How to write a fixed term contract. We draw up a fixed-term employment contract

In Russia, when a citizen finds a job in an organization or an individual entrepreneur, the legislation provides for the mandatory conclusion of an employment contract. Such an agreement can be concluded without specifying the period of its validity - this is an agreement for an indefinite period. And also Russian legislation provides for the conclusion of fixed-term employment contracts. Such contracts are not always allowed to be concluded. Therefore, employers should figure out by whom, when and for how long a fixed-term employment contract can be signed, whether it can be changed, terminated or made indefinite. And also to study all the pros and cons of a fixed-term employment contract.

Fixed-term employment contract: concept, features

To begin with, let's define how a fixed-term labor contract differs from a contract concluded for an indefinite period, and what they have in common.

Art. 58 of the Labor Code of the Russian Federation establishes that if the term of its validity is not indicated in the employment contract, then it cannot be classified as fixed-term employment contracts. Russia has not established (as, for example, in Japan) the procedure for concluding a life-long employment contract. However, our labor legislation is focused on protecting the labor rights of employees.

That is why the employer cannot conclude a fixed-term employment contract with an employee solely at his own request. Labor Code in Art. 59 of the Labor Code of the Russian Federation determines in which cases it is necessary to conclude a fixed-term employment contract, and when this is permissible by agreement of the parties.

The differences between a fixed-term employment contract and a regular one are due to the reasons for their conclusion and the duration

It should be noted that a fixed-term employment contract, in terms of its main characteristics, aimed at protecting the labor rights of employees, does not differ from a contract concluded for an indefinite period.

The most important quality of a fixed-term employment contract is that this contract has all the basic qualities of an employment contract. Such an agreement must contain all the main characteristics specified for an employment contract, Art. 56 of the Labor Code of the Russian Federation. A fixed-term employment contract fixes the mode of work and rest, the employee's work function, working conditions, payment terms, social insurance, etc.

For a fixed-term employment contract, all the essential conditions prescribed in the usual TD apply

What are the grounds for concluding a fixed-term employment contract?

Russian legislation provides for two options when it is possible to conclude a fixed-term employment contract:

1. A fixed-term employment contract is concluded when an employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be performed or the conditions for its performance. These cases are provided for by part one of Article 59 of the Labor Code of the Russian Federation.
2. A fixed-term employment contract may be concluded by agreement of the parties to the employment contract without taking into account the nature of the work to be done and the conditions for its implementation. This is permissible in cases where the temporary nature of the employment contract cannot significantly violate the labor rights of the employee. Such cases are provided for by part two of Article 59 of the Labor Code of the Russian Federation.

The grounds for concluding a fixed-term employment contract are set out in Art. 59 Labor Code of the Russian Federation

Disadvantages and advantages of a fixed-term employment contract

The conclusion of a fixed-term employment contract can have pros and cons for both the employee and the employer.

Employee Disadvantages:

• cooperation with the employer will inevitably end at some point;
• simplified dismissal procedure (after the end of the contract period or after the work is completed);
• reduced dismissal period: notification 3 days before the end of work or a day before the main employee leaves (Article 79 of the Labor Code of the Russian Federation);
• if the text of the contract was drawn up incorrectly, the employee has a chance to transfer urgent cooperation to indefinite cooperation in court.

Cons for the employer:

• the pregnancy of an employee on a temporary contract makes it impossible to dismiss her before childbirth (except in the event of liquidation of the company);
• if the employer did not warn the employee in time about the expiration of the contract, this contract automatically takes on an unlimited character;
• if the contract is incorrectly executed, the dismissal of the employee is illegal, therefore, by a court decision, he is reinstated, which causes great inconvenience, especially if a temporary employee was hired during the absence of the main one.

In addition to direct disadvantages, for the employer, the possibility of hidden problems can be noted.

It is extremely important to correctly draw up a fixed-term employment contract. Missed nuances can lead to the fact that the contract will be considered indefinite:

• it is unacceptable to draw up several fixed-term contracts with one employee in a row if the labor function specified in the contract does not change;
• the text of the contract must indicate the reason for its preparation (Article 57 of the Labor Code of the Russian Federation);
• The end date of the contract must be specified.

