Part two of article 57 of the Labor Code of the Russian Federation. Theory of everything. Additional terms of the employment contract

05.04.2021

The employment contract specifies:

surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual) who entered into an employment contract;

information about the documents proving the identity of the employee and the employer - an individual;

taxpayer identification number (for employers, except for employers - individuals who are not individual entrepreneurs);

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 employment contract.

The following conditions are mandatory for inclusion in an employment contract:

place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another locality, the place of work indicating the separate structural unit and its location;

labor function (work according to the position in accordance with staffing, professions, specialties indicating qualifications; specific type of work assigned to the employee). If in accordance with this Code, other federal laws, the provision of compensations and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the name of these positions, professions or specialties and qualification requirements they must comply with the names and requirements specified in the qualification reference books approved in the manner established by the Government Russian Federation, or the relevant provisions of professional standards;

the date of commencement of work, and in the case when a fixed-term employment contract is concluded, also the term of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with this Code or other federal law;

terms of remuneration (including the amount tariff rate or salary ( official salary) employee, additional payments, allowances and incentive payments);

working time and rest time (if for this employee it differs from the general rules in force for this employer);

guarantees and compensations for work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, indicating the characteristics of working conditions at the workplace;

conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work);

working conditions in the workplace;

a condition on compulsory social insurance of an employee in accordance with this Code and other federal laws;

other conditions in cases provided for by labor legislation and other regulatory legal acts containing norms labor law.

If, when concluding an employment contract, it did not include any information and (or) conditions from among those provided for in parts one and two of this article, then this is not a basis for recognizing the employment contract as not concluded or terminating it. The employment contract must be supplemented with missing information and (or) conditions. In this case, the missing information is entered directly into the text of the employment contract, and the missing conditions are determined by the appendix to the employment contract or by a separate agreement of the parties, concluded in writing, which are an integral part of the employment contract.

on the specification of the place of work (indicating the structural unit and its location) and (or) on the workplace;

about the test;

on non-disclosure of legally protected secrets (state, official, commercial and other);

on the obligation of the employee to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer;

on the types and conditions of additional employee insurance;

on improving the social and living conditions of the employee and members of his family;

on clarifying, in relation to the working conditions of this employee, the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms;

on additional non-state pension provision for an employee.

By agreement of the parties, the employment contract may also include the employer established by labor legislation and other regulatory legal acts containing labor law norms, local regulations, as well as the rights and obligations of the employee and the employer arising from the conditions collective agreement, agreements. The failure to include in the employment contract any of the specified rights and (or) obligations of the employee and the employer cannot be considered as a refusal to exercise these rights or fulfill these obligations.

Commentary on Art. 57 of the Labor Code of the Russian Federation

2. Although in relation to some conditions of the Labor Code it does not use the term “mandatory”, the employment contract must contain information about the employee and employer necessary for their identification (full name of the employee and data about the employer), place and date conclusion of an employment contract.

3. Mandatory for inclusion in the employment contract are such conditions as: place of work (indicating a specific workshop, department, site) or location of a separate (branch, representative office) structural unit; labor function (work according to the position in accordance with the staff list, profession, specialty, indicating qualifications, the specific type of work assigned to the employee); terms of remuneration; the mode of working time and rest time (if for this employee it differs from the general rules in force for this employer); start date and due date, etc.

4. Mandatory conditions must be agreed upon by the parties, since without them there can be no employment contract.

5. Additional terms of the employment contract: for example, on a test when applying for a job; on non-disclosure of legally protected secrets (state, official, commercial and other); on the obligation of the employee to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer; on improving the social and living conditions of the employee and members of his family, etc. - may relate to any labor issues.

6. If the parties to the employment contract have agreed on these conditions, then they must be observed.

The main thing is that these conditions do not worsen the position of the employee in comparison with the established labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations.

7. By agreement of the parties, the employment contract may also include the rights and obligations of the employee and the employer, as established by labor legislation and other acts containing labor law norms, local regulations (for example, conditions on the transfer procedure, disciplinary and liability, dismissal, labor protection, the procedure for resolving labor disputes, etc.), and arising from the terms of the collective agreement, agreement.

By virtue of the conclusion of an employment contract, these conditions are binding on the parties and apply to them regardless of whether the parties agreed on this and whether they were included in the employment contract.

