With whom and for how long can you conclude an urgent labor contract?

A fixed-term employment contract is drawn up in the cases established by law. If the contract is unreasonably concluded on certain period, then in judicial order it can be considered indefinite. On the grounds and rules for drawing up, as well as on the features of the termination of such an agreement, read on.

Grounds for concluding a fixed-term employment contract

An urgent employment contract is called, which regulates a specific deadline for the completion of labor relations between the parties (Article 58 Labor Code RF).

The grounds for concluding an employment contract for a fixed period can be divided into 2 groups:

Cases when only a temporary employment contract is drawn up (part 1 of article 59 of the Labor Code of the Russian Federation)	Cases when a temporary employment contract is drawn up by agreement of the parties (part 2 of article 59 of the Labor Code of the Russian Federation)
Performing the duties of a temporarily absent employee	Retirement by age
Carrying out duties abroad	Moving to work in an organization located in the Far North
Performance of seasonal work	Making an agreement with a full-time student
Temporary work for up to 2 months, etc.	Drawing up an agreement with the director, chief accountant, with their deputies, with the head of a branch or representative office, etc.

Important! The conclusion of a fixed-term employment contract under Part 2 of Art. 59 of the Labor Code of the Russian Federation is permissible only with the voluntary consent of both parties to the agreement (paragraph 2, clause 13 of the resolution of the plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). The will of persons not listed in Part 2 of Art. 59 of the Labor Code of the Russian Federation, when assessing the existing grounds for concluding a fixed-term employment contract, the judicial authority does not take into account (see the ruling of the Krasnoyarsk Regional Court dated November 28, 2012 in case No. 33-10385 / 2012).

A temporary employment contract concluded in the absence of sufficient grounds identified in court can be qualified as open-ended with all the ensuing legal consequences (including reinstatement of the dismissed person, payment of appropriate compensation, etc.).

A sample fixed-term employment contract can be downloaded from the link: Fixed term employment contract - template.

Recognition by the courts of fixed-term employment contracts as concluded indefinitely: common situations

The judicial authority recognizes a temporary employment contract as valid indefinitely in the following cases:

1. The grounds for concluding an agreement are not spelled out (paragraph 10 of article 57 of the Labor Code of the Russian Federation). In order to avoid qualifying the contract as open-ended, the employer must prove that the grounds regulated by law actually existed, although they were not spelled out. .2015 in case No. 33-3390/2015.
2. The contract is concluded for a certain period on the grounds regulated by par. 1-13 Art. 59 of the Labor Code of the Russian Federation, but in fact the functionality of the worker does not go beyond the standard activities of the organization (determination of the KhMAO-Yugra court dated December 6, 2011 in case No. 33-5544 / 2011).
3. Temporary employment contract signed with the head structural unit legal entity in the absence of other grounds, regulated by Art. 59 of the Labor Code of the Russian Federation. For the head of the structural unit, the rules of par. 21 art. 59 of the Labor Code of the Russian Federation do not apply (see the ruling of the Moscow City Court dated December 18, 2013 in case No. 4g / 8-12759).
4. An employment contract for a fixed period was concluded under duress (paragraph 3, clause 13 of resolution No. 2). Usually, the court interprets the very fact of signing a contract by a person as his voluntary conclusion (for example, the decision of the Supreme Court of the Republic of Tatarstan dated 01.12.2014 in case No. 33-16227 / 2014). In the situation under consideration, witness testimony can be cited as evidence of the forced signing of the contract (see the ruling of the Voronezh Regional Court dated January 25, 2011 No. 33-340).

Conclusion of a temporary employment contract: determine the term

Important! The longest period for which an employment contract can be concluded, according to general rule is 5 years (Article 58 of the Labor Code of the Russian Federation).

The expiration of a temporary employment contract is tied to a specific date or the occurrence of certain circumstances. So, if a fixed-term employment contract was concluded for the performance of work, exact date the end of which cannot be ascertained, the contract will be considered terminated upon completion of such work.

Another option is when a fixed-term contract is signed with an employee who is hired by an organization created for a predetermined period or to achieve a set goal. In this situation, its termination is possible only in the event of the actual termination of the organization's activities without the transfer of its rights and obligations in the order of succession (clause 14 of Resolution No. 2).

Important! Identification of the fact of multiple conclusion of fixed-term employment contracts for a short period to perform similar labor functions gives the judicial authority the right to recognize such an agreement, taking into account other circumstances in each specific case, concluded for an indefinite period.

