Let's look at what's going on. How justified is this type of contract and when is it impossible to choose between a fixed-term and an open-ended contract?

Distinctive Features

According to the Labor Code of the Russian Federation, two types of agreement can be distinguished, with the help of which an employee and an employer can formalize their relationship with each other. Namely:

1. urgent;
2. without specifying a deadline.

In the first case, the employee’s service life is for a limited period of time, but not more than 5 years. This may be due to:

• the nature of the work;
• working conditions;
• with health or age restrictions;
• professional activity of a person.

Keep in mind: in case of concluding a fixed-term employment contract the employer does not have the right to refuse to provide an employee with annual or maternity leave, as well as sick leave. In this case, all relevant payments are retained for the employee.

Is the employee's consent required?

It is impossible to answer this question unequivocally. Each specific situation needs to be considered. In most cases, the consent of the future employee is still necessary.

In practice A fixed-term employment contract is concluded in cases where Registration of an employee for permanent employment is impossible for various reasons. For example, your health condition does not allow you to do this (this fact must be confirmed by an official certificate from a medical institution). Then his consent is needed.

Investigation workers, many scientists, professors, university teachers, and artists serve exclusively under fixed-term labor contracts, which are signed for a limited period. In most cases - for 5 years. After which they either extend it or refuse the services of this person. The employer does not need to obtain consent from these categories of specialists to sign a fixed-term contract, since there is no second option for formalizing the relationship by virtue of the law.

When consent is not needed

Let's look at it, there are no other options:

1. The employee will take the place of a temporarily absent person who is on long-term treatment, on maternity leave, on leave to care for a disabled child, etc. (i.e., absent for a valid reason and retains his place).
2. The services of this specialist are needed for a short period of time - no more than 2 months
3. An employee travels to another country. Example: to work in a branch, to improve qualifications, to undergo an internship.
4. The need for a worker depends on the time of year. Example: his services are needed in winter to clear roofs of snow and icicles.
5. The person will be employed in work unrelated to the main activity of the company. Example: an organization sells auto parts, and the roof in the warehouse is constantly leaking. The workers hired to reconstruct the warehouse building will operate under a fixed-term employment contract.
6. A group of specialists working on one project for a company and not planning further cooperation with it after completion of work on it.
7. Employees temporarily employed by an organization for an internship or practice.

By agreement: voluntary signing procedure

Part 2 of Article 59 of the Labor Code of the Russian Federation stipulates that In what cases is a fixed-term employment contract concluded? by mutual consent. Among them:

1. people with various diseases who can only work for a short period of time;
2. pensioners who came to work for the organization;
3. employees hired on a competitive basis;
4. workers whose future activities involve moving to areas with harsh climates (scientists, researchers, meteorologists, military);
5. arts and entertainment workers (actors, circus workers, TV presenters, reporters, singers);
6. people holding high-ranking positions (general directors, chief accountants and their deputies);
7. full-time students;
8. sailors;
9. employees combining work in several organizations;
10. workers fighting emergency situations (fires, floods, epidemics) and eliminating their consequences.

When is a fixed-term contract illegal?

But In what cases is a fixed-term employment contract concluded? illegal:

1. when a person worked under an open-ended contract, and management forces him to quit and sign a fixed-term one;
2. when a person retires and continues to work, but under a fixed-term contract.

Conditions of signing

The main conditions for signing a fixed-term contract are as follows:

1. consent of both parties (except for the cases listed above when it is not necessary);
2. there are no contradictions with the law.

The employee and employer express a desire to limit their cooperation to a certain period of time. After its expiration, they can, by mutual agreement, decide to terminate or extend the contract.

When signing a fixed-term contract, no pressure should be put on either party. Otherwise, it may be declared invalid.

The employer must not only indicate in the contract the basis for its conclusion for a specific period, but also make sure that the applicant has documents confirming this fact (certificates, certificates, etc.).

What should include

Traditionally in case of concluding a fixed-term employment contract it must contain the following information:

1. personal data of the person being hired (full name);
2. the basis for signing a fixed-term contract;
3. an indication of the period for which it is concluded;
4. information about the employer (name of the organization, full name of the manager or person authorized to sign);
5. the amount of remuneration that the employee will receive if he conscientiously completes the assigned tasks (can be monthly or for the entire period of work);
6. date of signing and autographs of both parties.

How to register correctly

The execution of a fixed-term employment contract begins with its signing. After which an order is issued to hire the employee mentioned in it.

Then the clerk (personnel officer) makes an appropriate note in the work book about this fact. Indicates the date when the employee was hired, details of the order regarding this, the name of the organization, and signs.

Upon expiration of the contract, the clerk makes a corresponding note in the employee’s work book. Except in cases where the contract was decided to be extended or the employee was transferred to permanent work.

In practice, concluding open-ended employment contracts with employees is much more common. However, the employer may also need a temporary worker who needs to be hired under a temporary employment contract. In the terminology of the Labor Code of the Russian Federation - under a fixed-term employment contract.

A fixed-term contract is concluded with an employee for no more than 5 years (Article 58 of the Labor Code of the Russian Federation).

