Work under a contract for a specified period. Rules for concluding a fixed-term employment contract, its pros and cons for an employee

A fixed-term employment contract is concluded only in those cases that are provided for by law. A fixed-term contract, which is concluded at the request of the employer without sufficient grounds, is considered concluded for an indefinite period.

Employers have the right to issue temporary contracts when the employment relationship cannot be established for an indefinite period. Such contracts are drawn up:

• Only in those cases that are provided by law;
• Given the nature of the work;
• Taking into account the conditions of the work.

There are two types of grounds for formalizing fixed-term contracts: mandatory and by agreement of the parties. In other words, the legislation separates situations when a temporary contract is concluded regardless of the wishes of the parties and when it is drawn up at the personal request of the parties.

The Labor Code contains a closed list of grounds according to which a temporary contract is concluded. If a fixed-term contract is not concluded in accordance with these grounds, it is considered concluded for an indefinite period.

Let's consider each of the types of bases in more detail.

A fixed-term employment contract is mandatory in the following cases:

• For the duration of temporary work, the duration of which is less than two months;
• Citizens were sent to work abroad;
• For the duration of work of a seasonal nature;
• For the duration of the duties of the absent employee;
• Individuals are employed by companies that are set up for a predetermined time to perform a specific job;
• The jobs for which employees are hired are different from the jobs that the organization normally does;
• The work is associated with an increase in production for some time;
• Citizens are sent to undergo civil service;
• Persons are hired, the end of which cannot be determined by a specific date;
• Internship;
• Election for a specific term to an elective office;
• Citizens are sent to work by employment agencies.

By agreement of the parties, the contract is concluded:

• With citizens who get a job with employers who are engaged in small business, the number of their employees is less than thirty-five people (if the organization is engaged in retail trade - no more than twenty people);
• With pensioners;
• With citizens who, because of their health, can only work temporarily;
• With persons who get a job in a company located in the Far North;
• With citizens selected on a competitive basis to fill a position;
• To carry out urgent work to prevent various accidents and disasters, as well as to eliminate the consequences after them;
• With citizens of creative professions;
• With persons holding managerial positions, including chief accountants;
• With full-time students;
• With citizens taking part-time jobs;
• In other cases that are provided by law.

It should be noted that a fixed-term contract is concluded in accordance with the general rules. However, in addition to general provisions, the text of the agreement must contain:

• The reason for concluding a temporary contract, always with reference to the TC;
• The duration of the contract.

Violation of the current legislation by the employer

If during the execution of a temporary contract the employer violated any norms of the law, the employee has the right to defend his rights. For this, he can apply to the court.

If a disputable situation arises, the court recognizes a temporary contract as a contract concluded for an indefinite period, if at its conclusion the employer:

• Didn't specify the term of its validity in the text of the agreement;
• I did not take into account the list of cases in which it is possible to conclude a temporary contract;
• Did not indicate the reason why the contract is concluded for a specific period;
• Did not provide the employee with the stipulated rights and guarantees.

If the dismissal of an employee is made on unlawful grounds, the court will oblige the employer to:

• Restoration of the employee to the previous position;
• Payment of wages to the employee for the period of forced absence;
• Payment of compensation for causing moral damage.

It should be noted that the court can recognize a temporary contract as a contract concluded for an indefinite period not only upon termination of the contract, but also during its validity.

Change of contract term

Employers often wonder if the term of a temporary contract can be changed.

As a general rule, it is prohibited to extend the term of a temporary contract. However, there are exceptions to all the rules. So, in this situation, there are cases in which the employer can (and sometimes even is obliged) to extend the term of the contract. In accordance with these exceptions, the contract can be extended from:

• Employees of higher educational institutions, selected on a competitive basis to fill a previously held position;
• Athletes;
• Expectant mothers (if the woman writes an application for an extension and provides a certificate from a doctor).

The contract can be extended only in these three cases. To extend the term of the contract in other cases, you can amend the text of the contract. This can be done by signing an additional agreement.