The benefits for the employee can be considered that he has entered into a formal employment contract, albeit for a limited period. Under a fixed-term contract, the employee will enjoy the same labor and social rights as under an indefinite one.

The advantage of a fixed-term contract for the employer can be considered that when carrying out temporary work, the company does not need to expand the staff. Upon dismissal of a permanent employee, you will have to pay compensation associated with a reduction in staff, and the employment of an employee in a temporary position will avoid unnecessary costs.

Video: if you signed a fixed-term contract, what awaits you

For how long can a fixed-term employment contract be concluded

A fixed-term employment contract is concluded for no more than five years (Article 58 of the Labor Code of the Russian Federation).

The urgent TD should describe the reason for this type of recruitment.

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

The procedure and rules for registration under a fixed-term employment contract

The procedure and rules for registering an employee for work under a fixed-term employment contract practically do not differ from registration under an open-ended contract.

The initial document for hiring for a temporary job is usually an employee's application addressed to the head of the company or individual entrepreneur. After the employer puts a work visa on the application, the employer's personnel department prepares a draft fixed-term employment contract.

The applicant for the conclusion of an employment contract must prepare a package of documents for the conclusion of the contract.

Necessary documents for concluding a fixed-term employment contract

The following documents are required from the employee:

• passport of a citizen of the Russian Federation or a document replacing it;
• insurance certificate of state pension insurance (SNILS);
• a document on special education, if it is supposed to conclude an agreement for the performance of work requiring a certain qualification;
• document of military registration (for military persons liable for military service);
• a medical book, if it is necessary for the nature of the work (trade, education, public catering, etc.);
• for a minor employee under the age of 16 - the written consent of the parent (guardian).

According to the Labor Code, an employer does not have the right to request a TIN from an employee, as well as registration at the place of residence, but they are often needed to draw up personnel documents and therefore are requested.

The employee's TIN is required to submit personal income tax returns

How to draw up a fixed-term employment contract: structure and content, basic conditions, sample

When applying for a job under a fixed-term contract in the contract, in accordance with Art. 70 of the Labor Code of the Russian Federation, a test period for employment may be established. The test is established by agreement of the parties in order to verify the compliance of the employee with the assigned work. The absence of a test clause in the employment contract means that the employee is hired without a test.

If the employee is actually allowed to work without drawing up an employment contract (part 2 of article 67 of the Labor Code of the Russian Federation), the test condition can only be included in the employment contract by drawing up in the form of a separate agreement before starting work. Wherein:

1. A test for employment is not established if a fixed-term employment contract is concluded for a period of up to two months (Article 289 of the Labor Code of the Russian Federation).
2. When concluding a fixed-term employment contract for a period of two to six months, the probationary period may not exceed two weeks.
3. If a fixed-term contract is drawn up for a period of more than six months, the trial period is set as standard - up to three months.

An example of a form for a fixed-term employment contract is possible. Attention should be paid to filling out clause 2.1.3 of the contract indicating the start and end of work. A sample of filling out a fixed-term employment contract is possible.

Without fail, even before signing the contract, the employee must familiarize himself with the internal labor regulations, his job description, and also confirm his familiarization with his signature in the appropriate journal.

After signing a fixed-term employment contract, the employer's personnel department must perform at least two mandatory operations:

• issue an order for employment under a fixed-term employment contract;
• make an entry in the work book of the hired employee, reflecting the start of work with the employer.

Order on employment and filling out a work book

This has no fundamental differences with the order for admission to a permanent job. The main difference between such an order is that it must contain the date or conditions for the completion of this contract. Order example.

When drawing up a fixed-term employment contract, the work book is filled out according to the general rules.

However, making an entry in the work book about the deadline for completing the contract is a violation of the provisions of the Instructions for filling out work books. If the inspection authorities discover the fact of a record of the deadline for the completion of the employment contract, the employer may be held administratively liable under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation . In addition, the employer will be issued an order to eliminate the violation, failure to comply with which may result in liability in accordance with Art. 19.5 of the Code of Administrative Offenses of the Russian Federation.