Second commentary on Article 57 of the Labor Code

1) derivatives established by law. The parties do not agree on derivative conditions, since from the moment the contract is concluded, these conditions are already binding by law and the contract;

2) immediate conditions (essential) - these are the conditions that are determined by agreement of the parties. The conditions stipulated by the parties themselves, in turn, are divided into necessary and additional (optional). Labor legislation does not bind the will of the parties to the contract in the development of these conditions.

The following conditions of the employment contract are necessary:

a) about the place of work, and in the case when the employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another locality, the place of work indicating the separate unit and its location;

b) about the labor function that the employee will perform, i.e. specialties, positions, qualifications, combination of professions; the type of work assigned to the employee;

c) on wages;

d) when concluding a fixed-term employment contract - on the period of its validity;

e) conditions that determine, if necessary, the nature of the work (related to traveling, work on the road, etc.);

f) a condition on compulsory social insurance of an employee, etc.

The labor function is important in the employment contract along with the place of work. The labor function clearly outlines the circle of immediate job duties that the employee must fulfill during the existence employment relationship.

Therefore, in Part 2 of Art. 57 of the Labor Code of the Russian Federation lists the conditions that are a necessary part of any employment contract. In this article, they are referred to as mandatory terms of the employment contract.

3. When concluding an employment contract, the employee agrees with the employer on the nature of the specific work that he will perform. The text of the contract indicates the name of the profession or position, as well as the specialty and qualifications. Together they characterize the labor function of the employee, which is determined by the parties to the employment contract themselves.

In our country, the All-Russian classifier of professions of workers, positions of employees and tariff categories. It was approved by the Decree of the State Standard of Russia of December 26, 1994 N 367.

The labor function of an employee is determined by the name of his position in the staff list and specified in the relevant job description. On August 21, 1998, the Qualification Directory for the positions of managers, specialists and employees was approved by the Decree of the Ministry of Labor and Social Development (see Bulletin of the Ministry of Labor of Russia. 1998. N 12). It is applied in all organizations, regardless of their forms of ownership and organizational and legal forms.

4. It should be borne in mind that if, when concluding an employment contract, it did not include any information or conditions from those provided for in parts 1 and 2 of Art. 57 of the Labor Code of the Russian Federation, this cannot be a basis for recognizing an employment contract as not concluded or terminating it. In this case, the employment contract must be supplemented with missing information or conditions.

As for the missing information, they are included in the text of the employment contract, and the missing conditions are determined by the appendix to the employment contract or by a separate agreement of the parties in writing. They are an integral part of the employment contract.

5. The parties to the employment contract, in addition to the necessary ones, may establish additional conditions. They are provided for in Part 4 of Art. 57. Additional conditions include, for example, the conditions for granting out of turn a place in a preschool institution, for the allocation land plot, about establishing probationary period when applying for a job, additional holidays in excess of those stipulated by law and the collective agreement, etc. If the parties include additional conditions in the content of a particular agreement, then they automatically become mandatory for their implementation.

6. It must be remembered that the terms of an employment contract cannot reduce the level of rights and guarantees of employees established by labor legislation (see to it). And if such conditions are included in the employment contract, then they cannot be applied, since they are invalid.

7. The employment contract may contain conditions for non-disclosure by the employee of information constituting official or trade secret which became known to the employee in connection with the performance of his official duties.

The legal basis for the inclusion in an employment contract of conditions on non-disclosure of commercial or official secrets by an employee can be both federal laws and other regulatory legal acts, but only at the federal level. For example, the Decree of the Government of the Russian Federation of June 19, 1994 (SZ RF. 1994. N 9. Art. 1007) as amended. dated April 16, 2001, the Regulations on State Veterinary Supervision in the Russian Federation were approved, in paragraph 15 of which it is stated that officials of the State Veterinary Service of the Russian Federation, exercising veterinary control, are obliged not to disclose commercial secrets and other information that became known to them in the course of such supervision.

10. Other conditions may be included in the employment contract if it is provided for by the agreement, the collective agreement or by agreement of the parties.

11. The current labor legislation of the Russian Federation allows a citizen to conclude, in addition to his main employment contract, a second one - for combined work. Such work is called part-time work (cf.

Do you think you are Russian? Born in the USSR and think that you are Russian, Ukrainian, Belarusian? No. This is not true.

You are actually Russian, Ukrainian or Belarusian. But you think you are a Jew.

Game? Wrong word. The correct word is "imprinting".