For example, according to the ruling of the Pskov Regional Court dated June 11, 2013 in case No. labor Relations were deemed to be established for an indefinite period.

In another situation, the court did not see in the fact of the repeated conclusion of fixed-term employment contracts with the same person a violation of the norms of the Labor Code of the Russian Federation, since the need for just such a formalization of labor relations was directly related to the specifics of the work (see the definition of the Armed Forces of the Republic of Sakha (Yakutia) dated November 16, 2015 in case No. 33-4168/2015).

Termination of a fixed-term employment contract

Important! The basis for the termination of a temporary employment contract is the expiration of its validity, depending on the date or event specified in it. The only exceptions will be situations where relations within the framework of the agreement de facto continue and none of the parties has expressed their intention to terminate them (clause 2, part 1, article 77 of the Labor Code of the Russian Federation).

The expiration of the term itself is recognized as the basis for the termination of relations within the framework of the relevant agreement. When resolving disputes, the courts indicate that the circumstances associated with the expiration of the contract cannot depend on the will of the employer. Consequently, the guarantees regulated by the Labor Code of the Russian Federation for employees whose dismissal is initiated by the second party to the contract, in cases of termination of fixed-term employment contracts on the grounds of paragraph 2 of Art. 77 of the Labor Code of the Russian Federation do not apply.

In this situation, the employee may be dismissed, including:

• during the period of temporary disability and vacation (determination of the Moscow Regional Court dated February 18, 2015 in case No. 33-3722 / 2015);
• while on parental leave (for example, the decision of the Irkutsk Regional Court dated November 19, 2014 in case No. 33-9495/14).

Note! The Labor Code of the Russian Federation provides pregnant employees with the right to apply to the employer with an application to extend the employment contract until the end of pregnancy or the end of maternity leave, if it was provided to her in the proper manner. The application must be accompanied by a medical certificate confirming the pregnancy. If these conditions are met, the employer cannot refuse to extend the term of the contract (paragraph 2 of article 261 of the Labor Code of the Russian Federation).

Labor relations in case of prolongation of the employment contract for a certain period or its transformation into an indefinite period

As mentioned above, a fixed-term employment contract can be transformed into an indefinite one if none of the parties to the legal relationship has filed a request to terminate the contract due to the expiration of its validity period and the employee has not stopped performing work after the date or event with which the termination was associated such an agreement (paragraph 6 of article 58 of the Labor Code of the Russian Federation).

Formally, the extension of a temporary employment contract is allowed by law in 2 cases:

• at the request of a pregnant employee in the framework of the norms of par. 2 tbsp. 261 of the Labor Code of the Russian Federation (the situation is discussed above);
• by written agreement of the parties in relation to a specialist in the pedagogical field, who is part of the teaching staff, elected to the position he fills by competition (paragraph 8 of article 332 of the Labor Code of the Russian Federation).

At the same time, Rostrud notes: the Labor Code of the Russian Federation assumes the admissibility of making adjustments to an employment contract, regardless of its type (fixed-term or indefinite), including in terms of changing its validity period (see letter dated 10/31/2007 No. 4413-6).

Conclusion! Thus, a fixed-term employment contract can be extended by drawing up an additional agreement. While there is no limit to the number of such renewals, maximum term each of them should not exceed 5 years.

The law establishes that a dismissed employee working under a temporary employment contract must be notified by the employer of the termination of the contract at least 3 days in advance (paragraph 1 of article 79 of the Labor Code of the Russian Federation). However, non-compliance by the employer with the regulations is not interpreted by the courts as a basis for recognizing the dismissal of an employee as illegal, and a fixed-term contract as transformed into an indefinite one (see the ruling of the Irkutsk Regional Court dated January 23, 2013 in case No. 33-450 / 13).

So, the conclusion of an employment contract for a certain period must have sufficient legal grounds. Otherwise, such an agreement will be recognized as indefinite. The grounds for concluding a temporary TD must be spelled out in the text of the document - otherwise, in the event of a dispute, the employer will have to prove their actual existence.

Violation by the employer of the procedure for notifying an employee of dismissal 3 days before the upcoming termination of a fixed-term employment contract in itself is not a basis for his reinstatement at work.

As a general rule, an employment contract is concluded with any employee who works in an organization. It regulates the wear between employer and employee.