Features and procedure for payment under a fixed-term employment contract

An employee with whom a fixed-term employment contract has been concluded enjoys all the rights to pay for the work performed on an equal basis with permanent employees.

All social payments to a temporary worker are also required. But there are some nuances here. So, in order to receive payments for sick leave and vacations, the average salary is calculated not for the last 12 months, but from the calculation of the average salary for the period from the moment of employment to the month preceding the sick leave or vacation.

There are also specifics for temporary workers upon dismissal. In the event of the dismissal of a permanent employee due to staff reduction, he is entitled to compensation, which is not provided for temporary workers.

Upon dismissal, a temporary worker, in addition to payment for work performed, is only entitled to compensation for unused days of the next vacation.

The procedure for terminating a fixed-term employment contract, including at the expiration of the term

The procedure for terminating a fixed-term employment contract is regulated by Art. 79 of the Labor Code of the Russian Federation. The employer warns the employee about the end of a fixed-term employment contract at least three calendar days before the date indicated in the contract as the date of its expiration.

If none of the parties demanded the termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract, the condition on the urgent nature of the employment contract becomes invalid, and the employment contract is considered concluded for an indefinite period.

But there are certain features in the dismissal of an employee under a temporary employment contract:

• an employment contract concluded for the duration of a certain work is terminated upon completion of this work;
• an employment contract concluded for the duration of the performance of the duties of an absent employee is terminated when this employee returns to work;
• an employment contract concluded for the performance of seasonal work is terminated at the end of the period (season) specified in the contract.

Special nuances relate to the conclusion of an employment contract for a certain period in the absence of sufficient grounds for this established by law. In this case, the contract is considered concluded for an indefinite period by a court decision.

If a pregnant woman works under a fixed-term contract, she remains employed at this place until the end of the maternity leave. You cannot be fired before this time. However, there are exceptions here too. If a woman is employed during the absence of an employee, and he returns to his previous position, then the pregnant woman is offered another position. If the employer does not have a vacant position suitable for her qualifications and health characteristics, then the contract is terminated. A pregnant employee working under a fixed-term contract can also be dismissed before the end of the maternity leave if the employer’s activities are completely terminated (the employer is a legal entity or an individual entrepreneur is deregistered as a business entity).

If the term of the contract has expired, the employee is not entitled to insist on further work at this place. The management, in turn, cannot keep the employee, prevent his dismissal. If the agreements expired, the employee notified the employer that he was stopping work, worked the last day and did not come back, this cannot be considered absenteeism. A temporary worker, upon dismissal of his own free will, is not required to work the prescribed number of days.

The dismissal of an employee at the expiration of the employment contract is usually quick and painless

How to convert a fixed-term contract into an open-ended one

In some cases, a fixed-term employment contract may be converted into an indefinite one. This happens if:

• an agreement has been reached between the employer and the employee on the transfer of the employee to a permanent job;
• the employee applies to the court with a claim to recognize the contract as open-ended, and based on the materials submitted, the court makes a positive decision.

If the parties to the contract have agreed that the employee hired under a fixed-term contract will become a permanent employee, it is necessary to conclude an appropriate agreement.

A sample additional agreement between an employer and an employee with a joint decision to transfer a fixed-term employment contract to the status of an open-ended one is possible. After signing it, a temporary worker automatically becomes a permanent one.

After the conclusion of an additional agreement on the transfer of a fixed-term contract to an open-ended contract, the employer must issue an order approving this agreement. An example can be downloaded.

The procedure for retraining a fixed-term employment contract into an open-ended one in a judicial proceeding

In practice, a situation may arise when one of the parties to a fixed-term employment contract, usually the employer, believes that the contract has ended, and the other party believes that this fixed-term contract can be considered indefinite and the employee is considered a permanent employee.

When the parties fail to reach an agreement, the person concerned, usually an employee, goes to court. When applying to the court, an employee can substantiate his claim by one of the following circumstances:

• a fixed-term employment contract was concluded without legal grounds, provided for in Art. 59 of the Labor Code of the Russian Federation;
• the expiration date of the contract (or the amount of work to be performed) is not indicated, i.e. the contract does not contain a reference to the event in connection with which it is terminated, or the date of termination of the employment relationship is not indicated;
• a fixed-term employment contract is concluded for a period of more than five years;
• the employer did not warn the employee about the end of the contract 3 days before its expiration;
• a fixed-term contract is repeatedly concluded for a short period to perform the same labor function.

