There are situations when a person can only get a job temporarily. For example, to replace an employee who went on vacation or for seasonal activities. For these cases, the law provides for the conclusion of a fixed-term employment contract. How it differs from an open-ended contract, read about the features and conditions of conclusion in this article.
Urgent labor contract is a temporary employment agreement between an employer and an employee. It is concluded for a specific period and only on objective grounds, when it is not possible to conclude an unlimited contract.
The types of labor agreements are described in article 58 of the Labor Code of the Russian Federation.
The grounds for concluding a temporary labor agreement are of two types: unconditional (part 1 of article 59 of the Labor Code of the Russian Federation) and by mutual agreement between the employee and the employer (part 2 of article 59 of the Labor Code of the Russian Federation).
For how long can you conclude a fixed-term employment contract
The legislation indicates the maximum period of validity of this document. A fixed-term employment contract is concluded for a period not exceeding 5 years. If a longer term is prescribed in the contract, the document is legally considered indefinite.
Article 58 of the Civil Code of the Russian Federation, which regulates, among other things, the period of validity of a fixed-term employment contract, explains that it is concluded when "labor relations cannot be established for an indefinite period, taking into account the nature of the job ahead or the conditions for its performance." The legislation does not provide for the minimum duration of a fixed-term contract.
Reasons for terminating a fixed-term employment contract
Grounds for terminating a temporary employment agreement:
Expiration (performance of a specific job or seasonal work, exit from vacation of a permanent employee, etc.)
Mutual agreement between the employee and the employer.
An event entailing the automatic termination of the contract. For example, conscription for military service, death of an employee, disaster etc.).
Dismissal under a fixed-term employment contract
Termination of a temporary employment contract occurs on the same grounds as for an indefinite one. As a rule, this is an initiative of one of the parties. For example, an employee may voluntarily resign due to retirement, poor health, or other personal reasons.
The employer has the right to dismiss an employee for the following main reasons:
Liquidation of company;
staff reduction;
repeated failure of the employee to fulfill his duties, absenteeism and other serious violations of labor discipline.
3 days before the end of the contract or its termination, the employer is obliged to provide the employee with a written notice and receive the signature of the dismissed. If this is not done, then the employment relationship automatically receives the status of an indefinite one.
Only in one case, notification is not needed: when the contract does not specify the end date, but the condition - the main employee's exit to work.
An employee dismissed before the end of the contract has the right to severance pay in the amount of two weeks' wages. If the dismissal was due to a layoff, then the employee is paid a two-month allowance.
According to labor law, you cannot dismiss:
a pregnant woman before the end of her pregnancy;
a woman raising a child up to 3 years old;
single mother with children under 14 years of age;
a person who takes care of children without a mother.
Prolongation of a fixed-term employment contract
A temporary employment agreement can only be extended for one reason: if the employee is pregnant. In all other cases, the wording “change of the term” is used or a new contract is concluded.
By mutual agreement of the parties, three days before the expiration of the previous temporary contract, a new one is concluded. Another option is to invite an employee to a permanent job and sign an open-ended employment agreement.
A fixed-term contract automatically becomes indefinite if the employee has not received a notice of termination 3 days before the expiration date, or both parties have forgotten about the termination period.
Rights and obligations of employees
The Labor Code of the Russian Federation emphasizes that a fixed-term employment contract in terms of rights and guarantees is no different from an ordinary open-ended contract. The employee has the right to leave, adequate wages, severance pay upon dismissal.
Probationary period under the terms of a fixed-term employment contract
In a fixed-term employment relationship, the probationary period has some conditions.
For persons employed for a period of 2 to 6 months, probation is 2 weeks. For managers, deputies and accountants - six months. For civil servants - from 1 month to 1 year.
Article 70 of the Labor Code of the Russian Federation stipulates the categories of persons for whom a probationary period is not assigned. This list includes:
employees who have formalized labor relations for up to 2 months;
pregnant women;
women raising a child up to 1.5 years old;
minors (under 18);
conscripts of alternative civilian service;
Pros and cons of concluding a fixed-term employment contract
Pros for the employee: employment, salary, paid vacation and sick leave, severance pay upon dismissal.
Minus: the dismissal will still come and after a certain period of time you will have to look for work again.
For the employer, the plus is that there is no need to expand the staff, but you can solve all the difficulties with an increase in production or seasonal work by concluding a fixed-term contract. However, there is one more convenient way reduce staff and avoid hiring additional staff. This is the transfer of part of routine and paperwork to outsourcing. The service will save you from a bloated staff - you will only need to pay for the services actually rendered.
How to draw up a fixed-term employment contract correctly
Temporary document labor agreement contains the same information as a regular employment contract: the subject of the contract, the rights and obligations of the parties, working and rest conditions, social guarantees, etc.
When drawing up, be extremely careful. The document must necessarily contain:
1. Grounds for conclusion
2. End date labor relations... It is recorded either by a specific date or by a condition. For example: “Before Svetlana Petrovna Ivanova goes to work”.
Without these two clauses, a fixed-term employment contract will be considered invalid.
To conclude a fixed-term employment contract, an employee must provide:
work book (if this is not a primary admission to work);
military ID (for those liable for military service);
certificate of education (diploma, certificate, etc.), if the position held requires qualifications.
The employer may require other documents as well. For example, a medical book when applying for a job at a retail outlet.
Three months of accounting, personnel records and legal support for FREE. Hurry up, the offer is limited.
Commentary on Article 59
1. Article 59 is set out in new edition... Unlike the previous one, it contains two parts, each of which provides different kinds works (cases) for the performance of which a fixed-term employment contract is concluded with the employee.