A newborn associates himself with those facial features that he observes immediately after birth. This natural mechanism is characteristic of most living beings with vision.

Newborns in the USSR for the first few days saw their mother for a minimum of feeding time, and most of the time they saw the faces of the maternity hospital staff. By a strange coincidence, they were (and still are) mostly Jewish. Reception is wild in its essence and effectiveness.

All your childhood you wondered why you live surrounded by non-native people. Rare Jews on your path could do anything with you, because you were drawn to them, while others were repelled. Yes, even now they can.

You cannot fix this - imprinting is one-time and for life. It is difficult to understand, the instinct took shape when you were still very far from being able to formulate. From that moment, no words or details have been preserved. Only facial features remained in the depths of memory. Those traits that you consider your family.

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System and Observer

Let us define a system as an object whose existence is not in doubt.

An observer of a system is an object that is not a part of the system it observes, that is, it determines its existence, including through factors independent of the system.

From the point of view of the system, the observer is a source of chaos - both control actions and the consequences of observational measurements that do not have a causal relationship with the system.

An internal observer is a potentially achievable object for the system in relation to which the inversion of the observation and control channels is possible.

An external observer is even an object potentially unattainable for the system, located beyond the event horizon of the system (spatial and temporal).

Hypothesis #1. All-seeing eye

Let's assume that our universe is a system and it has an external observer. Then observational measurements can take place, for example, with the help of "gravitational radiation" penetrating the universe from all sides from the outside. The capture cross section of "gravitational radiation" is proportional to the mass of the object, and the projection of the "shadow" from this capture onto another object is perceived as an attractive force. It will be proportional to the product of the masses of objects and inversely proportional to the distance between them, which determines the density of the "shadow".

The capture of "gravitational radiation" by an object increases its randomness and is perceived by us as a passage of time. An object that is opaque to "gravitational radiation", the capture cross section of which is larger than the geometric size, looks like a black hole inside the universe.

Hypothesis #2. Internal Observer

It is possible that our universe is watching itself. For example, using pairs of quantum entangled particles spaced apart in space as standards. Then the space between them is saturated with the probability of the existence of the process that generated these particles, which reaches its maximum density at the intersection of the trajectories of these particles. The existence of these particles also means the absence of a sufficiently large capture cross section on the trajectories of objects capable of absorbing these particles. The remaining assumptions remain the same as for the first hypothesis, except:

Time flow

External observation of an object approaching the event horizon of a black hole, if the determining factor of time in the universe is an "outside observer", will slow down exactly twice - the shadow from the black hole will block exactly half of the possible trajectories of "gravitational radiation". If the determining factor is the “internal observer”, then the shadow will block the entire trajectory of interaction and the flow of time for an object falling into a black hole will completely stop for a view from the outside.

Also, the possibility of combining these hypotheses in one proportion or another is not excluded.

Section III. LABOR CONTRACT

Chapter 10. GENERAL PROVISIONS

Article 56. The concept of an employment contract. Parties to the employment contract

Employment contract - an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work according to the stipulated labor function, to ensure working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and by this agreement, to pay the employee wages in a timely manner and in full, and the employee undertakes to personally perform the labor function determined by this agreement, to comply with the internal labor regulations applicable to this employer. (part one as amended by Federal Law No. 90-FZ of 30.06.2006)

The parties to an employment contract are the employer and the employee.

Article 57. Content of an employment contract

The employment contract specifies:

last name, first name, patronymic of the employee and the name of the employer (last name, first name, patronymic of the employer - an individual) who entered into an employment contract;

information about the documents proving the identity of the employee and the employer - an individual;

taxpayer identification number (for employers, except for employers - individuals who are not individual entrepreneurs);

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 employment contract.