One of the options for an employment contract with an employee is the conclusion of a fixed-term employment contract. When making it, it is worth considering the formalities that will help to avoid claims during the inspection by the labor inspectorate. These, in particular, are the specific period for which the contract is signed, as well as the grounds for its conclusion.

With whom to conclude?

Typically, a fixed-term employment contract is concluded in two cases. The first is when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation. For example, for the duration of the performance of the duties of an absent employee, for whom the place of work is retained (maternity leave).

A fixed-term employment contract must be concluded when performing temporary (up to two months) or seasonal work, when, due to natural conditions, it can only be done during a certain period, season.

Such an agreement is also concluded with employees sent to work abroad. You need to sign an agreement with them for a period not exceeding three years (Article 338 of the Labor Code of the Russian Federation). At the end of three years, the employment contract will have to be renegotiated for a new term.

Labor law obliges to sign fixed-term employment contracts when carrying out work that goes beyond the normal activities of the employer. For example, reconstruction, installation, commissioning and other works.

Need to know

A fixed-term employment contract can be concluded in two cases: by agreement of the parties and depending on the nature of the work performed.

With employees performing temporary (up to one year) work, it is also necessary to conclude a fixed-term employment contract. In particular, if this is work related to the expansion of production or the volume of services provided.

A fixed-term employment contract is also concluded with persons entering work in organizations created for a predetermined period (or when this period cannot be precisely determined), as well as for performing a predetermined job.

It is worth remembering that a fixed-term employment contract must be signed with personnel who are aimed at performing work directly related to internships and vocational training. The same story, when an employee is sent by the employment service authorities to work of a temporary nature or public works.

The second situation when the conclusion of a fixed-term employment contract is required is the performance of work without taking into account its nature and conditions of performance. For example, such an agreement is concluded with employees who work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people. For retail trade and consumer services, the minimum number is 20 people.

A fixed-term employment contract is concluded with old-age pensioners entering work, as well as with persons who, for health reasons, in accordance with a medical report, are allowed to work exclusively of a temporary nature.

Special rules

The maximum term for concluding a fixed-term employment contract is five years.

In addition, a fixed-term employment contract is concluded when the company is located in the regions of the Far North and equivalent areas, if the employment is associated with moving to the place of work.

A fixed-term employment contract can be concluded with heads, deputy heads and chief accountants of organizations, regardless of organizational and legal forms and forms of ownership.

The list of cases in which a fixed-term employment contract can be concluded is open, so it can also be concluded in other situations that are permitted by law, for example, when carrying out urgent work to prevent disasters, accidents or other emergencies. However, such an agreement must also contain information and mandatory conditions under which he is considered a prisoner. In particular, it is necessary to indicate the place of work, labor functions, information about the parties concluding the contract, and others (Article 57 of the Labor Code of the Russian Federation).

Term of imprisonment

A fixed-term employment contract is an agreement that defines its validity period (Article 59 of the Labor Code of the Russian Federation). This rule means that the contract must contain a specific period for which the employee is hired. Otherwise, the contract is automatically transferred to the category of perpetual.

The expiration of such an agreement may be the occurrence of certain events (for example, the employee who was replaced, came out of vacation or the end of seasonal work) or a certain date.

The maximum term of an employment contract is five years (Article 58 of the Labor Code of the Russian Federation). As for the minimum period, it is not regulated by law. It can be concluded for a month, for a week and even for one day. If a fixed-term employment contract is signed for one day, then the employer must have a justification for concluding such a contract. In this case, it is much more profitable to conclude civil law contracts (contract, paid services).

Repeated renegotiation of a fixed-term employment contract for a short period to perform the same labor function is a reason for retraining into a contract concluded for an indefinite period (Resolution of the Plenum Supreme Court RF dated March 17, 2004 No. 2).

However, if the employee replaced another employee and he went to work, then the current contract can be terminated with the “conscript” and, by agreement of the parties, a new fixed-term employment contract can be concluded.

Basis for conclusion

A fixed-term employment contract must contain the grounds on which it has the character of urgency. For example, this is the performance of seasonal work, in connection with which an employee is recruited for work for several months, or work abroad. Such circumstances should be listed in the employment contract. In the absence of sufficient grounds capable of qualifying the contract as urgent, the regulatory authorities will consider it unlawful to conclude it and establish it as a contract concluded for an indefinite period.