Lists of works (cases) provided for in Part 1 and Part 2 of Art. 59 are not exhaustive. Labor Code or other federal laws other cases may also be envisaged when the conclusion of a fixed-term employment contract is either mandatory by virtue of the law, or is allowed by agreement of the parties to the employment contract. Since in Art. 59 we are talking about the Labor Code or other federal law, neither the law of the subject of the Russian Federation, nor the decree of the President of the Russian Federation, nor the decree of the Government of the Russian Federation, nor any other by-law regulatory legal act can establish any additional grounds (cases) for concluding a fixed-term employment contract.
2. Cases (types of work) listed in Part 1 of Art. 59, correspond to the general criterion for concluding a fixed-term employment contract, formulated in part 2 of Art. 58 TC. That is, all the cases listed in it determine the urgent nature of the labor connection.
In this regard, the conclusion of a fixed-term employment contract in those listed in Part 1 of Art. 59 cases is required. The wording of the commented norm does not imply a different solution, since in all these cases, based on the nature of the work ahead or the conditions for its performance, labor relations cannot be established for an indefinite period. It should be noted that the previous version of Art. 59 provided the parties to an employment contract with the right to choose in determining its type. That is, in all cases provided for in it, both a fixed-term employment contract and an employment contract with an indefinite period could be concluded.
Part 1 of Art. 59 names 11 specific cases when a fixed-term employment contract is concluded with an employee.
These include:
1) for the duration of the performance of the duties of a temporarily absent employee. Such an employment contract is concluded when the place of work is retained for the absent employee in accordance with labor legislation and other regulatory legal acts containing labor law norms, collective bargaining agreements, agreements, local regulations, employment contract (for example, while the employee is on a long business trip , on parental leave). The term of the employment contract in this case is made dependent on the time when the absent employee returns to the performance of his labor (official) duties. Since the law speaks of the temporary absence of an employee who retains a place of work (position), a fixed-term employment contract cannot be concluded to fulfill obligations for a vacant position until another permanent employee is hired for this position;
2) to perform temporary (up to 2 months) work, as well as seasonal work, when due to natural conditions work can be performed only for a certain period (season), not exceeding, as a rule, 6 months (see commentary to Art. 293).
The conclusion of a fixed-term employment contract for up to 2 months is possible provided that the work is deliberately temporary, i.e. it is known in advance that it will last no more than 2 months (for example, at the time of preparing the annual report). In this case, the agreement of the parties must determine the specific term of the employment contract within 2 months (3 weeks, 1 month, 1.5 months, etc.).
It will be illegal to conclude a fixed-term employment contract for a period of up to 2 months to perform work that is permanent for the employer.
The conclusion of a fixed-term employment contract for the performance of seasonal work is allowed, provided that this work is provided for by a special list of seasonal work. Lists of seasonal work, including individual seasonal work, which can be carried out during a period (season) exceeding 6 months, and the maximum duration of these individual seasonal work is determined by sectoral (intersectoral) agreements concluded at the federal level of social partnership (p. 2 article 293, see the commentary to it).
The conclusion of a fixed-term employment contract for a certain season to perform work not provided for by the named list will be considered illegal;
3) with persons sent to work abroad. In this case, it does not matter to which organization the employee is sent abroad. These can be diplomatic missions and consular offices of the Russian Federation abroad, as well as representations of federal executive bodies and state institutions of the Russian Federation, commercial organizations, scientific and educational institutions and etc.;
4) to carry out work that goes beyond the usual activities of the employer, as well as to carry out work associated with a deliberately temporary (up to 1 year) expansion of production or the volume of services provided.
In this case, the usual activities of the employer should be understood as such types of work that correspond to the main areas of activity of the organization, enshrined in its charter.
As an example of work that goes beyond the normal activities of the organization, the law names reconstruction, installation, commissioning. Depending on the nature (type) of the organization's usual activities, this may be other work, for example, repair, construction. However, in all cases, work outside the normal (main) activities of the organization, for the performance of which fixed-term employment contracts may be concluded, must be of a temporary (urgent) nature. Since the law does not establish any special deadline for which such an employment contract can be concluded, the term of an employment contract is determined in each specific case by agreement of the parties based on the specific circumstances and the period of time during which there is a need to perform work that goes outside the normal activities of the organization. Here, the general rules on the deadline for the employment contract established by Art. 58 TC, i.e. 5 years.
Unlike an employment contract concluded for work outside the usual activities of the employer, the term of an employment contract concluded in connection with the need to temporarily expand production or the volume of services provided is limited. It cannot exceed one year. This is due to the fact that work under such an agreement is carried out in the framework of the normal activities of the organization and the need to expand production or the volume of services provided is limited to certain time limits, known to the employer.
The specific term of the employment contract for the performance of work associated with a deliberately temporary expansion of production or the volume of services provided, within one year, is determined by agreement of the parties. For example, due to the increase in the number of tourists in summer time and in connection with the expansion of the volume of services provided, hotels, cafes, restaurants, transport organizations, etc. can employ an additional number of employees by concluding employment contracts with them for a certain period (1, 2, 3 months, etc.);
5) with persons applying for work in organizations created for a known period of time or for the performance of a known work.
The fact that an organization was created for a certain period or only to perform a certain work must be recorded in the charter of this organization. The charter of the organization also determines the specific period of time for which it was created or during which the work will be completed, the implementation of which is the purpose of creating the organization (for example, for 2, 3, 4 years).
The term of an employment contract with persons entering organizations created for a predetermined period of time or for the performance of a predetermined work is determined by the period for which such an organization was created. Therefore, the termination of the employment contract with the specified employees on the basis of the expiration of the term of the employment contract can be made if this organization really ceases its activities due to the expiration of the period for which it was created, or the achievement of the goal for which it was created, without transferring rights and obligations in succession to other persons (clause 14 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 No. N 2);
6) with persons accepted for the performance of knowingly certain work in cases where its performance (completion) cannot be determined by a specific date.