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

Registration of an employee under a fixed-term employment contract is possible only if this is due to the specifics of the upcoming work or is related to the conditions of its implementation. The Labor Code of the Russian Federation states when an employer has the right to hire an employee for a certain period. For example, if an employee is expected to be sent to work abroad, or if he is hired to perform the duties of a temporarily absent employee, for example, on parental leave (Article 59 of the Labor Code of the Russian Federation).

In addition, the Labor Code of the Russian Federation contains a list of cases when concluding a fixed-term contract is possible simply by the decision of the employer, but with the consent of the employee. So, if the employer is a small business and the number of employees does not exceed 35 people, then he has the right to enter into fixed-term employment contracts with any employees (regardless of what work they will perform), if they do not object.

If there are no grounds for concluding a fixed-term employment contract, but it was nevertheless drawn up, then the court can reclassify it as permanent at the request of the employee (Article 58 of the Labor Code of the Russian Federation). A similar outcome is possible if during the proceedings it turns out that:

• the employee agreed to sign a fixed-term contract under pressure (clause 13 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2);
• fixed-term contracts, issued for a short period, were concluded multiple times to perform the same labor function (clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

Contents of a fixed-term employment contract

A fixed-term contract with an employee must indicate the period for which the contract was concluded and the basis for issuing a fixed-term contract (Article 57 of the Labor Code of the Russian Federation, Letter of Rostrud dated November 30, 2009 N 3523-6-1). If the employment contract does not specify a term, it will be considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation). Note that the period can be determined either by the exact date or by the occurrence of a certain event (Article 79 of the Labor Code of the Russian Federation, Letter of Rostrud dated December 28, 2006 N 2264-6-1).

A conscript employee can be placed on a probationary period of (

Such an agreement is concluded for no more than five years, unless otherwise provided by the Labor Code or other federal laws. Please note: if the employment contract does not indicate its validity period, it is considered to be concluded for an indefinite period.

Conclusion of a Fixed-Term Employment Contract, sample download

The article discusses the issues of correct acceptance and execution of a fixed-term employment contract. Below are the questions and answers.

1) Is it possible hire workers on a fixed-term contract, and after its expiration, if the employees prove themselves, hire them for permanent work, i.e. Should the employment contract be for an unlimited period?

2) Is it possible do not employ them during this period, and enter only after these months?

3) Do I need to make an entry in the work book? if an employee works under a fixed-term employment contract for 3 months?

1. The conclusion of a fixed-term employment contract can only take place in the cases provided for. The possibility of its conclusion in other cases does not depend on the will of the parties to the employment contract, since this limits the rights of the employee.

For example, if you have an existing position, you cannot accept a fixed-term contract. Then you need to conclude a contract for certain types of work for a certain period.

If there is no such position, then such a position is introduced by order.

It should be noted that since it provides a right, not an obligation the employer to enter into a fixed-term employment contract in the cases provided for by this norm, the employer may exercise this right provided compliance with the general rules for concluding a fixed-term employment contract established by.

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Employment contract, indication of urgency

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

Indicate the place where the document was compiled. The place of compilation or publication is indicated taking into account the accepted administrative-territorial division; it includes only generally accepted abbreviations (GOST R 6.30-2003)

If an employer allows an employee to work without drawing up an employment contract, then the contract must be concluded no later than three working days from the date of the person’s actual admission to work (Article 67 of the Labor Code of the Russian Federation).

The employee's position is indicated in accordance with the staffing table (Article 57 of the Labor Code of the Russian Federation). The employee’s place of work is also indicated (Article 57 of the Labor Code of the Russian Federation), working conditions at the workplace: optimal, acceptable, harmful, dangerous - in accordance with the results of a special assessment of working conditions (Part 2 of Article 57 of the Labor Code of the Russian Federation), the period for which an agreement has been concluded, and the reason for establishing the period (seasonal work, temporary absence of the main employee) (Article 57 of the Labor Code of the Russian Federation), the day from which the employee must begin work. If the employment contract does not specify the start date of work, then the employee is obliged to start work the next day after the conclusion of the contract (Article 61 of the Labor Code of the Russian Federation)

Download a fragment of a fixed-term employment contract(.doc 36Kb)

Moreover, if there is a dispute in court, by virtue of duty to prove the presence of circumstances that make it impossible to conclude an employment contract with an employee for an indefinite period, rests with the employer. If the employer fails to prove such circumstances, it should be assumed that the employment contract with the employee is concluded for an indefinite period.

Because, if the work itself is indefinite and is one of the permanent activities for the organization - that It is illegal to set the term of an employment contract.

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Download a sample fixed-term employment contract(.doc 52Kb)

2. If a fixed-term employment contract has been concluded, the employee must be included in the staff, otherwise enter into one.

3. It is necessary to make an entry in the work book if the employee is on staff.

The urgent nature of the employment relationship (for any of the reasons listed above) does not in any way affect the procedure for filling out the employee’s work book. Thus, it should not indicate that the contract is concluded for a certain period. After all, this is not provided for either by the Labor Code, or by the Instructions for filling out work books (approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69), or by the Rules for maintaining and storing work books, producing work book forms and providing them to employers (approved by Resolution of the Government of the Russian Federation dated April 16, 2003 No. 225).

If the employer enters into the work book information about the period for which the employment contract is drawn up, this will be a violation of the procedure for maintaining work books, and may entail administrative liability.