Therefore, the employment contract must contain the reason (grounds) and the period for which it is concluded.

Registration

When hiring under a fixed-term employment contract in the order for hiring form No. T-1 or T-1a you need to specify the expiration date of its validity or an event that will serve as the basis for its termination, for example, the employee's exit from parental leave.

Attention

Payments under a fixed-term employment contract are subject to both personal income tax and contributions to funds in the general manner.

In addition, in the section “Conditions for employment, nature of work”, it should be indicated that the employee is hired for a certain period, and (or) the performance of specific work. For example, “under a fixed-term employment contract in connection with the assignment to work in Amsterdam” (see. exemplary sample filling out an order for employment under a fixed-term employment contract).

The nuances of work

Having concluded a fixed-term employment contract with an employee, the accountant of the organization must comply with certain conditions. So, if none of the parties demanded the termination of such an agreement due to the expiration of its validity period and the employee continues to work, the condition on the urgent nature of the employment contract becomes invalid. Then the employment contract is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).

After the expiration of a fixed-term employment contract during the woman's pregnancy, the employer is obliged, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract (until the end of pregnancy). Such an employee, at the request of the employer, is required to submit a medical certificate confirming pregnancy once every three months.

Employees working under a fixed-term employment contract are prohibited from establishing a probationary period (Article 289 of the Labor Code of the Russian Federation).

Employees with whom an employment contract has been concluded for a period of up to two months, with their written consent, may be involved in work on weekends and non-working days. holidays. Work for these days is compensated in cash at least twice. Recall that, as a general rule, for work on a weekend or non-working holiday, an employee can be provided, at his choice, with either monetary compensation or the right to an additional day of rest (Article 153 of the Labor Code of the Russian Federation). However, "conscripts" cannot take another day for rest, but only monetary compensation.

An employee who has concluded an employment contract for a period of up to two months is not paid severance pay upon dismissal. However, otherwise may be established by agreement of the parties by a collective or labor agreement or federal laws (Article 292 of the Labor Code of the Russian Federation).

"Conscripts" are provided with paid vacations or compensation is paid upon dismissal at the rate of two working days per month of work (Article 291 of the Labor Code of the Russian Federation).

An employee who has concluded an employment contract for up to two months, in the event of its termination, is obliged to writing notify the employer three calendar days in advance. If the employer plans to dismiss such an employee in connection with the liquidation of the organization, downsizing or staff, it is necessary to notify the employee in writing against signature also at least three calendar days in advance (Article 292 of the Labor Code of the Russian Federation).

Yu.L. Ternovka, expert editor

Gavrikova I. A., senior scientific editor magazine "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 legislation provides for two types of employment contract. According to part 1 of article 58 of the Labor Code of the Russian Federation, contracts can be concluded:

For undefined period;

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

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

Table.

* 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, when labor dispute this fact will be qualified as a violation of the rights of the employee. 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 is set out in paragraph 4 of part 2 of article 57 of the Labor Code of the Russian Federation.

Mandatory terms of an employment contract

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

place of work;

labor function;

date of commencement of work;

salary;

mode of operation;

compensation;

the nature of the work;

condition on compulsory social insurance, etc.

How to determine the terms of the contract

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

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

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

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

Example 1

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

Decision

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 in 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?

Decision

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

"2. Contract time

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

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

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

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

Probation

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 supplementary agreement to an employment contract. It is possible to give the following wording in it: “To state clause No. ... in the following wording: “This employment contract is concluded for an indefinite period””.

Fixed term contract with pensioner

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

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

Termination of a fixed-term employment contract

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

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

Dismissal order

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

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

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

Entry in the workbook

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

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

On a note

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

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

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

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 accounting of payments upon dismissal

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

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

Upon dismissal, the employee is paid wages for the time 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 Russian Federation, Fund social insurance of the Russian Federation, the Federal Compulsory Medical Insurance Fund and Territorial Compulsory Medical Insurance Funds).

Sums wages and compensations 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 accidents at work 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 related to expenses for ordinary activities (clause 5 PBU 10/99).

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

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

DEBIT 70 CREDIT 68 sub-account "Personal income tax settlements" Dismissal of a seasonal worker // Salary, 2010, No. 7. There are also examples of filling out documents. - Note. ed.

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 work schedule 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 vacation 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 condition for establishing a probationary period is subject to its own rules (Article 70 of the Labor Code of the Russian Federation).