In these cases, the employment contract with employees must indicate that it was concluded for the duration of this particular work (for example, for the period of office renovation, for the period of construction of the facility). The end (completion) of the specified work will be the basis for termination of the employment contract due to the expiration of its validity period. At the same time, it should be borne in mind that if in the course of the trial it is established the fact of multiple 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 (paragraph 14 of the Resolution of the Plenum of the RF Armed Forces of March 17, 2004 N 2);
7) to perform work directly related to the internship or vocational training of the employee. In this case, the employment contract is concluded for the period of internship or vocational training.
An internship or vocational training of employees in an organization can be carried out both on the basis of an agreement with another organization that sent its employee for an internship or vocational training, and on the basis of an apprenticeship agreement concluded by the organization with the student himself (see the commentary to Art. 198 - 208);
8) in the case of being elected for a specified term to an elected body or to an elective position for paid work. For example, for the position of dean of a faculty or head of a department of a higher educational institution. According to Art. 332 of the Labor Code, these positions are filled on the basis of elections (see Articles 17, 332 of the Labor Code);
9) when applying for a job related to the direct support of the activities of members of elected bodies or officials in bodies state power and local governments, in political parties and other public associations. In this case, it is said about work related to the direct support of the activities of members of these bodies or officials. This means that not all persons applying for work in these elected bodies can be concluded with a fixed-term employment contract. It is on contracts concluded for the performance of such work, which is directly aimed at ensuring the activities of members of the relevant elected bodies or officials (for example, work as an assistant, secretary, adviser to the governor; assistant, assistant to the chairman of the party).
The term of the employment contract in these cases is established by agreement of the parties within the term of office of the relevant elected body or official.
The early termination of the powers of certain bodies or officials should also entail the termination of employment contracts with persons hired to ensure these activities;
10) with persons sent by the bodies of the employment service to work of a temporary nature and public Works... Such works are organized as additional social support for citizens looking for work. The term of the employment contract for the performance of such work is determined by agreement of the parties.
If the work for which the citizen is directed by the body of the employment service is of a permanent nature, the conclusion of a fixed-term employment contract with him is not allowed;
11) with citizens sent for alternative civilian service. When concluding an employment contract with this category of citizens, it should be borne in mind that the status of citizens undergoing alternative civilian service is established by the Federal Law of July 25, 2002 N 113-FZ "On alternative civil service"(SZ RF. 2002. N 30. Art. 3030) in accordance with the Constitution of the Russian Federation. Alternative civilian service is special kind labor activity in the interests of society and the state, carried out by citizens in return military service on call. The procedure for sending citizens to an alternative civilian service is determined by the said Law, other federal laws, the Regulation on the procedure for passing an alternative civilian service, approved. Resolution of the Government of the Russian Federation of May 28, 2004 N 256 (SZ RF. 2004. N 23. Art. 2309), and other regulatory legal acts of the Russian Federation adopted in accordance with them.
The labor activity of citizens undergoing alternative civilian service is regulated by the Labor Code, taking into account the specifics provided for by the said Federal Law.
In accordance with Art. 5 of this Law, the term of alternative civil service is 42 months, and for citizens who graduated from state, municipal or state accreditation in the relevant areas of training (specialties) non-state educational institutions of higher professional education - 21 months. The term of alternative civilian service for citizens doing this service in organizations of the Armed Forces of the Russian Federation, other troops, military formations and bodies is 36 months, and for citizens who have graduated from state, municipal or state accredited in the relevant areas of training (specialties) non-state educational institutions of higher professional education - 18 months.
In accordance with the indicated terms, the term of the employment contract with citizens sent to undergo alternative civilian service is also determined. By concluding an employment contract, the parties are not entitled to establish another term for its validity.
3. Unlike part 1 of the commented article, according to which the conclusion of an employment contract for a certain period due to the nature of the work ahead or the conditions for its performance is mandatory, part 2 of the article provides a list of cases when the conclusion of a fixed-term employment contract is allowed by agreement of the parties ... Moreover, by agreement of the parties, a fixed-term employment contract in those listed in Part 2 of Art. 59 cases can be concluded without taking into account the nature of the work ahead or the conditions for its implementation. It should be borne in mind that such an agreement can be recognized as legitimate if there was an agreement between the parties, that is, if it was concluded on the basis of the voluntary consent of the employee and the employer. If the court, when resolving a dispute on the legality of concluding a fixed-term employment contract, establishes that it was concluded by an employee involuntarily, the court applies the rules of the contract concluded for an indefinite period.
According to part 2 of the commented article, by agreement of the parties, a fixed-term employment contract can be concluded:
1) with persons applying for work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the retail and consumer services - 20 people). It should be noted that in the previous edition these figures were 40 and 25 people, respectively.
The concept and types of small businesses are defined by Art. 3 of the Federal Law of June 14, 1995 N 88-FZ "On State Support of Small Business in the Russian Federation" (SZ RF. 1995. N 25. Art. 2343). In accordance with it, small businesses are understood as commercial organizations, in authorized capital which the share of participation of the Russian Federation, constituent entities of the Russian Federation, public and religious organizations (associations), charitable and other foundations does not exceed 25%, the share owned by one or several legal entities that are not small businesses does not exceed 25% and in which the average number of employees for the reporting period does not exceed the following limit levels (small businesses):
In industry - 100 people;
In construction - 100 people;
Transport - 100 people;
IN agriculture- 60 people;
In the scientific and technical sphere - 60 people;
Wholesale trade - 50 people;
In retail trade and consumer services of the population - 30 people;
In the rest of the sectors and in the implementation of other types of activities - 50 people.
Small businesses are also understood as individuals engaged in entrepreneurial activity without forming a legal entity.
Small businesses that carry out several types of activities (multidisciplinary) are classified as such according to the criteria of the type of activity, the share of which is the largest in the annual volume of turnover or annual volume of profit. The average number of employees of a small enterprise for the reporting period is determined taking into account all its employees, including those working under civil law contracts and part-time, taking into account the actual hours worked, as well as employees of representative offices, branches and others. separate subdivisions the specified legal entity;
2) with retirees entering work by age, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature.