. Work book

The work book of the established form is the main document about the employee’s work activity and length of service.
......
Employer (except for employers - individuals who are not individual entrepreneurs) maintains work books for each employee who has worked for him for more than five days, in the case where the work for this employer is the main one for the employee.
......

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Features of the preparation of personnel documents when concluding a fixed-term employment contract with an employee

Document type	Filling feature
Employment contract	A mandatory condition that a fixed-term employment contract must include is a period. If the contract does not contain a provision on its validity period, it is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation). Even if the deadline is specified in the employment order. In addition, write in the contract the circumstance (reason) that served as the basis for its conclusion (Part 2 of Article 57 of the Labor Code of the Russian Federation, letter of Rostrud dated November 30, 2009 No. 3523-6-1)
Additional agreement to a fixed-term employment contract	It is concluded that if the term of the employment contract has expired, but the employment relationship actually continues, and neither party has demanded its termination, that is, the fixed-term employment contract is transformed into an open-ended one (letter of Rostrud dated November 20, 2006 No. 1904-6-1)
Order for employment according to form No. T-1 (T-1a)	Fill in both date cells “from” and “to” (in form No. T-1, the date is in the “Hire” column, and in form No. T-1a - in the “Work period” column). If the term in the contract is determined not by a specific date, but by an indication of an event, the “to” cell will contain the corresponding text. For example, “by the date the temporarily absent employee returns from parental leave.” To make it fit, the cell needs to be expanded Both forms of orders were approved by Resolution of the State Statistics Committee of Russia dated January 5, 2004 No. 1
Work book	The “urgency” of the contract is not reflected in the employee’s work book in any way (letter of Rostrud dated April 6, 2010 No. 937-6-1). An entry for employment must be made in the general manner in accordance with paragraph 3.1 of the Instructions, approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69. When terminating a fixed-term employment contract, make an entry in the work book: “Dismissed due to the expiration of the employment contract, clause 2 of part 1 of Article 77 of the Labor Code of the Russian Federation.” An exception to this rule will be cases where the employment relationship actually continues and neither party has demanded its termination.

The same can be done when registering an employee to perform specific work, the deadline for which cannot be established in advance. Then the contract states that its validity period expires upon completion of the work for which the employee was hired. If a contract with an employee is concluded for the duration of seasonal work, then it can be indicated that it is valid until the end of the season.

Is there a minimum period? Can we, for example, conclude an employment contract for a period of seven days?

Yes, you can. There is no minimum period established for such agreements. True, according to Article 79 of the Labor Code of the Russian Federation, the company is obliged to notify the employee about this three days before the expiration of the employment contract. It turns out that in order to comply with this requirement, the term of the employment contract cannot be less than four days.

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End of a fixed-term contract, Extension, Application, Dismissal.

One of the employees has a fixed-term employment contract, which is not planned to be renewed. The contract ends on February 28. Should an employee write a letter of resignation from this date?

There is no need to complete such an application. The expiration of an employment contract is in itself a sufficient basis for its termination. The end date of the employment contract in your case will be February 28, the same day is considered the day of dismissal of the employee. That's why a dismissal order must be issued no later than this date. And given that this day falls on a weekend, the order must be issued no later than February 25.

In this case it should notify the employee of dismissal in writing no less than within three calendar days until the contract is terminated (). If after the expiration of the contract labor relations continue, and neither party has demanded their termination, then the conditions regarding the duration of the contract become invalid. In this case, it will become an employment contract concluded for an indefinite period. Then it will be possible to terminate the contract with the employee only on a general basis ().

Compose HR documents for free in a web service using ready-made templates

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In what cases is it really possible to conclude a fixed-term employment contract?

As a rule, when hiring employees, the company signs open-ended employment contracts with them. But it is possible to conclude an agreement before a certain day. True, it is not always possible to arrange it on your own initiative.

Firstly, there are a number of cases in which a company is simply obliged to enter into fixed-term employment contracts. For example, when employees are hired for temporary or seasonal work. This also includes drawing up contracts with those who are temporarily transferred to another job. In addition, a fixed-term employment contract is drawn up with employees who will work abroad and with those who are hired to perform a specific job. If workers are registered in a company created for a certain time, then only fixed-term contracts are also concluded with them. A complete list of situations in which an organization is obliged to enter into a fixed-term contract is given in.

Secondly, a fixed-term employment contract can be drawn up by agreement of the parties. But again, not in all cases, but only in those provided for by labor legislation. This is possible, for example, if an employee is hired by a small enterprise with up to 35 employees. If we are talking about retail trade or consumer services enterprises, then their number should not exceed 20 people. You can also conclude a fixed-term contract by agreement of the parties with a pensioner, full-time student, part-time worker, creative worker, or those who have restrictions on work for medical reasons. A complete list of situations in which a company has the opportunity to conclude a fixed-term contract by agreement of the parties is given in the same Article 59 of the Labor Code of the Russian Federation.

As you can see, in order to draw up an employment contract for a specific period, the company’s desire alone is not enough.

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It is better to notify the employee in advance about the expiration of the contract.