And another reason to challenge the contract in court are banal violations of the norms of Art. 59 of the Labor Code of the Russian Federation. In accordance with it, a fixed-term contract must necessarily contain the validity of the execution of a fixed-term contract.

A fixed-term employment contract is an important element of Russian labor law. Such an agreement is often convenient for both the employer and the employee. Therefore, all employers need to understand when it is permissible to conclude a fixed-term employment contract, how to draw it up, how to change it, in which cases it is possible to convert such an agreement into an open-ended one.

Almost every organization has employees with fixed-term employment contracts. What are the features of an urgent labor relationship, and what an employee can do to stay at work permanently, will be discussed in this article.

Also, labor relations based on a fixed-term employment contract can be transformed into indefinite ones (for example, if an employee was not warned of dismissal within the prescribed period, he has the right to continue working, moreover, on an indefinite basis). The fact is that in the case when none of the parties demanded the termination of a fixed-term employment contract due to the expiration of its validity period and the employee continues to work after the expiration of the employment contract, the condition on the urgent nature of the employment contract becomes invalid and the employment contract is considered concluded for an indefinite period (part 4 of article 58 of the Russian Federation).

Roman Larionov,
legal adviser of the company "Garant"

By illegally entering into such an agreement, the employer is at great risk. In the article you will find expert tips and a sample for 2019.

From the article you will learn:

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What is a fixed-term employment contract: pros and cons

A fixed-term (temporary) employment contract has a limited duration. The contract is considered as open-ended if it does not say that it is urgent, the reason for the urgency is not indicated and there is no date or event upon the occurrence of which the employment relationship should be terminated (part 3 of article 58 of the Labor Code of the Russian Federation).

A temporary employment contract is beneficial, first of all, to the employer - it expands the list of grounds on which an employee can be fired. All that is needed for dismissal is to wait for the expiration of the period specified in the contract and notify the employee about it three days in advance. How this happens in practice, read the article "". In addition, upon dismissal as part of the liquidation of an enterprise, staff hired for a period of up to two months may not be paid severance pay.

Cons of a fixed term contract

1. Maximum allowablefixed term contractlimited. It is possible to establish an employment relationship for a longer period by concluding a new contract or retraining an existing one into an indefinite one. This is not always convenient.

2. If you miss the deadline and do not issue a dismissal on time, labor relations are transformed into indefinite. From this point on, it is possible to dismiss an employee only on general grounds.

Otherwise, the set of labor and social guarantees provided to the employee by a fixed-term contract does not differ from the standard one. Temporary and seasonal personnel are entitled to paid holidays, sick leave, all allowances and compensations required by law.

When to conclude a fixed-term employment contract

Labor relations are established by default for an indefinite period. But sometimes, due to the special nature of the upcoming work or the conditions for its implementation, a fixed-term employment contract is concluded on a mandatory or voluntary basis. A fixed-term employment contract is concluded under the circumstances listed in Part 1 of Art. 59 of the Labor Code of the Russian Federation. Separately, there are cases when the employer has the right to conclude a fixed-term employment contract by agreement of the parties (part 2 of article 59 of the Labor Code of the Russian Federation).

When is a fixed-term contract required?

• Seasonal or temporary (up to two months) work.
• Work abroad.
• The employee was sent by the employment service for temporary employment.
• Alternative civilian service.
• The employee performs work within the framework of vocational training, work experience, internship.
• The employee is elected to an elective position.
• An employee enters an organization established for a limited period of time or performs work that is outside the normal activities of the employer.
• If an employee temporarily performs the duties of an absent main employee, who retains a place of work for the period of vacation, decree, sick leave, etc.

Table. Cases of concluding a fixed-term employment contract (in general cases and by agreement)

Attention! Additional grounds for concluding a fixed-term contract with certain categories of personnel - professional athletes and coaches - are contained in Art. 348.2 of the Labor Code of the Russian Federation.