It is necessary to pay attention to what the law says about old-age retirees who start work, that is, those who for the first time or again (after dismissal) conclude an employment contract with this employer. In this regard, the employer is not entitled, including with the consent of an employee who is in an employment relationship with him and has reached retirement age, to renegotiate an employment contract concluded with this employee for an indefinite period into a fixed-term employment contract. It should be borne in mind that the number of old-age pensioners includes persons who have reached retirement age and who, in accordance with the pension legislation, have been assigned an old-age pension. If a citizen has reached the age necessary for the appointment of a pension, but in accordance with the pension legislation has not acquired the right to it or the pension has not been assigned to him for any other reason, he cannot be considered a pensioner and, therefore, the rules for concluding a fixed-term employment contract provided for by the commented norm, it should not be applied.
The fact that an employee for health reasons can perform work of an exclusively temporary nature must be established by a medical report. A medical opinion of this kind has the right to issue only that body or institution to which such a right is granted (for example, institutions of medical and social expertise).
The term of the employment contract is determined in this case based on the duration that, according to the medical opinion, is allowed for this employee in accordance with his state of health. The employer does not have the right, at his own discretion, to set the employee the term of the employment contract for a longer or shorter duration than that prescribed by the medical opinion;
3) with persons applying for work in organizations located in the regions of the Far North and equivalent areas, if this is associated with moving to the place of work. Since the law connects the possibility of concluding a fixed-term employment contract with these persons with their relocation to their place of work in organizations located in the regions of the Far North and equivalent areas, this rule should not apply to citizens permanently residing in these areas and localities. A fixed-term employment contract is concluded with them on the grounds specified in Part 1 of Art. 59, by agreement of the parties in the cases specified in part 2 of the same article (for example, when applying for a part-time job), as well as in other cases provided for by the Labor Code or other federal laws.
The list of regions of the Far North and equivalent areas was approved by the Resolution of the Council of Ministers of the USSR dated November 10, 1967 N 1029 (JV USSR. 1967. N 29. Art. 203) and is valid today as amended. Resolutions of the Council of Ministers of the USSR of January 3, 1983 N 12 (SP USSR. 1983. N 5. Art. 21) with additions and amendments introduced by the legislation of the Russian Federation;
4) to conduct urgent work to prevent catastrophes, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergencies (for example, to eliminate the consequences of a flood, fire). Since the law does not establish a minimum or maximum period for which an employment contract can be concluded under these circumstances, it is determined by agreement of the parties. If the term of the employment contract does not exceed 2 months, the arisen labor relations are regulated taking into account the specifics established by Ch. 45 of the Labor Code (see comments to Art. 289 - 292);
5) with creative media workers mass media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (display) of works by professional athletes in accordance with the lists of jobs, professions, positions of these workers approved by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations. To date, such lists have not been approved;
6) with heads, deputy heads and chief accountants of organizations. At the same time, it does not matter what is the organizational and legal form and form of ownership of these organizations - Joint-Stock Company, society with limited liability, state unitary enterprise, etc.
The term of the employment contract with the head of the organization in accordance with Part 1 of Art. 275 of the Labor Code, set forth in the new edition, is determined by the constituent documents of the organization or by agreement of the parties. That is, by agreement of the parties, the term of the employment contract with the head of the organization is determined in the event that it is not established by the constituent documents of the organization. It should be noted that according to the previous edition of Part 1 of Art. 275 of the Labor Code, the conclusion of a fixed-term employment contract with the head of the organization was mandatory;
7) with persons studying full-time education;
8) with persons applying for part-time work (for the procedure and conditions for concluding an employment contract for part-time work, see the commentary to Articles 282 - 288).
4. In addition to the cases directly provided for by Part 2 of Art. 59, the conclusion of a fixed-term employment contract by agreement of the parties is also allowed in other cases provided for by the Labor Code or other federal law. So, in accordance with Art. 332 of the Labor Code, set forth in the new edition, by agreement of the parties, fixed-term employment contracts may be concluded for the replacement of positions of scientific and pedagogical workers in a higher educational institution. According to the previous version of this article, the conclusion of a fixed-term employment contract (for a period of up to 5 years) with these employees was mandatory.
5. In accordance with general rules conclusion of a fixed-term employment contract, established by Art. 58 of the Labor Code, a fixed-term employment contract can be concluded either in cases where labor relations cannot be established for an indefinite period, taking into account the nature of the work ahead or the conditions for its performance (part 1 of article 59), or by agreement of the parties without taking into account the above circumstances in cases stipulated by the Labor Code or other federal law (part 2 of article 59). At the same time, in some cases, the Labor Code provides for the conclusion of a fixed-term employment contract without taking into account these general rules. So, according to Part 14 of Art. 332 TC, a fixed-term employment contract is concluded with the vice-rectors of a higher educational institution. The aforementioned norm is set forth in an imperative form, therefore, the conclusion of a fixed-term employment contract with these employees is mandatory by virtue of a direct statutory requirement. However, neither in nature nor in terms of performance, work as a vice-rector of a higher educational institution does not apply to work for the performance of which an employment contract cannot be concluded for an indefinite period. Thus, having provided for the obligation to conclude a fixed-term employment contract with the vice-rectors of a higher educational institution, the legislator has shown a clear inconsistency in the regulation of the relations in question (see commentary to Art. 332).