The following conditions are mandatory for inclusion in an employment contract:

labor function (work according to the position in accordance with the staff list, profession, specialty, indicating qualifications; a specific type of work assigned to the employee). If in accordance with this Code, other federal laws, the provision of compensations and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the names of these positions, professions or specialties and qualification requirements for them must correspond to the names and requirements specified in qualification reference books approved in the manner established by the Government of the Russian Federation, or the relevant provisions of professional standards; (as amended by Federal Laws No. 13-FZ of February 28, 2008, No. 236-FZ of December 3, 2012)

terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);

the mode of working time and rest time (if for this employee it differs from the general rules in force for this employer);

conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work);

working conditions in the workplace; (paragraph introduced by Federal Law No. 421-FZ of December 28, 2013)

a condition on compulsory social insurance of an employee in accordance with this Code and other federal laws;

other conditions in cases provided for by labor legislation and other regulatory legal acts containing labor law norms.

on the specification of the place of work (indicating the structural unit and its location) and (or) on the workplace;

about the test;

on non-disclosure of legally protected secrets (state, official, commercial and other);

on the obligation of the employee to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer;

on the types and conditions of additional employee insurance;

on improving the social and living conditions of the employee and members of his family;

on additional non-state pension provision for an employee. (paragraph introduced by Federal Law No. 421-FZ of December 28, 2013)

By agreement of the parties, the employment contract may also include the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms, local regulations, as well as the rights and obligations of the employee and the employer arising from the terms of the collective agreement, agreements . Failure to include in the employment contract any of the specified rights and (or) obligations of the employee and the employer cannot be considered as a refusal to exercise these rights or fulfill these obligations.

Article 58. Term of an employment contract

Employment contracts may be concluded:

1) for an indefinite period;

2) for a fixed period of not more than five years (fixed-term employment contract), unless another period is established by this Code and other federal laws.

A fixed-term employment contract is concluded when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its performance, namely in the cases provided for by paragraph one of Article 59 of this Code. In the cases provided for by the second part of Article 59 of this Code, 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 performance. (Part two as amended by Federal Law No. 90-FZ of June 30, 2006)

If the employment contract does not specify the term of its validity, then the contract is considered concluded for an indefinite period.

In the event that 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. (Part four as amended by Federal Law No. 90-FZ of June 30, 2006)

An employment contract concluded for a fixed period in the absence of sufficient grounds established by the court is considered to be concluded for an indefinite period. (As amended by Federal Law No. 90-FZ dated June 30, 2006)

It is prohibited to conclude fixed-term employment contracts in order to avoid granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period. (As amended by Federal Law No. 90-FZ dated June 30, 2006)

Article 59. Fixed-term employment contract

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

A fixed-term employment contract is:

for the duration of the performance of the duties of an absent employee, for whom, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, the place of work is retained;

for the duration of temporary (up to two months) works;

to perform seasonal work, when, due to natural conditions, work can only be done during a certain period (season);

with persons sent to work abroad;

for work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work associated with a deliberately temporary (up to one year) expansion of production or the volume of services provided;

with persons entering work in organizations created for a known period or to perform a known work;

with persons hired to perform a known work in cases where its completion cannot be determined by a specific date;

to perform work directly related to practice, vocational training or additional professional education in the form of an internship; (As amended by Federal Law No. 185-FZ of July 2, 2013)

in cases of election for a certain period to an elected body or to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies or officials in public authorities and local governments, in political parties and other public associations;

with persons sent by the bodies of the employment service to work of a temporary nature and public works;

with citizens sent for alternative civilian service;

By agreement of the parties, a fixed-term employment contract may be concluded:

with persons coming to work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people);

with pensioners entering work by age, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;

with persons entering work in organizations located in the regions of the Far North and areas equivalent to them, if this is associated with moving to the place of work;

to carry out urgent work to prevent catastrophes, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;

with persons elected by competition to fill the relevant position, held in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms;

with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers approved by the Government of the Russian Federation Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations; (as amended by Federal Law No. 13-FZ of February 28, 2008)

with heads, deputy heads and chief accountants of organizations, regardless of their organizational and legal forms and forms of ownership;

with persons receiving full-time education; (As amended by Federal Law No. 185-FZ of July 2, 2013)

with crew members of seagoing vessels, inland navigation vessels and mixed (river - sea) navigation vessels registered in the Russian International Register of Vessels; (paragraph introduced by Federal Law No. 305-FZ of November 7, 2011)

with persons entering a part-time job;

in other cases provided for by this Code or other federal laws.

Article 60

It is prohibited to require an employee to perform work not stipulated by an employment contract, except as provided for by this Code and other federal laws.

Article 60.1. Part-time work

The employee has the right to conclude employment contracts on the performance of other regular paid work with the same employer (internal part-time job) and (or) with another employer (external part-time job) in his spare time from his main job.

Features of labor regulation of persons working part-time are determined by Chapter 44 of this Code.