When drawing up a temporary employment contract, be sure to indicate the reason for the urgency. First make sure that it is included in the list (Article 59 of the Labor Code of the Russian Federation), otherwise it will be difficult to avoid the instructions and fines of the GIT. Sistema Kadry experts have prepared for you convenient table: Download, keep handy and refer to as needed. Unfortunately, mistakes are made when drawing up every second fixed-term contract.

If the indicated ground of urgency does not meet the legal requirements, the supervisory authorities may decide that the contract was concluded illegally and impose penalties on the employer. In "Personnel System" - full list of fines .

The Alfa company entered into an employment contract for 1 year with the watchman N. and justified the urgency by temporary registration of the employee at the place of residence. During a scheduled inspection, the inspector drew attention to the illegality of such justification. As a result, the employer had to pay a fine under Art. 5.27 of the Code of Administrative Offenses of the Russian Federation in the amount of 30,000 rubles, and employment through the court was recognized as indefinite. Now watchman N. works at Alfa on a full-time basis.

It is important for the employer to have evidence that the employee is going to work on the terms of a fixed-term employment contract based on his own desire. This is necessary in order to confirm the main condition for concluding an urgent contract in the event of possible conflict situations - the voluntary consent of both parties.

Preparation of documents for the conclusion of a fixed-term employment contract

After signing the contract, the employer must issue 3 more documents. We'll tell you how.

Issue job orders. Such an order may have a free form or correspond to Form No. T-1. The order must indicate the date of termination of the employment contract. If such a date cannot be determined, it is necessary to indicate the event upon the occurrence of which the employment contract will be considered terminated.

Enter employment records in the work book. The information in the columns of the document must be consistent with other executed documents, including a fixed-term contract and an employment order. At the same time, an indication of the urgent nature of employment in the work book is not made.

Create a personal employee card. If form No. T-2 is used for this document, an indication of the temporary type of employment is made in the section "Nature of work". In section III "Employment, transfers to another job" repeat the entry made in the work book. The employee must be familiarized with this record against signature.

The maximum term for concluding a fixed-term employment contract

A fixed-term employment contract is concluded for a period of up to five years (part 1 of article 58 of the Labor Code of the Russian Federation). The minimum threshold is not set by law, so it is possible to hire a temporary worker for a couple of months or even weeks, but for five years and one day it is no longer possible.

More about the terms of a fixed-term employment contract:

Attention! As a general rule, a fixed-term employment contract is not extended, but an exception has been made for three categories of workers - athletes, university employees and pregnant women.

A fixed-term employment contract is drawn up as an exception, when labor relations cannot be established on a permanent basis, for a period of up to five years. If the validity period is not specified, the employment will be considered indefinite. If the deadline is set without sufficient grounds, the employer faces a fine and re-qualification of the contract in court.

Labor legislation provides an opportunity to conclude a fixed-term employment contract. Also, the Labor Code discusses in detail all aspects that are associated with a fixed-term contract: from the procedure for hiring an employee to his dismissal. However, no one is immune from the occurrence of disputes that arise from the incorrect execution of the contract or the application of the provisions of the law.

An employment contract is an agreement between an employer and an employee. When concluding it, the employer assumes the obligation to provide the employee with work, which is due to his labor function; to ensure the working conditions provided for by the legislation of Russia, the collective agreement, agreements, local regulations; on payment of wages on time and in the appropriate amount. And the employee, in turn, must independently perform the labor function, which is defined in the contract, as well as comply with the internal labor regulations established in this company.

In accordance with part 1 of Article 58 of the Labor Code, an employment contract may be concluded:

• For undefined period;
• for a specified period, but not more than five years.

A fixed-term employment contract can be called a lifesaver for employers who need, for example, to replace a temporarily absent employee or send people to perform seasonal work, etc.

This contract, in accordance with Article 59 of the Labor Code, may be concluded depending on the nature of the work or the conditions for its implementation, or by agreement of the parties. At the same time, all possible situations in which a fixed-term employment contract can be concluded are enshrined in legislation. Therefore, the employer does not have the right to independently establish the grounds for concluding such an agreement with employees.