To prevent this from happening, it is important for the company to notify the employee about the termination of the employment contract in advance. Ideally, such a warning is received at least three days before the expiration of the contract. Moreover, an application from the employee to terminate such an agreement is not required.

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It is not possible to extend a fixed-term contract for another term

A fixed-term employment contract cannot be extended. If the company needs an employee even after the expiration of the contract, then he needs to be fired and rehired under a new fixed-term or open-ended contract.

EXCEPTIONS

There are only two exceptions to this rule.

The first concerns pregnant workers. If a fixed-term contract expires during a woman’s pregnancy, then the company, upon her written application, may extend the contract until the birth. This is discussed in part 2.

The second applies to scientific and teaching staff who are elected by competition to the position they previously held. (Part 8)

A special journal will help you not to miss the expiration date of the contract.

The more fixed-term contracts a company has, the easier it is to miss the notice period for their termination. A journal for recording the end of fixed-term employment contracts will help solve the problem. It will make it possible to unconditionally fulfill the requirement. It will be enough to look at the journal and establish an agreement that will expire in the near future. This is more convenient and clear than every time picking up the originals of the contracts themselves and looking for deadlines in them.

Buy a web service for maintaining personnel records and payroll calculations

Is it possible to extend a fixed-term employment contract without terminating it when the employee has not yet completed work?

First, determine how long you want to extend the contract with your employee. If you are going to extend your employment relationship for a certain period, you can do this through dismissal and hiring under a new fixed-term contract. This is due to the fact that a fixed-term employment contract is concluded for a certain period, but not more than five years (Articles 58, 59 of the Labor Code). However, the law does not establish the possibility of extending a fixed-term contract. Therefore, extending the term of the contract will be the basis for recognizing it as indefinite. The exception is situations when:

• The fixed-term employment contract expires during the woman’s pregnancy. Then the employer, upon a written application from the employee, can extend the term of the employment contract until the end of the pregnancy (Part 2 of Article 261 of the Labor Code). In some cases, a fixed-term employment contract with a pregnant employee can be terminated;
• An employee is elected through a competition to fill the position of a scientific and pedagogical worker previously occupied by him under a fixed-term employment contract (Article 332 of the Labor Code).

Therefore, in the general case, an organization does not have the right to draw up an additional agreement to a fixed-term employment contract to change its validity period for a certain period. An organization can only conclude a new employment contract with an employee after dismissal under the old contract. The legality of this is confirmed by the Supreme Court in its ruling dated June 27, 2014 No. 41-KG14-10.

If the employer, with the consent of the employee, intends to extend the employment relationship indefinitely, then this can be done without dismissal. To do this, when the fixed-term contract expires, neither party should demand its termination. Then the contract becomes indefinite and can be extended by drawing up an additional agreement and order (Article 58 of the Labor Code, letter of Rostrud dated November 20, 2006 No. 1904-6-1).

An exception to this procedure applies to the heads of organizations for which the validity period of the employment contract is established by the constituent documents of the organization and the norms of federal legislation (Article 275 of the Labor Code). In any case, they need to be fired and accepted for a new term, defined in the statutory documents.

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Example of a notice of termination of a fixed-term employment contract

Limited Liability Company
"Your Company"

NOTIFICATION

Ivanova Maria Ivanovna,

working as an accountant

Dismissal due to expiration of a fixed-term employment contract

Dear Maria Ivanovna!

I notify you that on June 4, 2010, the term of employment contract No. 15-TD dated February 4, 2010 expires. The employment contract will be terminated in accordance with paragraph 2 of part 1 of article 77 of the Labor Code of the Russian Federation.

We ask you to sign for delivery of this notice on the second copy and submit it to the Human Resources Department.

General Director __________________ I. I. Sidorov

I was given notice of upcoming dismissal due to the expiration of the employment contract.

M.I. Ivanova

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Fixed-term employment contract as explained by the Ministry of Labor

How to correctly draw up a fixed-term employment contract and an order to hire a “temporary” employee? How to transfer the “main” employee to another position if she is on maternity leave? Is it necessary to terminate the fixed-term employment contract with the employee replacing her? The answers to these questions are contained in the letter of the Ministry of Labor dated March 21, 2018 No. 14-2/B-191.

How to register the employment of a “temporary” employee for the period of maternity leave of the “main” one?

One of the situations when it is possible to conclude an employment contract for a certain period is hiring to perform the duties of a temporarily absent employee. In this case, the absent employee retains his place of work, but another person can be temporarily hired in his place (Part 1 of Article 59 of the Labor Code of the Russian Federation). A contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work (Part 3 of Article 79 of the Labor Code of the Russian Federation).

When replacing a temporarily absent employee, the fixed-term employment contract should state that it is concluded for the duration of the absence of the main employee (full name). Hiring is formalized by an order (instruction) of the employer, issued on the basis of a concluded employment contract (Part 1, Article 68 of the Labor Code of the Russian Federation). The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract. In the employment order, in the “by” column, you can indicate, for example: “before the release of your full name. (key worker) to work.”

Fixed-term employment contract upon transfer of the “main” employee

When the main employee is transferred to another position, the condition on the urgent nature of the work of the replacement employee loses its force (after all, the “main” employee will actually perform job duties for another position in another structural unit). Accordingly, a fixed-term employment contract can be converted into an open-ended one. What to do in such a situation?