Article 60.2. Combination of professions (positions). Expansion of service areas, increase in the volume of work. Fulfillment of the duties of a temporarily absent employee without release from work specified in the employment contract

(Introduced by Federal Law No. 90-FZ of June 30, 2006)

With the written consent of the employee, he may be entrusted with the performance during the established duration of the working day (shift), along with the work specified in the employment contract, additional work in another or the same profession (position) for additional payment (of this Code).

Additional work assigned to an employee in another profession (position) may be carried out by combining professions (positions). Additional work assigned to an employee in the same profession (position) can be carried out by expanding service areas, increasing the volume of work. In order to perform the duties of a temporarily absent employee without being released from work specified in the employment contract, the employee may be entrusted with additional work both in another profession and in the same profession (position).

The period during which the employee will perform additional work, its content and volume are established by the employer with the written consent of the employee.

The employee has the right to prematurely refuse to perform additional work, and the employer - to cancel the order to perform it ahead of schedule, notifying the other party in writing no later than three working days in advance.

Article 61. Entry into force of an employment contract

An employment contract shall enter into force from the day it is signed by the employee and the employer, unless otherwise provided by this Code, other federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his employer. authorized representative. (as amended by Federal Laws No. 90-FZ of 30.06.2006, No. 421-FZ of 28.12.2013)

The employee is obliged to start performing labor duties from the day specified in the employment contract.

If the employment contract does not specify the day of commencement of work, the employee must start work on the next working day after the entry into force of the contract. (As amended by Federal Law No. 90-FZ dated June 30, 2006)

If the employee did not start work on the day of commencement of work, established in accordance with the second or third part of this article, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded. Cancellation of an employment contract does not deprive the employee of the right to receive mandatory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation. (Part four as amended by Federal Law No. 90-FZ of June 30, 2006)

Article 62. Issuance of copies of documents related to work

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

Upon a written application of the employee, the employer is obliged, no later than three working days from the date of submission of this application, to issue to the employee copies of documents related to work (copies of the order for employment, orders for transfers to another job, order for dismissal from work; extracts from the work book; certificates on wages, on accrued and actually paid insurance premiums for compulsory pension insurance, on the period of work with this employer, etc.). Copies of documents related to work must be duly certified and provided to the employee free of charge. (As amended by Federal Law No. 90-FZ dated June 30, 2006)

Parts two and three are no longer valid. - Federal Law of June 30, 2006 N 90-FZ.

Chapter 11. CONCLUSION OF AN EMPLOYMENT CONTRACT

Article 63. Age from which the conclusion of an employment contract is allowed

The conclusion of an employment contract is allowed with persons who have reached the age of sixteen, with the exception of cases provided for by the legislation on the legal status of foreign citizens in the Russian Federation. (As amended by Federal Law No. 204-FZ of July 23, 2013)

Persons who received general education or who are receiving a general education and have reached the age of fifteen, may enter into an employment contract for the performance of light work that is not harmful to their health. (Part two as amended by Federal Law No. 185-FZ of July 2, 2013)

With the consent of one of the parents (trustee) and the body of guardianship and guardianship, an employment contract may be concluded with a person who is receiving general education and has reached the age of fourteen years, to perform light work in his free time from education, not causing harm to his health and without prejudice to development of the educational program. (as amended by Federal Laws No. 90-FZ of 30.06.2006, No. 185-FZ of 02.07.2013)

In cinematography organizations, theaters, theater and concert organizations, circuses, it is allowed, with the consent of one of the parents (guardian) and the permission of the guardianship and guardianship authority, to conclude an employment contract with persons under the age of fourteen years to participate in the creation and (or) performance (exhibition ) works without prejudice to health and moral development. The employment contract on behalf of the employee in this case is signed by his parent (guardian). The permit of the body of guardianship and guardianship shall indicate the maximum allowable duration of daily work and other conditions under which work may be performed. (As amended by Federal Law No. 90-FZ dated June 30, 2006)

Article 64. Guarantees when concluding an employment contract

An unreasonable refusal to conclude an employment contract is prohibited.

Any direct or indirect restriction of rights or the establishment of direct or indirect advantages when concluding an employment contract depending on gender, race, skin color, nationality, language, origin, property, family, social and official status, age, place of residence ( including the presence or absence of registration at the place of residence or stay), attitude to religion, beliefs, membership or non-membership in public associations or any social groups, as well as other circumstances not related to the business qualities of employees, is not allowed, except cases in which the right or obligation to establish such restrictions or benefits is provided for by federal laws. (as amended by Federal Laws No. 90-FZ of 30.06.2006, No. 162-FZ of 02.07.2013)

It is forbidden to refuse to conclude an employment contract for women for reasons related to pregnancy or the presence of children.