In most cases, organizations enter into fixed-term employment contracts:

• with seasonal workers. Seasonal works are works that, due to climatic and other natural conditions, are performed during a certain period (season), which, as a rule, does not exceed six months. At the same time, there are seasonal works that are carried out for more than six months, and their maximum duration is determined by sectoral (intersectoral) agreements concluded at the federal level of social partnership;
• for the period of replacement of an absent employee;
• for temporary work (up to two months);
• with pensioners, etc.

Depending on the type of contract to be concluded, the conditions that must be contained in it are determined.

Terms of a fixed term contract

• Full name of the employee and name of the employer;
• employee's passport details;
• TIN of the employer;
• information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate authority;
• place and date of conclusion of the contract;
• place of work;
• labor function;
• date of commencement of work; - conditions of remuneration;
• working hours and rest time;
• information about the nature of the work;
• condition on compulsory social insurance, etc.

However, the design of a fixed-term contract has some peculiarities.

First, it must also indicate the reasons and grounds for concluding the contract. Secondly, the duration of the agreement is indicated. The expiration can be determined by either a specific date or the occurrence of a specific event (for example, the exit of an absent employee). At the same time, the wording on the term in each case must be prescribed, starting from what specifically determines the moment of termination of the contract.

Special rules

When concluding a fixed-term employment contract, a probationary period can also be set. The exception is works for up to two months. If the term of the contract is from two to six months, then the trial period cannot exceed two weeks. In other cases, it is installed in the usual manner.

If an employee is hired to perform temporary work, then the text of the contract specifies what kind of work must be carried out and the deadline for their completion. For example, the following is stated:

“This employment contract is fixed-term and is concluded for the duration of the landscaping work for the period from June 15, 2012 to July 10, 2012.”.

In this case, it is possible not to indicate the exact date of expiration of the contract, if for some reason it cannot be determined. At the same time, the contract states that it terminates upon completion of certain work, for example:

“The contract is concluded for the implementation of temporary work on compiling a catalog of goods. The employee begins to perform his labor duties on January 15, 2013. This fixed-term employment contract terminates upon completion of the work on compiling the catalog".

Please note that temporary works should last no more than two months.

When concluding a fixed-term employment contract for the duration of the performance of the duties of an absent employee, the agreement terminates when the absent employee returns to work. The following wording may apply here:

“This employment contract is urgent, it is concluded for the time of fulfillment of the duties of the absent accountant V.V. Vasiliev and is valid until his return from a business trip".

If the contract is drawn up for the performance of seasonal work, then it must be stated that it is concluded specifically for the season, since it is difficult to determine the expiration date of the agreement due to the fact that the duration of the season depends on natural and climatic conditions.

Also, when concluding a fixed-term contract by agreement of the parties, it is mandatory to indicate for what reason the parties decided to conclude it.

Order and labor

An employment order is issued in the form No. T-1 or T-1a. When concluding a fixed-term employment contract, it is necessary to fill out both cells “from” and “to”. However, as mentioned above, determining the end of the contract can be difficult, so in the “to” column you can indicate:

• specific date;
• an event that determines the termination of the employment contract.

In this case, this column must be filled in in accordance with the condition specified in the contract. For example, it might say: “until the temporarily absent employee returns from a business trip”.

It is also mandatory to fill in the column “Conditions for employment, nature of work”. This column may contain:

• under a fixed-term contract for the duration of the performance of the duties of an employee on a business trip;
• under an urgent contract for the period of temporary work on compiling a catalog, etc.

It is important

The maximum period for which a fixed-term employment contract can be concluded is five years, and the minimum is not defined in labor legislation. When sending an employee abroad, the term of a fixed-term employment contract cannot exceed three years.

The work book is filled out in accordance with the rules established by the Decree of the Ministry of Labor of Russia dated October 10, 2003 No. 69. After the expiration of the contract, an entry is made in it in accordance with clause 2 of part 1 of article 77 of the Labor Code: “Fired due to the expiration of the employment contract”.