Renewing the contract with additional agreements employers should remember that the maximum allowable renewal period is five years. Also, for the extension of the contract, the grounds on which the contract was concluded must be preserved.

For more information about the conditions for extending a fixed-term employment contract, see.

The acceptance of a new employee for work under the labor laws of any country obliges the parties to draw up an employment contract, which will contain a list of points of cooperation. Employment contracts are concluded in writing. By their duration, they can be: temporary, urgent and indefinite. Consider the difference between a fixed-term and an open-ended employment contract.

Types of employment contracts by duration

The conclusion of an employment contract can take place for the following periods:

• terms up to 5 years - a fixed-term employment contract;
• long service life - open-ended contract;
• deadline for a certain type of work;
• seasonal work;
• the period of temporary absence of an employee (maternity leave, long sick leave), for which the position and workplace are retained.

The first two types of labor relations are of interest.

The concept of a fixed-term employment contract and its terms

A fixed-term employment contract is a document that confirms the formalization of labor relations for up to 5 years. Drawing up a contract of this type is necessary if the employee is required for a certain period, after which the work contract will be terminated and the employee is dismissed. The difference between a fixed-term and an open-ended employment contract is determined by the fact that in the second case, the service life is not defined and the person works on a permanent basis.

Download a sample fixed-term contract

Note! According to the provisions of a fixed-term employment contract, a temporary employee has rights and obligations that are equal to the main one: guaranteed labor rights, decent pay, workload norms, provision of a job, inventory, overalls, paid leave, compliance with the rules and regulations of the organization.

The contingent of employees with whom a fixed-term contract is concluded

Potential employees or job seekers who may enter into such an agreement with an employer:

• people to perform work for a certain time period;
• persons who are sent to another country on service requirements;
• staff for staff training;
• trainees, acceptance for training and internship;
• people who are sent by special services to carry out social activities;
• military sent to civilian service in another region within the country.

Working conditions under a fixed-term employment agreement

The difference between a fixed-term employment contract and an unlimited one is that the conclusion of fixed-term contracts is carried out within the framework of the current legislation, specifying specific terms and time frames.

on basic conditions:

• provision of a workplace;
• definition of functional responsibilities;
• dates of departure to the place of work (service);
• distribution of workload;
• working conditions;
• decent pay;
• conclusion of contracts for insured events.

Rules for drawing up an open-ended employment contract

The main difference between an open-ended and a fixed-term employment contract is that the first does not have a validity period and is drawn up between the parties for an indefinite labor relationship with a constant volume of work.

Important! Termination of a document can be at the initiative of the employer (under the article, if there are grounds) or the employee.

Distinctive characteristics of employment contracts

We have given the main provisions of the most popular labor relations, now we will consider how a fixed-term employment contract differs from an unlimited one:

1. Time frames for fulfilling the terms of the contract:

• fixed-term contract is limited in time;
• the documents must indicate the reason on the basis of which the validity period is concluded;
• an open-ended contract provides for constant cooperation for a long time;
• an open-ended contract obliges the employer to accept an employee or an applicant on a permanent basis and for a long period, not limited in time.

1. It is not possible to reissue an unlimited contract into a fixed-term contract, even if the parties agree.
2. Re-registration of a fixed-term contract for an unlimited form occurs provided that:

• the employee continues to work at the enterprise;
• the urgency of the terms of the contract loses its legal basis.

1. Differences between additional clauses and conditions:

• the urgent type of contract provides for an indication of the reason for accepting an employee for a limited period of time.

1. Feasibility of concluding contracts:

• urgent form - ensures the implementation of a clearly set production task;
• termless form - ensures the implementation of permanent labor relations.

Denis Mitrofanov talks about which contract, urgent or indefinite, to sign

Example: you are the owner of a strawberry farm. You have 15 hectares of land on which you need to set up beds, fertilize, plant strawberries, take care of them every day in order to end up with a good harvest. One, of course, cannot cope, we need helpers. Hundreds of people are rushing to you in a crowd who want to help for a purely symbolic and modest monetary reward.

