home Work and education An employment contract concluded for a fixed period. Fixed-term employment contract: what are its features

An employment contract concluded for a fixed period. Fixed-term employment contract: what are its features

Urgent labor contract is concluded only in cases 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: without fail 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 a company that is created for a predetermined time to perform certain work;
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- 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 a disputable situation arises, 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.

The conclusion of an employment contract for a certain period is quite convenient for the employer, because upon termination labor relations no special reason for dismissal is required. For an employee, on the contrary, in most cases this is a necessary measure.

Nevertheless, the Labor Code establishes quite a lot of grounds for concluding a fixed-term employment contract. And if the employer still “does not have enough” grounds and he concludes such an agreement in violation of the law, as a result, the employee can be reinstated after dismissal, and the agreement can be reclassified as an open-ended one.

In the article, we will consider in which cases the conclusion and termination of a fixed-term employment contract are lawful, and in which they can be declared illegal.

Grounds for conclusion

The main rule for an employer concluding a fixed-term employment contract: all the grounds for concluding it are established by law, the Labor Code and other laws, for example, Law of the Russian Federation dated April 19, 1991 No. 1032‑1 “On employment in Russian Federation"(hereinafter - Law No. 1032-1), Federal Law No. 79-FZ of July 27, 2004 "On the State Civil Service of the Russian Federation".

In the Labor Code, these grounds are divided into two groups. The first includes specific grounds for concluding such an agreement - 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 (part 1 of article 59, 332, 348.4). And the second group - when a fixed-term employment contract can be concluded by agreement of the parties without taking into account the nature of the work to be done and the conditions for its implementation (part 2 of article 59). Let's present these bases in the table.

Grounds for concluding a fixed-term employment contract
Mandatory (part 1 of article 59 of the Labor Code of the Russian Federation)	By agreement of the parties (part 2 of article 59 of the Labor Code of the Russian Federation)
For the duration of the performance of the duties of an absent employee, who retains the place of work	With persons coming to work for employers - small businesses (including individual entrepreneurs)
For the duration of temporary (up to two months) work	With pensioners entering work by age, as well as with persons who, for health reasons, are allowed to work exclusively of a temporary nature
To perform seasonal work, when due to natural conditions work can only be done during a certain period (season)	With persons entering work in organizations located in the regions of the Far North and areas equivalent to them, if this is associated with moving to the place of work
With persons sent to work abroad	To carry out urgent work to prevent disasters, accidents, epidemics, epizootics, as well as to eliminate their consequences
To carry out work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work associated with a deliberately temporary (up to one year) expansion of production or the volume of services provided	With persons elected by competition for the corresponding position held in the manner prescribed by labor law and other acts containing norms labor law
With persons entering work in organizations created for a predetermined period or to perform a predetermined job	With creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with special lists
With persons hired to perform known work in cases where its completion cannot be determined by a specific date	With heads, deputy heads and chief accountants of organizations, regardless of the organizational and legal form of the organization and form of ownership
To perform work directly related to practice, vocational training or optional vocational education in the form of an internship	With persons receiving full-time education
In cases of election for a certain period to an elected body or to an elective position for a paid job, as well as employment related to the direct support of the activities of members of elected bodies or officials in the organs state power and local governments, in political parties and other public associations	With crew members sea vessels, inland navigation vessels and mixed (river - sea) navigation vessels registered in the Russian International Register of Vessels
With persons sent by the bodies of the employment service to work of a temporary nature and public Works	With persons entering a part-time job
With citizens sent for alternative civilian service	With an employee involved in the implementation of the regional program to increase mobility labor resources(Article 22.2 of Law No. 1032-1)
With vice-rectors educational organization higher education(Article 332 of the Labor Code of the Russian Federation)
With an athlete for the period of temporary transfer (Article 348.4 of the Labor Code of the Russian Federation)
In other cases provided for by federal laws

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

The legitimacy of the dismissal in connection with the expiration of its validity period depends on how legitimate (that is, in accordance with the law) the conclusion of a fixed-term employment contract. Failure to comply with the established procedure will result in the recognition of a fixed-term contract as open-ended and, accordingly, the reinstatement of the employee. And here problems can arise with the main employee if the contract was concluded, for example, during his long absence.

To prevent this from happening, the employer should remember a few rules. Most importantly, as already noted, the grounds for concluding a fixed-term employment contract must be established by the Labor Code or other federal laws. They must also be applied correctly, and this is where employers often face difficulties. For example, they confuse temporary work with seasonal work or conclude an agreement by agreement of the parties with a person not specified in Part 2 of Art. 59 of the Labor Code of the Russian Federation, apparently assuming that, by agreement of the parties, any employee can be temporarily accepted.