If an agreement has been reached with the “key” employee regarding the transfer, he should interrupt his parental leave. At the same time, on the day of his return to work, the fixed-term employment contract with the replacement employee is terminated. Then you need to arrange the transfer of the “main” employee. After this, he has the right to resume parental leave, and a new fixed-term employment contract can be concluded with the replacement employee.

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Today, it is a common practice to hire staff. Such a document allows you to agree on the responsibilities and rights of the employee and his employer, and establish the procedure for remuneration. There are several types of employment contracts.

Below are issues directly related to the procedure for conclusion and the specifics of its validity. Since the temporary nature of agreements between the parties does not guarantee stability, this document raises many questions among citizens.

An employment contract will ensure that the employee respects his rights

Each employment contract includes a number of mandatory points:

1. Deadlines for starting work.
2. Name of position, profession, qualification level.
3. Where will the work be carried out?
4. Rights, responsibilities groan.
5. Description of the characteristics of work, compensation in the presence of difficult conditions.
6. Payment procedure.
7. When will the employee be given rest, when should work begin and end?
8. Characteristics.

If one of the listed points is missing, the contract is said to have been drawn up with violations.

Features of a fixed-term contract

The main property of a fixed-term employment contract is that it is concluded for a certain period; when the specified period passes, the employment relationship ends. This type of contract is concluded if it is not possible to hire an employee on a permanent basis or there is no such need.

This often happens when performing work that is seasonal in nature, or in cases where a limited amount of work needs to be completed. There is no minimum time period for a fixed-term contract; the duration is limited to 5 years.

To perform a fixed-term contract, any workers with the required level of qualifications are used. To prevent a fixed-term contract from becoming a violation, you need to know in what situations it is possible to conclude it. The following are the moments when the type of work requires the preparation of fixed-term contracts:

• If it does not take more than 2 months to perform professional duties.
• If a team member is temporarily unable to begin performing duties, and it is impossible to replace him with other team members.
• If the employee is working.
• When operating a temporary organization.
• If necessary, ensure the performance of work that does not correspond to the general profile of the enterprise.
• To complete specific tasks within a limited period.
• During an internship.
• When employing a person referred by the employment service.
• When employed as an alternative civil service.
• Other cases that do not contradict current laws.

The employment contract should be studied very carefully

The restrictions mentioned above are not a significant obstacle to signing a fixed-term contract. This method of formalizing labor relations is very widespread.

This list can be expanded to include situations when an agreement is signed. They can be like this:

1. Hiring. If a person works on a permanent basis, then reaching retirement age is not considered a legal reason for transferring him to a fixed-term contract.
2. Employment for people with disabilities who, by law, have only temporary employment opportunities. In this case, a medical report drawn up in accordance with the requirements of current legislation is attached.
3. Employment in small business companies. In this case, the total number of employees should not exceed 20 people.
4. Place of work - the Far North or regions with a similar status.
5. When hired to eliminate the consequences of disasters and emergencies.
6. Upon admission to a place on a competitive basis.
7. When employing creative workers and athletes.
8. Hiring managers, deputies, chief accountants, the type of enterprise does not matter, nor does the form of ownership.
9. Reception.

Drawing up a fixed-term contract

Fixed-term employment contract: sample

In contracts of this type, data similar to the unlimited option is recorded. The document must contain the following:

1. Full name of the person, his data;
2. information about the organization;
3. date, place of conclusion of the contract;
4. place of performance of duties;
5. all basic functions of the employee;
6. payment features;
7. information about the employee who is hiring;
8. characteristics of social insurance;
9. additional information about the nature of the work and special conditions.

In addition to the information listed above, the fixed-term contract also includes the following:

• a description of the reason that became the basis for this method of hiring;
• validity period (both a temporary designation and an indication of the implementation of specific amounts of work);
• when hired for a period of 2 months - six months - the possibility of a probationary period of 2 weeks; for other terms of employment, the probationary period is made standard;
• when hiring for temporary work - a description of the types of activities, expiration dates of the contract (no more than 2 months);
• to fill out an order, take form T-1, T-1a, in which lines “from” and “to” are filled in detail, and the latter must contain all the specific information;
• The work book is drawn up in the usual way; at the end of the contract, it is written: “... in connection with the expiration of the employment contract.”

Features of validity periods

Termination of a fixed-term contract occurs according to the specified date

The termination of a fixed-term contract is said to occur when the specified period ends. The wishes of the parties do not matter, but formally the employee or employer must express their intention to terminate the relationship.

Moreover, the dismissal takes place without. The only exception is compensation for vacation. The dismissal procedure itself under such circumstances is extremely simple. By law, the time frame of the contract varies up to 5 years. The document does not stipulate the terms of the work activity or its validity period is more than 5 years - it is considered unlimited.

All other time frames for drawing up a fixed-term contract only affect the procedure for establishing a probationary period. We can name other cases when a fixed-term contract begins to be considered unlimited.

If the audit reveals violations related to the impossibility of concluding a fixed-term contract, it begins to be considered unlimited.

When extended for another term, because the Labor Code does not provide for the extension of a fixed-term contract. There is the only exception here: if a woman whose employment contract has ended writes a statement and indicates that she. In this situation, the contract is extended until the full expiration of the maternity leave period.