You are happy to accept offers, but the question arises: how to properly formalize short-term industrial relations with people? After all, you will need their services only for the summer period, and what if one of them does not want to quit in the fall, saying bluntly: no, give me a salary now all the time!

Link to the basis of the conclusion

When drawing up a fixed-term employment contract, it is imperative to indicate for what reason the contract of limited duration is concluded.

If there are no grounds for its conclusion in the text of the document, then by the court it can be recognized as indefinite ( art. 58 of the Labor Code of the Russian Federation).

It is also necessary to indicate the end date or designate an event that means the end of work ( art. 294 of the Labor Code of the Russian Federation).

This is especially important in a situation when an employee is hired to replace a temporarily absent one. In this case, the moment of termination of the contract is determined by the moment the main employee leaves, and this must be directly indicated in the text.

Test for a fixed-term employment contract

A sample of a short-term employment contract with an employee may also contain a test condition, the duration of which depends on the term of the employment contract. If the period is less than two months, the trial period is not set ( art. 70 of the Labor Code of the Russian Federation).

If the duration of the temporary contract is between two and six months, the trial cannot exceed two weeks ( art. 70 of the Labor Code of the Russian Federation).

If an employment contract is concluded for 6 months or more, then the duration of the test, as with the conclusion of an open-ended contract, is limited to 3 months, and for executives - 6.

Paperwork

The procedure for documentary support of the employee's activities as a whole does not depend on the term of the contract concluded with him. But there is still one feature.

When such an employee is hired, an order is drawn up in the form of T1 or another, independently developed and approved by the employer, which necessarily reflects that the contract is concluded for a specific period, and a link is given to the basis of such a decision (one of the paragraphs art. 59 of the Labor Code of the Russian Federation).

Upon dismissal, an entry is made in the employee's work book of the form:

“... terminated due to the expiration of the employment contract, paragraph 2 of part one article 77 of the Labor Code of the Russian Federation».

A similar mark is made in the employee's personal card.

Fixed-term employment contract and pregnancy

Yes, it also happens ... In this case, the employer, in accordance with article 261 of the Labor Code of the Russian Federation, you will have to demand (but very gently!) from the employee an appropriate medical certificate confirming her interesting condition, and extend the temporary agreement until the end of the pregnancy, that is, in fact, before delivery. When she gives birth to a baby, you can say goodbye to her, but until that moment you can't.

Variants are also possible. If, instead of a certificate of pregnancy, a girl brings a statutory form of a sheet of temporary incapacity for work, where pregnancy is indicated in the justification for its issuance, as well as a statement of the desire to go on paid leave (it does not matter at all how much she worked for you, at least a week), the employer will have to prepare and sign the corresponding order. Because, in accordance with Article 260 of the Labor Code of the Russian Federation, before maternity leave (or after it), the employer is obliged to provide the woman with an annual paid leave, regardless of the time she worked for him.

Therefore, it turns out that instead of three summer months, some legally literate girls can hold out on temporary work longer.

Difficulties also arise in a situation when an employee is on sick leave at the end of the contract. It is well known that termination of an agreement with a sick employee at the initiative of the employer is not allowed. But the expiration of the term is not an initiative of the management, so it is quite legitimate to dismiss such an employee, the main thing is to follow the procedure.

Prolongation of a fixed-term employment contract

As such, the procedure for extending the STD is not described, which invariably raises questions about the possibility of increasing (or reducing) its duration.

On the one hand, such a contract either terminates on a predetermined day of its expiration, or becomes indefinite if the employee continues to work.

On the other hand, the law does not prohibit the employee and the employer, as parties to labor relations, to conclude additional agreements if it is necessary to change the terms of the contract, including with respect to its term.

Temporary employee dismissal rules

In accordance with Article 79 of the Labor Code of the Russian Federation, a fixed-term contract ends with the expiration of its validity period, this is an independent basis for terminating working relations.