It is also unlawful to conclude a fixed-term employment contract when an employee is hired “for the duration of the performance of the duties of an absentee”, but in fact the position is vacant.

As for the conclusion of a fixed-term employment contract by agreement of the parties, this option will be valid only if the contract is concluded on the basis of the voluntary consent of the employee and employer. Here we note that employers often violate this condition when applying for a job, in particular, pensioners, concluding a fixed-term contract almost without fail.

Often, employers, in order not to conclude a contract for an indefinite period, conclude several fixed-term employment contracts with one person and for the performance of one job. On this occasion Supreme Court noted that when establishing during the trial the fact of the repeated conclusion of fixed-term employment contracts for a short period to fulfill the same labor function the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period (clause 14 of Resolution No. 2) (see the Appeal ruling of the Arkhangelsk Regional Court dated February 20, 2013 in case No. 33-885 / 2013).

And one more of the violations that are allowed by employers and may lead to the recognition of the contract as unlawful is non-compliance with its form and content requirements.

note

The employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy is given to the employee, the other is kept by the employer. The receipt of a copy of the employment contract by the employee must be confirmed by his signature on the copy kept by the employer (Article 67 of the Labor Code of the Russian Federation).

If the employment contract is not executed in writing, but the employee is actually admitted to the performance of duties (part 2 of article 67 of the Labor Code of the Russian Federation), then an employment relationship has arisen between the employee and the employer. However, the courts consider that in these cases the employment contract can be considered as concluded for an indefinite period.

Speaking about the content of the employment contract, we emphasize: it must indicate the period of its validity and the circumstances (reasons) that served as the basis for its conclusion for a certain period (paragraph 4, part 2, article 57 of the Labor Code of the Russian Federation). A specific period is indicated if the moment of termination of the contract can be accurately and in advance established by the parties. If it is impossible to determine the period, then by virtue of Art. 79 of the Labor Code of the Russian Federation indicates a period of time - for example, in cases of performing certain work, the duties of an absent employee, seasonal work.

Otherwise, the employment contract will be considered concluded for an indefinite period.

note

A fixed-term employment contract is concluded for a period of not more than five years, unless a different period is established by the Labor Code or other federal laws (clause 2, part 1, article 58 of the Labor Code of the Russian Federation).

Let us name the main signs that a fixed-term employment contract is concluded legally.

A fixed-term employment contract is legally concluded if ...		... concluded in writing for a period of not more than five years and it indicates the period of validity and the circumstances (reasons) that served as the basis for its conclusion for this period
		... the grounds for his conclusion are established by the Labor Code or other federal laws
		... work on it is obviously temporary
		... by agreement of the parties (part 2 of article 59 of the Labor Code of the Russian Federation), on the basis of the voluntary consent of the employee and employer

When concluding such an agreement, remember that it is prohibited to conclude agreements of this type in order to avoid granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period (part 6 of article 58 of the Labor Code of the Russian Federation).

Grounds for terminating a fixed-term contract

By virtue of Art. 79 of the Labor Code of the Russian Federation, a fixed-term employment contract terminates with the expiration of its validity. In this case, the employment contract concluded:

for the duration of a certain work, - terminates upon completion of this work;
for the duration of the performance of the duties of an absent employee, - terminates with the release of this employee to work;
to perform seasonal work during a certain period (season), - terminates at the end of this period (season).

The employee must be notified in writing about the termination of the employment contract due to its expiration at least three calendar days before the dismissal, except for cases when the term of the fixed-term employment contract concluded for the period of performance of the duties of the absent employee expires.

Of course, a fixed-term contract can also be terminated ahead of schedule in the cases established by the Labor Code of the Russian Federation, but we will consider the termination of labor relations due to the expiration of the contract.

The dismissal of an employee is unlawful

The dismissal of an employee due to the expiration of the employment contract is illegal, as already noted, if the contract was concluded illegally, in particular, when there were no legal grounds for this, the term of the contract and the circumstances (reasons) that served as the basis for its conclusion were not indicated, as well as the employee did not give consent to the conclusion of the contract by agreement of the parties in accordance with Part. 2 Article. 59 of the Labor Code of the Russian Federation and was able to prove it.

In addition, dismissal will be unlawful if the event associated with the termination of the employment contract has not occurred, and the employee has already been fired. The employer has the right to dismiss the employee only if the event that determines the expiration of the contract has occurred.

If the court establishes that the fixed-term employment contract was concluded unlawfully, it can be re-qualified as concluded for an indefinite period and the employee will be reinstated.