When violations are established that were committed by management in order to save on providing the employee with the necessary rights and guarantees usual for employment. An urgent option can be converted into an indefinite one, if there is the will of both parties.

Features of termination of a fixed-term contract

A fixed-term contract can be converted into an open-ended one

To terminate a fixed-term contract in compliance with all formalities, you must take care of the following:

1. When the validity period expires, the contract is terminated or issued for an indefinite period.
2. The reasons must be given.
3. The employee is notified of the termination of the contract no later than 3 days before the date. For this purpose a written notice is provided.
4. Basic requirements for written notification: full name, terms, full name of the organization, reasons that became the basis for termination of the contract. The form doesn't matter.
5. You can terminate the document earlier than the deadline specified in the document.
6. If an employee is hired for a permanent position after a fixed-term contract, dismissal is not required.
7. If a woman carrying a child works under a fixed-term contract, she remains employed in this position until the end of her maternity leave. She cannot be fired before this date. However, there are exceptions here too. If this woman is hired during the employee’s absence, and he returns to his previous position, then the pregnant woman is offered another position. If there is no vacant position suitable for her qualifications and health characteristics, then the contract is terminated.
8. If the contract period has expired, the employee has no right to insist on further work at this place. Management, in turn, cannot retain an employee or prevent his dismissal.
9. If the agreements have expired, the employee notified the employer that he was stopping work, worked the last scheduled day and did not come back, this cannot be designated as.
10. Work and rest schedule.

The following video will introduce you to the specifics of drawing up a fixed-term employment contract:

Summer is the time for vacations, seasonal and temporary work. During this period, fixed-term employment contracts are most often concluded. What are their features compared to open-ended contracts? What do employees and employers lose and gain when concluding a fixed-term employment contract? You will find answers to these and other questions in the article.

Labor legislation provides for two types of employment contracts. According to Part 1 of Article 58 of the Labor Code of the Russian Federation, contracts can be concluded:

• for an indefinite period;
• for a certain period, but not more than five years. Let's talk in more detail about a fixed-term employment contract.

When a fixed-term employment contract is concluded

In some cases, the nature of the work to be performed or the conditions for its implementation do not allow formalizing an employment relationship with an employee for an indefinite period. Therefore, a fixed-term employment contract is concluded with him.

The grounds for concluding a fixed-term employment contract are listed in Part 1 of Article 59 of the Labor Code. And Part 2 of Article 59 of the Labor Code of the Russian Federation specifies cases when a fixed-term employment contract can be concluded by agreement of the parties (see table below). At the same time, the list of grounds for establishing the term of the employment relationship is exhaustive. This is also stated in the letter of Ros-Labor dated December 18, 2008 No. 6963-TZ.

Table.

Grounds for concluding a fixed-term employment contract
unconditional (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)
Temporary absence of the main employee Temporary work Seasonal work Work abroad Work outside the normal scope of the employer's activities Temporary increase in production volume The employing organization was created for a specific period For the period of study and internship Election to office Ensuring the activities of elected bodies Sending an employee to temporary work by employment authorities Alternative civil service	Employer - small business entity The employee is a pensioner Medical indications Performing work requires moving to the Far North Urgent work to prevent disasters, etc. Election to a position on a competitive basis Creative professions in media, cinematography, etc.* With managers, deputy managers, chief accountants The employee is undergoing full-time training The employee is a part-time worker

*The list of works, professions, positions of creative workers was approved by Decree of the Government of the Russian Federation of April 28, 2007 No. 252.

If the specified grounds are absent when registering an employment relationship, the employer cannot conclude a fixed-term employment contract with the employee. Otherwise, in a labor dispute, this fact will be qualified as a violation of the employee’s rights. In addition, it is impossible to conclude fixed-term employment contracts multiple times without a temporary break, if we are talking about employees performing the same job function. This, in particular, is stated in paragraph 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution No. 2). Taking into account the circumstances of the case, such contracts can be recognized as concluded for an indefinite period.

We draw up a fixed-term employment contract

Now let's move on directly to drawing up a fixed-term employment contract. As mentioned above, it is concluded only if there are grounds established by the Labor Code or other federal law. Therefore, when drawing up a contract, you need to indicate for what reasons it is concluded with the employee for a certain period. This requirement is set out in paragraph 4 of part 2 of article 57 of the Labor Code of the Russian Federation.

Mandatory terms of the employment contract

A fixed-term employment contract, like any other, must contain mandatory conditions. According to Part 2 of Article 57 of the Labor Code, this is:

• place of work;
• labor function;
• work start date;
• wages;
• operating mode;
• compensation;
• nature of the work;
• condition on compulsory social insurance, etc.

How to determine the terms of the contract

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

The expiration date of the contract has been determined. If a specific date is set for the end of the employment contract, it must be written down in the document. Let us remind you that a fixed-term contract can be concluded for a period not exceeding five years.

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

Let's look at how an entry about a deadline can be formulated using an example.

Example 1

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

Solution

The clause of the contract that states the term of its validity will look like this:

"2. Duration of the contract

2.3. The contract was concluded for five months for the period of operation of the amusement park from May 1 to September 30.