The main steps to dismiss a temporary worker are as follows:

If they want to transfer an employee to a permanent job in the organization, then nothing needs to be done. STD automatically becomes indefinite if the employment relationship continues after the date of its termination in force art. 58 of the Labor Code of the Russian Federation... But it is not forbidden (and even recommended by Rostrud) to conclude an additional agreement in which to cancel the points indicating the duration of the STD.

Temporary work is understood as work that 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 term within two months (a month, a month and a half, etc.). A wording such 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 by a special list. Lists of seasonal works, including works 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 Art.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 representations of federal executive bodies and state institutions of the Russian Federation, commercial organizations, scientific and educational institutions, etc.;

4) to carry out work that goes beyond the usual activities of the employer, as well as to carry out work associated with a deliberately temporary (up to one year) expansion of production or the volume of services provided.

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

The law cites reconstruction, installation and commissioning as an example of work outside the normal scope of the organization. Depending on the nature (type) of the organization's usual activities, this can 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 is a need to perform work that goes beyond the 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 labor 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 a contract is carried out in the normal course of the organization and the need to expand production or the volume of services provided is limited to a certain time frame that the employer knows.

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

5) with persons applying for work in organizations created for a known period of time or for the performance of a known job.

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

The term of the employment contract with persons entering such organizations is determined by the period for which they are created. Therefore, the termination of an employment contract with these employees after the expiration of the term is permissible if this organization really ceases its activities due to the expiration of the period for which it was created, or the achievement of the purpose for which it was created, without transferring rights and obligations in the order of 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 accepted for the performance of knowingly certain 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 was concluded for the duration of this particular work (for example, for the period of office renovation, for the period of construction of the facility). The end (completion) of the specified work will serve as the basis for termination of the employment contract due to the expiration of its validity period.

At the same time, if in the course of 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 of March 17, 2004 N 2);

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

An internship or vocational training of employees in an organization can be carried out both on the basis of an agreement with another organization that sent its employee for an internship or vocational training, and on the basis of an apprenticeship agreement concluded by the organization with the student himself (see Art. 198-208 TC);

8) in the case of being elected for a specified term to an elected body or to an elective position for a paid job. For example, for the post 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 accordance with the procedure established by the charter of the educational institution (see Articles 17, 332 of the Labor Code);

9) when applying for a job related to the direct support of the activities of members of elected bodies or officials in government bodies and local self-government bodies, in political parties and other public associations.

So, not all persons applying for work in these elected bodies can be concluded with 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 support 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 job seekers. 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 directed by the employment agency 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 Federal Law No. 113-FZ of July 25, 2002 "On Alternative Civilian 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 instead of conscript military service. The procedure for sending citizens to alternative civilian service is determined by the named Federal Law, other federal laws, the Regulation on the procedure for passing the alternative civilian service, approved by the Government of the Russian Federation of May 28, 2004 N 256 * (20), and other regulatory legal 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 the specified Law.

5) with creative workers of the media, cinematographic organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibiting) of works in accordance with the lists of works, professions, positions of these workers approved by the Government RF 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. It does not matter what the organizational and legal form of these organizations is - joint stock company, limited liability company, 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 in the event that it is not established by the constituent documents of the organization;

7) with persons studying full-time education;

8) with persons applying for a part-time job.

Part-time employment is the performance by an employee of other regular paid work on the terms of an employment contract in his free time from his main job (Article 282 of the Labor Code). The conclusion of labor 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 at other employers. It is not allowed to work concurrently 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.

It is necessary to indicate in the employment contract that the work is part-time.

4. Except for the cases listed in part 2

Hello! Today we will talk about hiring under a fixed-term employment contract. The features of such an agreement are detailed in the Labor Code, but despite this, when hiring new employees for a period, the company often makes mistakes. In order to avoid legal disputes and fines, the employer should understand all issues in detail.

