provided. This includes persons who:

• draw up a contract for up to 2 months;
• passed through the competition;
• receive an elective salary;
• persons of the ACS;
• engaged in raising their children up to 1.5 years and pregnant women;
• graduates who have just had a graduation, and now they get a job on a diploma, as well as students who were in practice at this enterprise;
• have not reached the age of 18;
• were transferred from another boss.

1. Employees who will be at the enterprise within 2-6 months - 2 weeks.
2. Managers, deputies, chief accountants - 0.5 years.
3. Employees who perform certain duties in accordance with their position on public service– month-6 months-year.
4. In other cases, 3 months is set.

Features when working with pensioners

The boss can conclude an agreement with the pensioner for a certain period. However, there is a nuance here: if you now have an open-ended contract, but upon reaching retirement age, a citizen wants to transfer the contract to an urgent type, this is not necessary.

Holidays

A vacation or a sick leave person receives according to the basic rules, which in no way depend on the time period of the contract.

How to fire a pregnant woman

Article 261 part 2 of the Labor Code of the Russian Federation states that during this period in a woman's life it is impossible to terminate a fixed-term employment contract, even if its term for concluding a fixed-term employment contract has expired.

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

Here, too, there is a small nuance: if the girl was a replacement for an absent employee, then after his release, the expectant mother will have to pick up another open vacancy. If it is not possible to make a transfer, then it is necessary to provide written refusal from a worker.

How long is a fixed-term contract?

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

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

Early termination may occur in the following situations:

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

Is there a way to convert a fixed-term contract to an open-ended one?

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

Sample of an indefinite employment contract

Features of a temporary employment contract

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

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

As we can see, a fixed-term employment contract requires careful study of all aspects. Extension of a fixed-term employment contract is possible only in certain cases, which we considered earlier. Employment under a fixed-term employment contract can occur, but it is more profitable option for the employer rather than for the employee.

Interesting Facts

1. Temporary work is most often liked by students, housewives or retirees who want to earn extra money in their spare time.
2. Arbitrage practice shows that frequent re-closings are not in accordance with the law.
3. In the history of entrepreneurship, it happened that a business owner needed to liquidate a company in order to fire an objectionable expectant mother in accordance with the law, so as not to get into legal squabbles.