The expiration date of the contract has not been determined. In some cases, it is impossible to determine the end date of an employment contract. Here are some typical situations when the contract specifies a condition regarding its validity period, and not a specific date. Thus, concluding a fixed-term employment contract is possible:

• in connection with the employee going on maternity leave and child care leave;
• employee illness;
• performing seasonal work.

In these cases, the end of the employment contract is associated with a specific event, for example, the employee’s return to work after a long illness. In this regard, Resolution No. 2 provides the following explanations. If a fixed-term employment contract is concluded to perform a specific job, and the exact date of its completion is unknown, the contract is terminated upon completion of this work by virtue of Part 2 of Article 79 of the Labor Code.

Example 2

Confectioner P.L. Pryanishnikova was accepted into Vanil LLC for the duration of pastry chef V.A. Kalacheva has been undergoing treatment in a hospital since August 1, 2010. With P.L. Pryanishnikova signed a fixed-term employment contract. How will the term of the contract be spelled out if it is unknown when exactly V.A. Will Kalacheva return to her workplace?

Solution

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

"2. Duration of the contract

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

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

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

2.5. If the main employee receives V.A. Kalachev’s disability with limited ability to work or dismissal, the Employer extends this contract with his replacement Employee for an indefinite period.”

Probation

Is it possible to establish a probationary period when concluding a fixed-term employment contract? It all depends on how long and for what work the employee is hired.

Seasonal work. When concluding an employment contract for the duration of seasonal work, a probationary period of more than two weeks cannot be established (Article 70 of the Labor Code of the Russian Federation). In this case, the seasonality condition must be included in the text of the contract in accordance with Article 294 of the Labor Code.

Temporary work. When drawing up a fixed-term contract for the duration of temporary work (up to two months), a probationary period is not established (Article 289 of the Labor Code of the Russian Federation).

Other works. When concluding an employment contract for a period of two to six months, the trial cannot exceed two weeks (Article 70 of the Labor Code of the Russian Federation).

Let us remind you that according to Article 70 of the Labor Code of the Russian Federation, a test for hiring is also not established:

• pregnant women and women with children under the age of one and a half years;
• persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;
• under the age of 18;
• those who have graduated from state-accredited educational institutions of primary, secondary and higher vocational education and who are entering work for the first time in their specialty within one year from the date of graduation from the educational institution;
• those elected to an elective position for paid work;
• invited to work by way of transfer from another employer as agreed between the employers;
• to other persons in cases provided for by the Labor Code, other federal laws, and a collective agreement.

The probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of branches, representative offices or other separate structural divisions of organizations - six months, unless otherwise established by federal law.

We draw up a fixed-term employment contract

Let's move on directly to the design of the document. As we noted above, all mandatory conditions must be included in it.

Particular attention should be paid to the reasons why a fixed-term employment contract is concluded and to the timing of its expiration. Let's look at the preparation of this document using an example.

Example 3

Civil engineer E.V. Nezabudkin was hired by Project-Design LLC, created specifically to service the international youth sports games "Sportlantida", planned in Volgograd in August 2010. Preparations for them began in January 2010, construction work should be completed on July 15, 2010. The organization will operate until July 31, 2010. With E.V. The Nezabud-kins need to conclude a fixed-term employment contract for the period of existence of this organization. How to compose it?

Solution

The fixed-term agreement is shown below.

Entry in the work book during employment

According to paragraph 4 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225, information about the employee, the work he performs, transfer to another permanent job, dismissal, and also indicate the grounds for termination of the employment contract and enter information about rewards for success in work.

Accordingly, if a fixed-term employment contract has been concluded with an employee for any period, it is necessary to make an entry about this in the work book or create a new one if there is none. The employer must make a record of hiring in the conscript’s work book if he has worked for him for more than five days and this work is the main job for this employee. This is the requirement of paragraph 3 of the Rules for maintaining and storing work books, producing work book forms and providing them to employers, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225.

However, this does not mean that it is necessary to indicate in the work book that a fixed-term employment contract has been concluded. Also, attention is not focused on the fact that the employee, for example, replaces an absent specialist. It is enough to make a standard entry, for example: “Hired as a mechanic,” indicating the serial number of the entry, the date, as well as the details of the hiring order. This, in particular, is stated in the letter of the Federal Service for Labor and Employment dated 04/06/2010 No. 937-6-1.

Vacation of a conscript employee

An employee who has entered into a fixed-term employment contract is generally granted annual paid leave while maintaining his place of work and earnings (Article 114 of the Labor Code of the Russian Federation). Its duration is at least 28 calendar days per working year (Article 115 of the Labor Code of the Russian Federation). If an employee has worked for less than a year, the duration of leave is calculated in proportion to the time worked.

The right to use vacation for the first year of work arises for the employee after six months of continuous work with this employer (Part 2 of Article 122 of the Labor Code of the Russian Federation).

Vacation payment is made based on the average wage, which is calculated according to the rules established in Article 139 of the Labor Code, as well as in the Regulations on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation dated December 24, 2007 No. 922.

In accordance with Part 1 of Article 128 of the Labor Code of the Russian Federation, for family reasons and other valid reasons, an employee, on the basis of his written application, may be granted leave without pay for the duration established by the labor legislation of the Russian Federation and the internal labor regulations of the employer.