Employment for a fixed period, as well as in case of demon fixed-term contract, issued by order. The content of the order must comply with the data of the employment 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, internships;
• election to an elected body, to an elective position or employment providing for the activities of such bodies;
• temporary or public 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 the 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 2 fixed-term contracts can be concluded with him (one of which will be an agreement with a part-time worker) or amend 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 be placed on 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 at the initiative of the employee, due to a change essential conditions contracts in connection with disciplinary action 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 binding form, but implies the obligation to include 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 often use a general form for them, providing for 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 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.

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

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

for example when it is impossible to conclude an indefinite contract, which is usually associated with:

• worker who occupied vacant position Earlier, she went on maternity leave. The place behind it is reserved in accordance with the Law;
• on the seasonal work . There is a need for harvesters, drivers of summer routes, auxiliary workers of ski slopes. The business is restricted by the weather or natural conditions, therefore, maintaining a full staff year-round is not economically feasible;
• the job for which recruitment is open is not permanent in principle and the need for it lasts no more than two months. For example, a company plans to run a promotion and needs promoters who will offer prospective buyers flyers with the address of a new trading house or office;
• if carried out promotions possible at least periodically, then there are activities that generally go beyond current activities. Reconstruction of the premises is required, the development of a logo is needed new company, site creation, a lawyer to consider the case in the Arbitration Court. Such a task can be entrusted to a specialized company, or it can be performed by newly recruited employees.

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

When it is possible to conclude an open-ended contract, but for reasons of rotation, the requirements of the law for the employment of certain categories of citizens or working conditions, it is desirable to limit it to the end date. Wherein both parties must agree on the term of the contract.

Examples of such a voluntary restriction:

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

The subtleties of the conclusion

What is the difference between a fixed-term employment contract and a regular employment contract? At the end of the fixed-term employment contract, the employee is subject to dismissal. This is the difference between a fixed-term employment contract and a regular “permanent” employment contract. If the term of a fixed-term employment contract is not stipulated - you are employed “permanently”, your dismissal is not expected.

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

Duration

How long is a fixed-term employment contract? What is the maximum term? And what is the minimum?

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

This is:

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

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

Registration of a work book

If the employment contract is concluded for a certain period, upon admission it is done in the usual manner and does not contain references to the period ( Letter of Rostrud No. 937-6-1 of 04/06/2010). Violation this rule entails the administrative responsibility of the employer under article 5.27 of the Code of Administrative Offenses of the Russian Federation.

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

Since the wage fund for temporary and permanent employees does not differ, the enterprise deducts mandatory payments to social insurance funds for everyone, and the length of service for all employees is calculated according to the same rules.

Leave and compensation

The procedure for granting annual leave does not differ from the usual one, employees are granted a vacation of 2 days for each month of work based on a six-day working week (Articles 291, 295 of the Labor Code of the Russian Federation, Letter of the Ministry of Labor N 625-BB ​​of 02/01/2002).

Compensation for unused vacation charged in the usual way, however, here you need to remember that if the employment is less than 15 days, it is still valid article 35 of the Rules of the NCT of the USSR on regular and additional holidays No. 169 of 04/30/1930"In calculating... surpluses of less than half a month are excluded from the calculation, and surpluses of at least half a month are rounded up to the full month."

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

But leave to care for a child until he reaches one and a half years provided only for the duration of the contract ().

You can download a sample fixed-term employment contract.

"Pros and cons"

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

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

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

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

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

If capital work is carried out in an economic way, if a permanent specialist has taken a sick leave or gone on vacation, and the labor market allows you to attract additional labor resources Why not take advantage of the proposed legislation?

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

Passed stage

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

Consider typical cases:

• . The employee is given the final payment and returned employment history with the entry "at the end of the term ...". Everything, as usual, if the enterprise complied with the conditions of the conclusion and had legal grounds for this;
• – if a woman is pregnant or caring for a baby under 1.5 years old;
• the reduction of an employee under a fixed-term employment contract is possible by decision of the employer, even if the contract has not expired. The employee is paid compensation, dismissal allowance within two months;
• transfer to a permanent job(by agreement of the parties or oversight of the personnel service);
• early dismissal at the initiative of one of the parties - similar to generally accepted procedures;
• re-decoration. Arbitrage practice shows that repeated re-arrangements violate the Law and the employee will have the right to appeal the next dismissal on these grounds with reinstatement.

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

Useful video

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