It is forbidden to refuse to conclude an employment contract to employees invited in writing to work by transfer from another employer within one month from the date of dismissal from their previous place of work.

At the request of the person who was refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing.

Refusal to conclude an employment contract may be appealed in court. (As amended by Federal Law No. 90-FZ dated June 30, 2006)

Article Article 64-1. Conditions for concluding an employment contract with former state and municipal employees

(Article introduced by Federal Law No. 280-FZ of December 25, 2008)

(as amended by Federal Law No. 329-FZ of November 21, 2011)

Citizens who have held positions in the state or municipal service, the list of which is established by the regulatory legal acts of the Russian Federation, within two years after their dismissal from the state or municipal service, have the right to fill positions in organizations if certain functions of state management of these organizations were included in official (service) duties state or municipal employee, only with the consent of the relevant commission for compliance with the requirements for official conduct of state or municipal employees and the settlement of conflicts of interest, which is given in the manner established by the regulatory legal acts of the Russian Federation.

Citizens who have held positions in the state or municipal service, the list of which is established by the regulatory legal acts of the Russian Federation, within two years after their dismissal from the state or municipal service, are obliged, when concluding employment contracts, to inform the employer of information about the last place of service.

The employer, when concluding an employment contract with citizens who have filled positions in the state or municipal service, the list of which is established by the regulatory legal acts of the Russian Federation, within two years after their dismissal from the state or municipal service, is obliged to report the conclusion of such an agreement to the representative of the employer (employer) within ten days state or municipal employee at the last place of his service in the manner established by the regulatory legal acts of the Russian Federation.

Article 65. Documents presented at the conclusion of an employment contract

When concluding an employment contract, a person entering a job presents to the employer:

passport or other identity document;

work book, with the exception of cases when the employment contract is concluded for the first time or the employee goes to work on a part-time basis;

insurance certificate of state pension insurance;

documentation military registration- for persons liable for military service and persons subject to conscription for military service;

a document on education and (or) on qualifications or the availability of special knowledge - when applying for a job that requires special knowledge or special training; (As amended by Federal Law No. 185-FZ of July 2, 2013)

a certificate of the presence (absence) of a criminal record and (or) the fact of criminal prosecution or the termination of criminal prosecution on rehabilitating grounds, issued in the manner and in the form established by the federal executive body responsible for the development and implementation of state policy and legal regulation in the field of internal affairs - when applying for a job related to activities, to the implementation of which, in accordance with this Code, other federal law, persons who have or had a criminal record, are or have been subjected to criminal prosecution are not allowed. (paragraph introduced by Federal Law No. 387-FZ of December 23, 2010)

In some cases, taking into account the specifics of work, this Code, other federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation may provide for the need to present additional documents when concluding an employment contract.

It is prohibited to demand from a person applying for a job documents other than those provided for by this Code, other federal laws, decrees of the President of the Russian Federation and resolutions of the Government of the Russian Federation.

When concluding an employment contract for the first time, a work book and an insurance certificate of state pension insurance are drawn up by the employer.

If a person applying for a job does not have a work book due to its loss, damage or for any other reason, the employer is obliged, upon a written application of this person (indicating the reason for the absence of a work book), to issue a new work book. (Part five was introduced by Federal Law No. 90-FZ of June 30, 2006)

Article 66

The work book of the established form is the main document on the work activity and work experience of the employee.

The form, procedure for maintaining and storing work books, as well as the procedure for preparing blank work books and providing employers with them, are established by the federal executive body authorized by the Government of the Russian Federation. (as amended by Federal Law No. 160-FZ of July 23, 2008)

The employer (with the exception of employers who are natural persons who are not individual entrepreneurs) keeps work books for each employee who has worked for him for more than five days, in the case when the work for this employer is the main one for the employee. (Part three as amended by Federal Law No. 90-FZ of June 30, 2006)

The work book contains information about the employee, the work performed by him, transfers to another permanent job and the dismissal of the employee, as well as the grounds for terminating the employment contract and information about awards for success in work. Information about penalties in the work book is not entered, except in cases where dismissal is a disciplinary sanction.