Extension of a fixed-term employment contract

In what cases can a fixed-term employment contract be extended? Let's consider several situations.

Mandatory contract extension

A fixed-term employment contract can be necessarily extended only in one case - if it coincides with the employee’s pregnancy period. In this situation, the employer is obliged to extend the term of the employment contract until the end of the pregnancy. This is stated in Part 2 of Article 261 of the Labor Code.

The employee must submit a written application and bring a medical certificate confirming the state of pregnancy.

Prolongation by agreement of the parties

Part 4 of Article 58 of the Labor Code says the following. In the event that neither party requested termination of the fixed-term employment contract due to its expiration and the employee continues to work, the condition on the fixed-term nature of the employment contract loses force. After this, the employment contract is considered concluded for an indefinite period. Is it necessary to document the fact of changing the status of a fixed-term contract to an open-ended one?

In fact, the change in contract status occurs automatically. After this, the fixed-term employee is subject to labor law standards that are provided for employees who have entered into permanent employment contracts. For example, such an employee can no longer be dismissed on the basis of the expiration of the employment contract (Clause 2 of Article 77 of the Labor Code of the Russian Federation).

However, in this case it is advisable to prepare a number of documents. Such recommendations are given in the letter of Rostrud dated November 20, 2006 No. 1904-6-1.

First of all, this is an additional agreement to the employment contract. It can be worded as follows: “State clause No.... in the following wording: “This employment contract is concluded for an indefinite period.”

Fixed-term contract with a pensioner

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

Consequently, employment contracts can be concluded with retired employees for an indefinite period. There is also no need to dismiss an employee who has received pensioner status and enter into a fixed-term contract with him. He can continue to work on the basis of a previously concluded open-ended contract.

Termination of a fixed-term employment contract

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

The notification is drawn up in any form. It must indicate the termination date of the contract and the justification (for example, in connection with the completion of work).

Order of dismissal

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

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

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

Entry in the work book

On the day of termination of the employment contract, the employee must be given a work book (Part 4, Article 84.1 of the Labor Code of the Russian Federation).

According to clause 5.2 of the Instructions for filling out work books, approved by Resolution of the Ministry of Labor of Russia dated October 10, 2003 No. 69, upon termination of an employment contract on the grounds provided for in Article 77 of the Labor Code of the Russian Federation, an entry about dismissal is made in the work book with reference to the corresponding paragraph of this article.

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

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

After receiving the work book, the employee must sign in the work book record book and their inserts in the form approved in Appendix 3 to Resolution of the Ministry of Labor of Russia No. 69 dated October 10, 2003, and on the last page of the personal card, the unified form of which No. T-2 was adopted by the Resolution Goskomstat of Russia dated January 5, 2004 No. 1.

If temporary disability coincides with the expiration of a fixed-term contract

If an employee is on sick leave at the time his contract expires, the fixed-term employment contract will not be renewed. The employee is dismissed on general grounds. However, sick leave must be paid. The employer is obligated to do this by Article 183 of the Labor Code of the Russian Federation. It states that upon the occurrence of temporary disability, the employer pays the employee temporary disability benefits in accordance with federal laws.

In turn, paragraph 2 of Article 5 of the Federal Law of December 29, 2006 No. 255-FZ “On compulsory social insurance in case of temporary disability and in connection with maternity” states that temporary disability benefits are paid to insured persons not only during the period of employment agreement, but also in cases where illness or injury occurred within 30 calendar days from the date of termination of its validity.

Taxation and accounting of payments upon dismissal

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

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

Upon dismissal, an employee is paid wages for time worked, compensation for unused vacation, and in some cases, severance pay.

The first two payments are subject to:

• Personal income tax (clause 1 of article 210 of the Tax Code of the Russian Federation);
• insurance premiums (Clause 1, Article 7 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance contributions to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds”).

Amounts of wages and compensation are included in the taxpayer’s expenses for labor costs (Part 1 of Article 255 of the Tax Code of the Russian Federation).

Wages are subject to contributions for injuries (clause 3 of the Rules for the accrual, accounting and expenditure of funds for the implementation of compulsory social insurance against accidents at work and occupational diseases, approved by Decree of the Government of the Russian Federation dated March 2, 2000 No. 184).

Compensation is not subject to contributions for injuries (clause 1 of the List of payments for which insurance premiums are not charged to the Social Insurance Fund of Russia, approved by Decree of the Government of the Russian Federation dated July 7, 1999 No. 765).

Severance pay within the limits of the norms is not subject to personal income tax, insurance contributions (subclause “e”, clause 2, part 1, article 9 of the Federal Law of July 24, 2009 No. 212-FZ), and is not subject to contributions for injuries (clause 1 of the List of payments , for which insurance premiums are not charged to the Federal Social Insurance Fund of Russia), reduces the taxable base for income tax as part of labor costs (clause 9 of Article 255 of the Tax Code of the Russian Federation).

In accounting, wages, severance pay and compensation for unused vacation are classified as expenses for ordinary activities (clause 5 of PBU 10/99).

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

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

DEBIT 70 CREDIT 68 subaccount “Calculations for personal income tax” - personal income tax is withheld from payments that are subject to this tax;

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