However, in some cases, the court makes a decision based on the circumstances of the case. For example, even in the absence of a written form of an employment contract, the court may recognize the dismissal as legal if it establishes that the employee knew about the urgent nature of the employment relationship - he was familiarized with the order for employment against signature, in which there was a note about the urgent nature of the employment contract Appeal ruling of the Sakhalin Regional Court dated March 3, 2016 in case No. 33‑540/2016).

The dismissal is not always recognized as illegal even if there are no circumstances (reasons) in the fixed-term contract that served as the basis for its conclusion. Thus, dismissal was recognized as legal in the case when the circumstances of concluding a fixed-term employment contract were not indicated in it, but in fact existed and were provided for by the Labor Code (see the Appeal ruling of the Supreme Court of the Republic of Karelia dated 01.09.2015 in case No. 33-3390 / 2015).

But if its term is not indicated in the fixed-term employment contract, such a dismissal will be recognized as unlawful (Determination of the Moscow City Court of December 12, 2014 No. 4g / 8-13140).

note

Dismissal due to the expiration of the employment contract of a pregnant employee is allowed if the contract was concluded for the duration of the duties of the absent employee, and the woman cannot be transferred with her written consent to another job available to the employer before the end of pregnancy. In other cases, the employment contract is extended on the basis of the employee’s application until the end of pregnancy or maternity leave (parts 2, 3 of article 261 of the Labor Code of the Russian Federation).

With regard to the employer's failure to comply with the notification procedure, the position of the judges is ambiguous. In some situations, the courts indicate that non-compliance with the requirements of Part 1 of Art. 79 of the Labor Code of the Russian Federation on a written notification of an employee about the termination of an employment contract due to the expiration of its validity cannot be an independent basis for recognizing the dismissal as illegal (see the Appeal ruling of the Irkutsk Regional Court dated 01/23/2013 in case No. 33-450 / 13). In others, that the will of the parties to terminate the employment relationship must be supported by evidence, one of which may be a notice to the employee of dismissal in accordance with Part 1 of Art. 79 of the Labor Code of the Russian Federation. Moreover, the dismissal will certainly be recognized as illegal if the employee, in violation of Art. 84.1 of the Labor Code of the Russian Federation was not familiar with the dismissal order. Non-compliance by the employer with the established Art. 79, 84.1 of the Labor Code of the Russian Federation, the dismissal procedure is essential for recognizing the dismissal as unlawful (see the Appeal ruling of the Krasnodar Regional Court dated May 17, 2012 in case No. 33-7701 / 2012).

In any case, if the contract is concluded for the duration of the performance of the duties of the absent employee, it is not necessary to warn about the termination of the contract.

Thus, it is possible to identify the main reasons when dismissal due to the expiration of the employment contract will be illegal.

Dismissal due to the expiration of the employment contract is unlawful if ...	…there are no legal grounds for concluding a fixed-term contract
	…is absent written form of the contract (an exception is possible if the employee signed the order with the specified term of the contract)
	...the contract does not specify the duration of its validity
	... the contract does not indicate the circumstances that served as the basis for its conclusion (an exception is when these circumstances are not in doubt, for example, if the employee is a pensioner)
	... a fixed-term contract was entered into under duress
	... the employee was dismissed before the occurrence of an event that determines the expiration date of the employment contract
	... a pregnant woman is fired, and she wrote an application for an extension of the contract
	... a pregnant employee, with whom the contract was concluded for the duration of the duties of an absent employee, was not offered a transfer to another position

We talked about what to look for when concluding a fixed-term employment contract, about what causes such a contract to be recognized as open-ended, as well as about the most common cases when the dismissal of a “conscript” may be considered illegal. In this situation, the employer will not only have to reclassify the employment contract into an open-ended one and reinstate the employee, but also pay him the average salary for the time of forced absenteeism, compensation for legal costs and moral damage. We hope that you will take into account all of the above when concluding fixed-term employment contracts. Most importantly, apply only the grounds provided for by law. And of course, the agreement of the parties on the establishment of a period in accordance with Part 2 of Art. 59 of the Labor Code of the Russian Federation can only be voluntary.

Last modified: March 2020

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

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

When can I conclude a fixed-term contract?

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

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

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

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

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

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

Time period

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

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

The procedure for reissuing and changing the type of agreement

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

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

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

Vacation and probation

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

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

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

Other differences

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

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

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

Summing up

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

In 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?

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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 for employees of an open-ended 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 entering the workplace of the 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 a fixed-term employment 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.

For how long?

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, subject to receiving 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 in 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 counted as calendar days.

Below is an example of such a contract:

Concurrently

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 carried out jointly.