A fixed-term employment contract is concluded:
for the duration of the duties of an absent employee, for whom, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, the place of work is retained;
for the duration of temporary (up to two months) work;
for seasonal work, when, due to natural conditions, work can only be performed during a certain period (season);
with persons sent to work abroad;
to carry out work that goes beyond the usual 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 applying to work in organizations created for a predetermined period or to perform a predetermined work;
with persons accepted for the performance of a known job in cases where its completion cannot be determined by a specific date;
to perform work directly related to practice, vocational training or additional vocational education in the form of an internship;
in cases of being elected for a certain period of time to an elected body or to an elective position for a paid job, as well as entering a job related to the direct support of the activities of members of elected bodies or officials in public authorities and local self-government bodies, in political parties and other public associations;
with persons sent by the bodies of the employment service to work of a temporary nature and public works;
with citizens sent for alternative civilian service;
By agreement of the parties, a fixed-term employment contract may be concluded:
with persons applying for work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people);
with retirees entering work by age, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner prescribed by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;
with persons applying to work in organizations located in the regions of the Far North and equivalent areas, if this is associated with moving to the place of work;
to carry out urgent work to prevent catastrophes, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergencies;
with persons elected through a competition for filling the relevant position, held in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms;
with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (display) of works, in accordance with the lists of works, professions, positions of these workers approved by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations;
with heads, deputy heads and chief accountants of organizations, regardless of their organizational and legal forms and forms of ownership;
with persons receiving full-time education;
with crew members sea vessels, inland navigation vessels and mixed (river - sea) navigation vessels registered in the Russian International Register of Vessels;
with persons applying for a part-time job;
in other cases provided for by this Code or other federal laws.
Comments to Art. 59 of the Labor Code of the Russian Federation
1. List of regions of the Far North and localities equated to the regions of the Far North, which are subject to the Presidium's Decrees The Supreme Council USSR of February 10, 1960 and September 26, 1967 on benefits for persons working in these areas and localities, approved. Resolution of the Council of Ministers of the USSR of November 10, 1967 N 1029, is currently in force in the red. Resolutions of the Council of Ministers of the USSR of January 3, 1983 N 12 (as amended and supplemented).
2. The specifics of concluding a service contract with civil servants are set out in the Federal Law of July 27, 2004 N 79-FZ "On the State Civil Service of the Russian Federation".
3. The specifics of concluding an employment contract with municipal employees are set out in the Federal Law of March 2, 2007 N 25-FZ "On municipal service in the Russian Federation".
4. To small and medium-sized businesses in accordance with Art. 4 of the Federal Law of July 24, 2007 N 209-FZ "On the development of small and medium-sized businesses in the Russian Federation" include consumer cooperatives and commercial organizations (except for state and municipal unitary enterprises) entered in the Unified State Register of Legal Entities (except for state and municipal unitary enterprises), as well as physical persons included in the Unified State Register of Individual Entrepreneurs and carrying out entrepreneurial activity without the formation of a legal entity, peasant (farm) farms that meet the following conditions:
1) for legal entities, the total share of participation of the Russian Federation, constituent entities of the Russian Federation, municipalities, foreign legal entities, foreign citizens, public and religious organizations (associations), charitable and other funds in the authorized (joint) capital (mutual fund) of these legal entities should not exceed 25% (except for the assets of joint-stock investment funds and closed-end mutual investment funds ), the share of participation belonging to one or several legal entities that are not small and medium-sized businesses should not exceed 25%;
2) the average number of employees for the previous calendar year should not exceed the following limit values for the average number of employees for each category of small and medium-sized businesses: a) from 101 to 250 people. inclusive for medium-sized enterprises; b) up to 100 people. inclusive for small businesses; micro-enterprises stand out among small enterprises - up to 15 people;
3) revenue from the sale of goods (works, services) excluding value added tax or the book value of assets (residual value of fixed assets and intangible assets) for the previous calendar year should not exceed the limit values established by the Government of the Russian Federation for each category of small and medium-sized entities entrepreneurship.
5. In accordance with Part 1 of Art. 58 of the Labor Code, a fixed-term employment contract may be concluded for a period not exceeding 5 years, unless a longer period is established by the Labor Code or other federal laws. When concluding a fixed-term employment contract with persons applying for work in organizations created for a predetermined period of time or to perform a predetermined work (paragraph 9 of article 59 of the Labor Code), the term of the employment contract is determined by the period for which such an organization was created. Therefore, the termination of an employment contract with these employees on the basis of the expiration of the term of the employment contract can be made if this organization really ceases its activities due to the expiration of the period for which it was created, or the achievement of the purpose for which it was created, without transferring rights and obligations by way of succession to other persons (Article 61 of the Civil Code).
If a fixed-term employment contract was concluded to perform a certain work in cases where its performance (completion) cannot be determined by a specific date (paragraph 10 of article 59 of the Labor Code), such an agreement by virtue of Part 2 of Art. 79 TC is terminated upon completion of this work.
When establishing in the course of court proceedings the fact of multiple conclusion of fixed-term employment contracts for a short period to perform 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 (paragraph 14 of the Resolution of the Plenum The Supreme Court RF of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation").
6. When considering disputes between employees with whom fixed-term employment contracts were concluded for a period of up to 2 months. or for the duration of seasonal work, it is necessary to take into account the specifics of regulating relations under these contracts, established by Ch. 45 - 46 TC. In particular, when applying for a job for up to 2 months. a test cannot be established for workers (Article 289 of the Labor Code), and when hiring for seasonal work, the test period cannot exceed 2 weeks (part 2 of Article 294 of the Labor Code); in case of early termination of the employment contract, these employees are obliged to writing notify the employer about this in 3 calendar days(part 1 of article 292, part 1 of article 296 of the Labor Code). The employer is obliged to warn about the upcoming dismissal in connection with the liquidation of the organization, reduction in the number or staff of employees in writing against receipt: employees who have entered into an employment contract for up to 2 months - at least 3 calendar days (part 2 of Art. . 292 Labor Code), and workers employed in seasonal work - not less than 7 calendar days (paragraph 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2).