Termination, extension, transformation

Upon expiration of the contract, it must be terminated. The employee must send a notice of termination of the contract. This notice is sent to the employee three days before the date of termination and is drawn up in free form. Most often it says:

• Name of the organization;
• Full name of the employee;
• date and reason for termination of the contract.

At the same time, a fixed-term contract can be terminated before the end of its term (for example, at the employee's own request). In this case, the dismissal procedure must comply with the general rules established by Article 84.1 of the Labor Code. The dismissal order is issued in the unified form No. T-8 or T-8a, established by the Decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1.

Also, after the termination of a fixed-term employment contract, it can be extended. But this action can have negative consequences. Thus, paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” states that the servants of Themis can re-qualify a fixed-term employment contract into an open-ended one on the basis of its repeated renegotiation for a short period of time for doing the same job.

There is also the possibility of transforming a fixed-term contract into an open-ended one. This happens if none of the parties has demanded termination of the fixed-term contract due to its expiration and the employee continues to work. At the same time, in the letter of Rostrud dated November 20, 2006 No. 1904-6-1, a recommendation is made to conclude an additional agreement to the fixed-term contract, which will indicate that it is now concluded for an indefinite period. However, this is not mandatory.

Special Requirements

Labor legislation establishes special requirements for fixed-term employment contracts concluded for up to two months or for a season.

When concluding a contract for the performance of temporary work, it is prohibited to establish a probationary period. If the employee went to work on holidays or weekends, then it is compensated only in cash and not less than double the amount.

Compensation for vacation, if it was not used, is determined at the rate of two working days per month of work. An employee is not paid severance pay, unless otherwise provided by a collective or labor agreement.

If seasonal work is performed, then they are regulated in almost the same way as temporary work. However, the term for warning the parties about the unilateral early termination of the employment contract for the employee is three days, and for the employer - seven days.

I.D. Shilov, lawyer

Temporary work is understood as work, which is known in advance that it will last no more than two months (for example, during the preparation of the annual report). It will be illegal to conclude a fixed-term employment contract for up to two months to perform work that is permanent.

When concluding a fixed-term employment contract, the parties must determine its specific period within two months (a month, a month and a half, etc.). Such wording as "for up to two months" is unacceptable.

The conclusion of a fixed-term employment contract for the performance of seasonal work is allowed provided that these works are provided for in a special list. Lists of seasonal work, including work that can be carried out during a period (season) exceeding six months, and the maximum duration of these individual seasonal works are determined by sectoral (intersectoral) agreements concluded at the federal level of social partnership (part 2 of article 293 TC);

3) with persons sent to work abroad. These can be diplomatic missions and consular offices of the Russian Federation abroad, as well as representative offices of federal executive authorities and state institutions of the Russian Federation, commercial organizations, scientific and educational institutions, etc.;

4) for carrying out work that goes beyond the normal activities of the employer, as well as for carrying out work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided.

In this case, activities that correspond to the main directions of the organization's work, enshrined in its charter, will be normal.

The law, as an example of work that goes beyond the normal activities of the organization, calls the reconstruction, installation, commissioning. Depending on the nature (type) of the ordinary activities of the organization, this may be repair, construction work.

In any case, work that goes beyond 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.

The law does not establish any special deadline for which such an employment contract can be concluded, therefore its term in each case is determined by agreement of the parties based on the specific circumstances and the period of time during which there remains a need to perform work that goes beyond normal activities of the organization. Here, the general rules on the deadline for the employment contract, established by Art. 58 TC, i.e. five years.

As for the employment contract concluded in connection with the need to temporarily expand production or the volume of services provided, its term is limited - it cannot exceed one year. This is due to the fact that work under such an agreement is carried out as part of the normal activities of the organization and the need to expand production or the volume of services provided is limited to certain time frames that are known to the employer.

The specific period of validity of such an employment contract within one year is determined by agreement of the parties. For example, due to the increase in the number of tourists in the summer and the expansion in connection with this volume of services provided, hotels, cafes, restaurants, transport organizations can accept an additional number of employees by concluding employment contracts with them for a certain period (1, 2, 3 months and etc.);

5) with persons entering work in organizations created for a predetermined period of time or to perform a predetermined job.