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

Recording in work book is done only at the request of the employee working 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

Labor Code 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 the labor legislation, a temporary contract with a foreign citizen can be concluded, and without a certain 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 on seasonal work 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 time worked is not a whole month, but is for the most part, 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 open-ended contract.

If a temporary worker has worked for less than a full year, then a single tax is applied to him, minus the time when the work activity 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.

Conditions

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

with athletes;
pregnant women;
higher educational institution(upon 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, fill out supplementary agreement.

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 more good suggestion 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.

Frequently asked Questions

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;
workers Food Industry, 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.

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

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

Legislative justification for fixed-term contracts

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

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

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

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

Attractiveness of fixed-term employment contracts

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

a temporary employee is more manageable;

"conscript" is easier to motivate, since the extension of cooperation with him directly depends on the leadership;

much easier to carry out the dismissal procedure;

the employee dismissed at the end of the term cannot challenge such dismissal;

in this way, you can get rid of any categories of employees, even the most socially protected.

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

Features of a fixed-term employment contract

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

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

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

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

specifying a specific date when the contract will be terminated;

designation of the event, the occurrence of which terminates the fixed-term contract.

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

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

With whom you can conclude fixed-term employment contracts

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

seasonal workers;

employees hired to perform specific type work by a certain date;

employees who were sent to work abroad or to another branch of the organization;

specialists hired from outside to perform work not provided for by the main activity of the organization;

teachers who can work in the relevant position only for the duration of the competition;

replacing an employee on long-term sick leave or maternity leave, etc.

Transfer to a fixed-term employment contract from an indefinite

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

Reasons for transferring to a fixed-term employment contract

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

An employee is assigned to the place of a temporarily absent employee. The latter retains the place of work.

The employee is sent to work abroad temporarily.

The work is connected with the temporary expansion of production.

The employee has a disability.

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

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

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

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

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

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

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

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

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

The need to pay compensation for vacation that was not used.

The accrual of seniority for registration of leave begins anew. In order for an employee to be able to legally go on vacation, he needs to work for 6 months. For example, an employee under the first termless contract worked for 5 months. That is, after a month he can go on vacation. However, if the previous agreement is terminated, another contract is drawn up, the vacation will be legal only after 6 months.

You will have to draw up cadastral documentation for the employee as newly hired.

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

The procedure for drawing up a new employment contract

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

The employer conducts a conversation with the employee and offers him new working conditions. Explains the translation scheme.

The employee is leaving own will or by agreement of the parties.

A new employment contract with a limited duration is immediately drawn up. The manager issues an order to hire a person.

Relevant information is entered in the work book.

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

Legitimate reasons for urgency

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

Relationships are concluded strictly for a certain period, based on the nature of the upcoming work and related circumstances.

The urgency of labor relations is conditioned by the agreement of the parties in cases where this does not contradict the current legislation.

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

for a time when at his workplace for objective reasons is absent regular worker, the workplace for which must be saved by law;

the upcoming work will not take more than 2 months;

to ensure seasonal work;

with foreign forms of work;

performance of activities necessary for the firm, but not related to its core business (for example, installation work, repair, reconstruction, etc.);

work related to a limited (usually up to a year) time, such as expansion of activities, capacity, volume, etc.;

the company is specially created for a short existence, providing for a limited time to perform a specific job;

work related to vocational training, internships for employees;

election for a certain period to a working elected body;

referral to public works;

additional cases provided federal law(existing and possible for adoption in the future).

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

the employer is a representative of a small business;

the worker is a pensioner;

a medical employee is allowed only temporary employment;

work in the Far North and other equivalent territories;

when elected by competition to fill a vacant position;

urgent work aimed at preventing and/or eliminating the consequences of emergency situations;

with management, deputies and chief accountants of organizations;

with creative workers (in accordance with the list of similar positions);

with pupils or full-time students;

with partners;

with those working on watercraft registered in the Russian International Register of Vessels;

other grounds relevant federal laws(current and future).

Employer, remember:

it is impossible to conclude a fixed-term employment contract on grounds not specified in Art. 59 of the Labor Code of the Russian Federation;

when dismissing an employee after the expiration of a fixed-term contract, do not forget to notify him in writing 3 days in advance;

did not warn about the dismissal - the contract will become indefinite.

Worker, take note:

when applying for an urgent (temporary) job, pay attention to the condition of the end of work (a specific date or event);

if it is provided for by law, you can demand an extension of a fixed-term contract (for example, during pregnancy);

if your rights as a “conscript” are violated, the court will reinstate you at work, force the employer to pay, and possibly moral damages.