7. Part 1 of the commented article lists 12 grounds under which the parties to an employment contract are obliged to conclude a fixed-term employment contract. The commented article names 2 reasons for the urgency of the employment contract: the nature of the work ahead and the conditions for its implementation. Part 2 of the commented article lists 10 situations in which a fixed-term employment contract can be concluded upon agreement of the parties. At the same time, in the presence of these grounds, it is possible to conclude an employment contract for an indefinite period.
8. If an employment contract is concluded with an employee for an indefinite period, and then the employee has reached retirement age, the employer has the right to propose to the employee to change the term of the employment contract to a fixed-term one. If the employee agrees, then it is possible to amend the employment contract, i.e. replace an indefinite period with a specific one. If the employee does not agree to change the term of the employment contract, then the employer in unilaterally such a change cannot be made.
An employee who is hired by the manager for a certain period of time is a temporary employee. With such a subordinate, an employment contract is always signed only for a specified period. In this document, the period of its validity is prescribed without fail. Otherwise, the contract is considered indefinite, and the temporary employee is a permanent employee. The latter, in turn, is entitled to a monthly receipt wages and compensation for unused rest periods upon termination of employment.
What you need to know
Most citizens carry out their official activities at enterprises and institutions of our state. Almost all of them work under an employment contract, which is concluded for. Nevertheless, situations are different. Sometimes the head of an enterprise is forced to look for a replacement for a permanent employee who went on sick leave or is on vacation. In this case, the organization often hires a temporary employee who performs the duties of an absent subordinate. After a permanent employee leaves, a person working under a fixed-term contract is subject to dismissal.
Important
The head of the organization must always remember that not all citizens can sign a fixed-term employment contract. Article 59 of the Labor Code of the Russian Federation contains a list of persons with whom registration service relations even for a certain period of time. These include the following:
People who are sent to work abroad;
Persons entering to carry out labor activities in organizations created only for a certain period;
Citizens hired to perform certain work, the completion date of which is unknown in advance (for example, the construction of a private house);
People who were sent from the labor exchange to public works;
Persons sent to the civil service.
In addition, in cases established by law, it is possible to register an employee for work under a fixed-term employment contract. Article 59 of the Labor Code of the Russian Federation provides here the following of them:
A citizen is hired to replace a temporarily absent employee;
If you need to complete work, the deadline for which is not more than 2 months;
Implementation of an internship;
To carry out work that goes beyond the scope of the organization (for example, building reconstruction);
For the period of seasonal work (performance of the duties of a cloakroom attendant).
Small characteristic
So, a temporary worker is the person who is hired for a certain position at the enterprise for a period established by the contract. Therefore, such an employee knows in advance that he will not be able to constantly work in this organization. After all, the date of completion of his official duties is fixed in advance in the employment contract.
Reception
Before hiring a new person for temporary work, the head of the enterprise must make sure that he does not violate the norms of labor legislation by his actions. This is the order. If the latter hires an employee for seasonal work (for example, a gardener at summer period time or cloakroom attendant to the clinic), then he has every right to sign a fixed-term employment contract with him.
In addition, the hiring of temporary workers is no different from the employment of those citizens who will serve in the organization on a permanent basis. Indeed, in cases determined by law, employees hired for a certain period must provide the employer with everything Required documents(for example, a diploma, a certificate of no criminal record, and others).
Nuances
If the head of the company hired an employee for a period of up to two months, then he needs to know about all existing features such work activity. In this case, there should be no trial period. After all, a person is already a temporary worker. The Labor Code of the Russian Federation also warns managers that if such an employee is attracted to work on a weekend or holiday, the latter is entitled to only material remuneration for his work. He does not have the right to an additional day of rest.
End of work and settlement
In practice, the head of a firm often faces a number of difficulties when firing a temporary worker. And in most cases, he is in serious violation of labor laws. After all, not every employer remembers that before dismissing an employee who has been hired for a given position for a certain period of time, the latter must be notified about this three calendar days before the date of termination of the fixed-term contract.
Therefore, many subordinates often file complaints with the prosecutor's office and the labor inspectorate. To prevent this from happening, the employer must follow the norms of the current law even when dismissing an employee who temporarily performed the duties entrusted to him.
Therefore, on the last day of the employee's labor activity, the personnel specialist must prepare the corresponding order and all other documents related to the work of the latter. In certain cases, the employee immediately asks to provide him with a certificate of his latest income. This document is required for registration with the employment service.
On the last day of a subordinate's work, the employer must pay him completely. This means that the latter must transfer the salary and additional remuneration for the unused vacation of the temporary worker.
Translation
When performing official activities, it often happens that one of the employees goes on vacation or sick leave, and another person begins to perform his duties. But in this case, the latter has the right to receive additional income. After all, he will perform not only his duties, but also work for another employee. But how is this formalized in practice?
The manager can offer the employee a transfer to a temporary position while maintaining his average income or the earnings of the employee whose duties he will perform. As a rule, the latter always agrees. The transfer of an employee is formalized by an appropriate order.
Also in this case, it is possible to combine two positions. Then the employee will perform his duties and the absent employee at the same time. This must be confirmed by order and additional agreement.
Labor enrollment
So, as it was already written earlier, a temporary employee is hired only for the period established by the contract. But what will be written in it work book in this case? Here, in fact, everything is quite simple.
First, the head of the enterprise signs an employment contract with the employee, which fixes the date of completion of the latter's career. Then the HR specialist prints the order and makes an entry in the temporary worker's work book. In this case, you may not immediately indicate the duration of the employment contract. Because when a temporary employee is dismissed, it will be necessary to indicate the reason for the termination of the service relationship in the work book. In this case, the entry should be as follows: "Fired due to the expiration of the employment contract" paragraph of the second part of the first article 77 of the Labor Code of the Russian Federation.