If an organization is established for a fixed term or only to perform certain work, this should be recorded in its charter. It also defines a specific period of time for which it was created or during which work will be completed, the implementation of which is the goal of creating an organization (for example, for 2, 3, 4 years).

The term of an employment contract with persons entering such organizations is determined by the period for which they were created. Therefore, the termination of the employment contract with the specified employees after the expiration of the period is permissible if this organization really terminates 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 the transfer of rights and obligations by succession to others persons (clause 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 N 2 "On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation" * (17));

6) with persons hired to perform a deliberately defined work in cases where its performance (completion) cannot be determined by a specific date.

The employment contract concluded on this basis must indicate that it is concluded for the time of performing this particular work (for example, for the time of office renovation, for the period of construction of the facility). Completion (completion) of the specified work will serve as the basis for termination of the employment contract due to the expiration of its validity.

At the same time, if during the trial the fact of multiple conclusion of fixed-term employment contracts for a short period of time to perform the same labor function is established, 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 Supreme Court of the Russian Federation dated March 17, 2004 N 2);

7) to perform work directly related to the internship or vocational training of an employee. In this case, the employment contract is concluded for the period of internship or vocational training.

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 a student agreement concluded by the organization with the student himself (see Articles 198-208 of the Labor Code);

8) in case of election for a certain period to an elected body or to an elective position for a paid job. For example, for the position of rector of a state or municipal higher educational institution, dean of a faculty or head of a department of a higher educational institution. According to Art. 12 of the Federal Law of August 22, 1996 N 125-FZ "On Higher and Postgraduate Professional Education" * (18), Art. 332 of the Labor Code, these positions are filled on the basis of elections held in the manner prescribed by the charter of the educational institution (see art. 17, 332 of the Labor Code);

9) upon admission to work related to the direct support of the activities of members of elected bodies or officials in state authorities and local governments, in political parties and other public associations.

So, not all persons entering the work in these elected bodies can be concluded a fixed-term employment contract. We are talking about such work that 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).

In these cases, the term of the employment contract is established by agreement of the parties within the term of office of the relevant elected body or official. Moreover, the early termination of their powers should entail the termination of employment contracts with persons hired to directly ensure their 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.

The conclusion of a fixed-term employment contract is not allowed if the work for which the citizen is sent by the employment service is of a permanent nature;

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" * (19) in accordance with the Constitution of the Russian Federation .

Alternative civilian service is a special type of labor activity in the interests of society and the state, carried out by citizens in return for conscription military service. The procedure for sending citizens to alternative civilian service is determined by the named Federal Law, other federal laws, the Regulations on the procedure for performing alternative civilian service, approved by Decree of the Government of the Russian Federation of May 28, 2004 N 256 * (20), and other regulatory legal acts adopted in accordance with them acts of the Russian Federation. The labor activity of citizens undergoing alternative civilian service is regulated by the Labor Code, taking into account the specifics provided for by this Law.

5) with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works in accordance with the lists of works, professions, positions of these workers, approved by the Government Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations.

6) with heads, deputy heads and chief accountants of organizations. At the same time, it does not matter what the organizational and legal form of these organizations is - a joint-stock company, a limited liability company, a state unitary enterprise, etc.

In accordance with Part 1 of Art. 275 of the Labor Code, the term of the employment contract with the head of the organization is determined by the constituent documents of the organization or by agreement of the parties. Based on this, it should be assumed that by agreement of the parties, the term of the employment contract with the head of the organization is determined if it is not established by the constituent documents of the organization;

7) with persons studying full-time education;

8) with persons entering a part-time job.

Part-time employment is the performance by an employee of another regular paid job on the terms of an employment contract in his spare time from his main job (Article 282 of the Labor Code). The conclusion of employment contracts for part-time work is allowed with an unlimited number of employers, unless otherwise provided by federal law. Part-time work can be performed by an employee both at the place of his main job, and with other employers. It is not allowed to work part-time for persons under the age of 18, in heavy work, work with harmful and (or) dangerous working conditions, if the main work is associated with the same conditions, as well as in other cases provided for by the Labor Code and other federal laws.

The employment contract must indicate that the work is part-time.

4. Except for the cases listed in part 2