What is a fixed-term employment contract

Fixed-term employment contract - a common type of agreement between an employer and an employee, when, for certain reasons, these relations have an agreed termination date, as opposed to the usual one.

• Download the form, a sample of a fixed-term employment contract
• Download Sample order for employment under a fixed-term employment contract

Fixed-term and unlimited contracts - what is the difference

For ease of comparison, we present the data in the form of a table:

However, the employer is not always free to choose which type of contract to offer to the applicant, since in some points the law requires the conclusion of a STD, and in some it makes such a step on the part of the employer possible, but not mandatory.

In what cases is it obligatory to issue an employee according to STD

There are types of work, the nature and conditions of which involve the conclusion of an employment contract for a limited period. Most often this is due to natural or seasonal characteristics, as well as the inability to know the end date of the activity.

Let's list the main cases:

• During the absence of a permanent employee (for example, due to maternity leave);
• When sending an employee to work abroad;
• When an athlete is temporarily transferred to another employer;
• If the employing organization itself is created temporarily to solve a specific problem;
• For activities that are not typical for the organization;
• For seasonal work;
• For temporary work (up to two months);
• For work in connection with professional activity / internship;
• For persons sent to public works;
• If the employee is a vice-rector of a higher educational institution;
• If citizens are doing alternative civilian service;
• When elected for a fixed term as a member of an elected body.

In what cases it is possible to issue an employee under the STD, but not necessarily

The optional STD is called "by agreement of the parties."

The employer can conclude it with persons in the following circumstances:

• Small businesses with no more than thirty-five employees;
• An employee of retirement age, and also if, on the prescription of a doctor, he can only be in temporary work;
• Work in the Far North and is associated with moving there;
• To eliminate the consequences of catastrophes, epidemics, accidents, as well as prevent these events;
• People of creative professions (cinematographers, media journalists, theater and circus artists);
• Full-time employee at an educational institution;
• Crew members of sea and river vessels;
• Managers, their deputies and chief accountants of enterprises, regardless of the form of ownership and activities of the company;
• Part-timers;
• Deputy positions of scientific and pedagogical staff in a higher educational institution;
• Persons invited to a coaching position to prepare wards for the competition.

In all other cases (their overwhelming majority), the law prescribes the hiring of workers only under an open-ended employment contract.

How to properly apply for a job on STD

So, if the employer is convinced that the case with his future employee falls under one of the above points, the question arises of competent employment, including the correct filling of all documents. In general, employment under the STD does not differ from the traditional one, but it has several features.

In both cases, for employment, the employee must bring the following documents to the personnel department:

• Passport or other identity document;
• Labor book (if the job is the first, the employer, according to the law, has no right to ask the employee to bring an empty book, since it is a document of strict accountability. It must be kept by the employer himself);
• Insurance certificate of state pension insurance (SNILS);
• Military registration documents - for persons liable for military service;
• Certificate of education or qualifications;
• Police clearance certificate.

Strictly according to the Labor Code, the employer does not have the right to ask the employee INNas well as registration at the place of residence, but they are often needed and therefore requested. As for medical books, their need is determined by the nature of the employee's activity (trade, education, catering and others).

After the employee has submitted the documents, the next multi-stage stage begins - its registration by the organization's personnel department. At this stage, there are a number of nuances inherent in STD.
Let's consider them in the table:

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

The employment contract, order and work book are recorded in the corresponding journals by an employee of the personnel department.

What probationary period can be set at STD

As you know, with a regular employment contract, the probationary period cannot exceed three months (or six months in the case of the position of a manager or chief accountant). However, with STD, the conditions are somewhat different, given the possible short duration of work.

• Unless otherwise stated, the probationary period remains the standard - up to three months;
• If TD is drawn up for a period of two to six months, then the duration of the test cannot exceed two weeks;
• If the contract is concluded for a period of less than two months, then the test is not carried out.

So, we have sorted out the key issues on a fixed-term employment contract. Let's hope that the information received will allow employers to better navigate this difficult issue and even more confidently lead their enterprise to success.