By agreement
Here again, it is necessary to point out that when concluding an employment contract with an employee for a certain period of time, the head of the organization must comply with the requirements of the law. Otherwise, it will be impossible for him to avoid problems with the law. If a pensioner wants to get a job, the boss has the right to offer him. By mutual agreement of the parties, a fixed-term contract can be concluded with full-time students. Most often, the latter do not object to such a proposal from the head of the enterprise. After all, part-time workers are not the main employees, because they already have the main place of work. Small business entrepreneurs with fewer than thirty-five employees can enter into fixed-term employment contracts with employees.
Conclusion
Any employee who is hired by an employer only for a certain period should be aware that he will be fired after his term of office ends. In practice, this is most often the case. If a person has been hired for two months, then it is prohibited to establish a probationary period for him. In addition, when choosing an employee, even for a certain period, the head of the company needs to be more careful.
This is especially true when a pregnant woman is hired by the boss during the absence of a permanent employee. After all, it is not so easy to end an employment relationship with such a subordinate. Because she can ask her boss to transfer her to another position (after the release of a permanent employee, whose duties she performed) and extend the employment relationship with her until the very birth.
Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract and the procedure for its preparation are strictly regulated, which describes in two parts the conditions for the formation with an established group of persons. The categories of citizens are not as important as the types of activities that can be performed under fixed-term contracts with companies. Also, both parts of Article 59 of the Labor Code of the Russian Federation are devoted to a list of works that are not limited. Non-exhaustive provisions are presented in other legislative acts, which are not defined by this article of the Labor Code of the Russian Federation.
The nature of urgent types of employment
Full list types of similar activities in part 1 of Art. 59 reflect their classification and essence in the second part, therefore, when signing agreements, you can be guided by the first, relying on the second.
Art. 59 of the Labor Code also provides for the main 11 types of positions according to the types of provisions, when it is necessary to conclude a fixed-term contract with an employee:
- In the case when the employee is a substitute in the company. There are situations when a person replaces another for special circumstances, and in these cases, the fulfillment of temporary obligations requires formal reflection. For this, a fixed-term contract is concluded for the period when it is necessary to replace a colleague or transfer cases to an acting person. It is especially important to pay attention to the wording of the position: if it is not vacant, but is engaged in another person temporarily, then the date of the period is indicated until the person recovers or a really employee is found for a vacant position. This is necessary when the work of the enterprise is impossible without the position of a specific person.
- Full-fledged contracts that do not provide for the use of other people's resources. Let's say that seasonal work is carried out on behalf of a company and that this requires hiring several workers for a period of two to six months. For this period, it is necessary to conclude a fixed-term contract with the employee. Such situations include construction, temporary placement of employees, etc. It may also depend on natural conditions, when the excess of employment in time cannot be six months in accordance with Article 293 of the Labor Code of the Russian Federation.
- There is a separate position with temporary employment, which lasts up to 2 months. Such employees are hired under a fixed-term contract so that they have time to make an annual report, go on an urgent business trip.
This list is legally closed. The Labor Code provides comprehensive information about a fixed-term employment contract. Therefore, before signing such a document, you need to carefully study the legislation.
You cannot conclude a contract that will provide for work that takes 3-4 months to complete, but for the employer it is permanent. For example, it is impossible to constantly register an incoming accountant under a fixed-term contract when the position is required on an ongoing basis. This generates turnover in the company, which is of interest to the tax and labor inspectorates.
Separately, it should be said about seasonal work. It is permissible to arrange employees for such types of activities only on condition that the type of work is included in the list of urgent seasonal ones. There are special lists that the employer knows about, and they need to be guided by.
If the specific position has nothing to do with seasonal employment, the company is not eligible to provide a place under a fixed-term contract. In these cases, the period of work should be established by specifying the limits of the labor standard in the contract. Usually, for this, an annual agreement is concluded between both parties with the right to change the conditions. When all business is done, the managing person can terminate the employment agreement by mutual consent.
There are cases when employment contracts can be concluded on a fixed-term basis for more than six months, but subject to seasonality, which provides for such employment. As a rule, these are positions that are established at the federal level, and then the usual fixed-term contract can be extended or changed.
The extension provides for an additional period, and the type of work is marked as temporary-seasonal. The manager of such events must notify the working personnel in advance, since the urgency for seasonal work that exceeds 6 months cannot be extreme and harsh - there is a plan that must be followed. And since long-term plans provide for the change of personnel, it means that the fact of a constant shortage of temporary employed personnel is known in advance.
Such circumstances are possible when employed on a social collective agreement on sectoral activities of the timber industry complex. Seasonal work such and similar services are considered annual employment:
- the logging industry, when sap, spruce and barras are mined;
- timber rafting, when residues and waste come true. This includes temporary types of work such as primary and raft timber rafting, sorting on water, loading and unloading timber on a ship. In this case, they are guided by Article 293 of the Labor Code of the Russian Federation;
- when a person is hired for a job that is not included in the list federal services employment, sanctions may be imposed on enterprises responsible for the hiring and dismissal of people, the movement of personnel in employment conditions at the federal level.
Also, such situations include those when people are sent under a contract to serve abroad.
If we talk about business trips and fixed-term contracts, then the only difference is that in the first case, persons perform work abroad, which is supposed to be done on behalf of the enterprise where the person is employed. In the second case, when an urgent contract is really needed, it is said about long trips, for a period of 1 - 3 years or more, possibly with subsequent transfer to another company. It doesn't matter for whom the work is being done.
The main thing is the conclusion of a contract based on Article 338 of the Labor Code of the Russian Federation. In addition, business trips of this type can be associated with the expansion of the company's base when it enters the international market, and there is a need to send a person to fulfill all the conditions.
For example, a base or a factory is under construction, and an employee of the company must be there for almost a year. Then his duties are already different, and they are supplemented in the fixed-term contract with various entries and additions.
Other statutory provisions do not exempt staff from their rights and responsibilities. They are also entitled to annual vacation, paid sick leave and other benefits provided for a certain category of citizens.
Termination of this type of contract occurs automatically when its terms expire. This can be done ahead of schedule only with previously completed work or upon dismissal under an article or of their own free will.
Retirement is also envisaged if at that moment the pensioner is on such tasks. He draws up all the documents, after which a contract is renegotiated with him indicating new conditions. As a rule, they are duplicated.
The commentary to paragraphs 338 of the article also says that activities that require additional obligations from a person do not necessarily have to be reflected in temporary contracts, because additional obligations can be regarded as processing.
However, if we talk about the seasonality and the temporary need to be absent from the workplace, in order to exclude the fact of absenteeism, it is best to be insured with such fixed-term contracts. This will be beneficial for both parties, since the employee will not be fired (in which case) for absence from the workplace, and the employer will not be fined for non-compliance of documents with the positions occupied by the staff.
There are some enterprises that provide only seasonal employment of personnel. There, contracts for a year or more cannot be concluded. For example, the situation with children's camps, when they work only during the period summer holidays.
The same can be said about recreation centers, resort hotels, etc., where the recruitment of personnel is provided exclusively on temporary terms. Having arranged a person for a maximum of six months, there will already be a serious violation, since it is no longer possible to dismiss him, and the employer is obliged to provide a salary for the fall, when there are no longer any duties.
In such cases, only fixed-term contracts apply:
- there are conditions that meet all the requirements of temporary work;
- the enterprise really only works in the summer or during a certain season;
- the management assesses the work of the personnel as temporarily necessary;
- the bosses do not need staff all year round.
Do not confuse situations with ski resorts or beaches, where seasonality can vary depending on climate and type of business management.
If competitions are constantly held on the seas, training of athletes, workers can be there under normal contracts. If we are talking about swimming pools, whose license is designed only for 3-4 months, it means that a private or urban type enterprise cannot hire people for a period of six months. These types of firms include other companies whose areas affect the seasonality of work.
The contract expires at the end of the period for which it was concluded. At the same time, it is unacceptable that responsibilities are transferred to the powers of other persons, since companies, taking into account such conditions, cannot produce such turnover of documents and personnel. The only person who remains permanently employed is the director and accountant, who can often act as one person.
You can also not fire a person until the termination of the employment contract of a fixed-term type because of the decision to hire someone else, a more competent employee. This is a temporary fixed-term position, and it is an urgent one for a company that must either consider hiring options in advance or agree to what the job center offers. In similar situations, it is worth referring to the Resolution of the Plenum of the Armed Forces No. 2 of 2004.
There are situations when contracts with a term are concluded for two or more months, however, the work can be completed in a few days or weeks. This is realizable only if it is explained to the person in advance that his activity consists, for example, of installing a security system in another subsidiary company, and she is ready to take it for 2-3 weeks, but according to the law, an agreement must be drawn up for 2 months.
In such cases, on the initiative of both parties, a fixed-term employment contract is concluded under Art. 59 of the Labor Code of the Russian Federation, which describes the type of work and the period that is required to translate the conceived work plan into reality.
This is a separate kind of citizens who can get a job as pupils or students. If in the first case, students can work up to eighteen years in camps or other enterprises of this type, then students can constantly be in employment.
For example, a person is studying at the correspondence department, but he decided to get a job with the right to attend sessions and go on vacation. Thus, if he goes to the firm as the main employee, he is arranged according to the usual type of contracts. If he works on behalf of the university in connection with professional development, internship or for professional growth, he is satisfied with a fixed-term contract.
This is also stated in the Labor Code in Art. 59, where the work of such personnel is regarded as an internship. If a person is actually sent for an internship in another branch of the company, another city or country, only the length of stay at the company and the date of the end of the contract change. If an extension is required, the contract is renegotiated, or, if conditions permit, extended.
This practice is often found in educational institutions when teachers and lecturers are forced to take a job in other enterprises. This can be explained as temporary employment or urgent employment measures. To put it bluntly, almost every teacher works this way, but there are exceptions.
For example, a university urgently needs a dean of the faculty or a researcher in the chemistry room. Then a suitable person is selected from the staff who has the appropriate education, and until a new employee is found, the university will cooperate on a fixed-term contract with the temporarily missing staff unit.
But there are some peculiarities:
- Do not confuse a temporary commitment and a substitute position.
- Changing the frame is not a transfer of cases, but a temporary permission to manage them.
- As soon as a new person is found, all affairs are transferred to her on behalf of the previous employee, and not the one who performed the deputy position.
According to Art. 59 according to the Labor Code of the Russian Federation, a new team member can first get a job under a fixed-term contract (due to the urgent need for personnel with the right not to undergo an internship or probationary period), and then go to full-time employment for the period of the contract.
Full-time fixed-term employment is a part-time, working day with 100% wages. A fixed-term contract restricts the rights of employees who have the duties of other competent persons, and cannot contain conditions that would indicate an incomplete payment.
In fact, this is not possible, so full employment applies to both types of contracts. At the same time, an urgent agreement only allows you to temporarily come to work, so that you can leave at any time if you don’t like something, because it is the company that needs personnel, and the employee (as it were, gives in and goes to amendments) agrees to a position on his own. conditions.
In practice, everything is different, since people are afraid of temporary circumstances, temporary work and salary. However, this can only be “scary” for medical students who are forced to practice in residency. This is not the same as a master's degree in other institutes, when you can take an academic leave or quit altogether. The doctor must already go into practice to consolidate knowledge, since theory and practical experience are associated with studies for decades, and a manager can apply his knowledge in a year or two. Of course, sick leave, vacation and pregnancy are not excluded, but this affects study as a work activity.
These types of professions include both the industrial sector and the education sector, as well as medicine, where you constantly need to improve your skills. Here practice and experience are reflected in work and knowledge, and often study or business travel is necessary as part of labor relations responsibilities to improve the quality of services. For the rest, additional education may be a plus, but not for "budgetary" spheres of activity. Such personnel will always work under fixed-term contracts, especially if the activity is associated with business trips lasting several years.