At the request of the employee, information about part-time work is entered in the work book at the place of main work on the basis of a document confirming part-time work.

Part six is no longer valid. - Federal Law of June 30, 2006 N 90-FZ.

Article 67. Form of an employment contract

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 transferred to the employee, the other is kept by the employer. The receipt by the employee of a copy of the employment contract must be confirmed by the signature of the employee on the copy of the employment contract kept by the employer. (As amended by Federal Law No. 90-FZ dated June 30, 2006)

An employment contract that is not executed in writing is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his authorized representative. When the employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date the employee was actually admitted to work, and if the relationship associated with the use of personal labor arose on the basis of a civil law contract, but subsequently was recognized as labor relations - no later than three working days from the date of recognition of these relations as labor relations, unless otherwise established by the court. (as amended by Federal Laws No. 90-FZ of 30.06.2006, No. 421-FZ of 28.12.2013)

When concluding employment contracts with certain categories of employees, labor legislation and other regulatory legal acts containing labor law norms may provide for the need to agree on the possibility of concluding employment contracts or their conditions with relevant persons or bodies that are not employers under these contracts, or draw up employment contracts in more copies. (As amended by Federal Law No. 90-FZ dated June 30, 2006)

Article 67.1. The consequences of the actual admission to work by an unauthorized person

(introduced by Federal Law No. 421-FZ of December 28, 2013)

If an individual was actually admitted to work by an employee not authorized by the employer, and the employer or his authorized representative refuses to recognize the relationship that has arisen between the person actually admitted to work and this employer, labor relations (to conclude with a person actually admitted to work to work, employment contract), the employer, in whose interests the work was performed, is obliged to pay such an individual for the time actually worked by him (work performed).

An employee who has actually been admitted to work without being authorized by the employer is held liable, including material liability, in the manner prescribed by this Code and other federal laws.

Article 68

Employment is formalized by the order (instruction) of the employer, issued on the basis of the concluded employment contract. The content of the order (instruction) of the employer must comply with the terms of the concluded employment contract.

The order (instruction) of the employer on employment is announced to the employee against signature within three days from the date of the actual start of work. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction). (As amended by Federal Law No. 90-FZ dated June 30, 2006)

When hiring (before signing an employment contract), the employer is obliged to familiarize the employee against signature with the internal labor regulations, other local regulations directly related to the employee's labor activity, the collective agreement. (Part three as amended by Federal Law No. 90-FZ of June 30, 2006)

Article 69

Article 70

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

When concluding an employment contract, by agreement of the parties, it may provide for a condition on testing the employee in order to verify his compliance with the assigned work.

The absence of a test clause in the employment contract means that the employee is hired without a test. In the case when an employee is actually allowed to work without drawing up an employment contract (part two of Article 67 of this Code), a test condition can be included in the employment contract only if the parties have drawn it up in the form of a separate agreement before starting work.

During the probation period, the employee is subject to the provisions of labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations.

A test for employment is not established for:

persons elected on the basis of a competition for the corresponding position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;

pregnant women and women with children under the age of one and a half years;

persons under the age of eighteen;

persons who have received secondary vocational education or higher education according to state-accredited educational programs and for the first time entering work in the acquired specialty within one year from the date of receiving professional education of the appropriate level; (As amended by Federal Law No. 185-FZ of July 2, 2013)

persons elected to elective office for paid work;

persons invited to work in the order of transfer from another employer as agreed between employers;

persons concluding an employment contract for a period of up to two months;

other persons in cases stipulated by this Code, other federal laws, a collective agreement.

The probation period may not 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.

When concluding an employment contract for a period of two to six months, the probation may not exceed two weeks.

The period of temporary disability of the employee and other periods when he was actually absent from work are not included in the probationary period.

Article 71

In case of an unsatisfactory test result, the employer has the right to terminate the employment contract with the employee before the expiration of the test period, notifying him in writing no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as not having passed the test. The employee has the right to appeal against the decision of the employer in court. (As amended by Federal Law No. 90-FZ dated June 30, 2006)

If the test result is unsatisfactory, the termination of the employment contract is made without taking into account the opinion of the relevant trade union body and without paying severance pay.

If the probation period has expired, and the employee continues to work, then he is considered to have passed the probation and the subsequent termination of the employment contract is allowed only on a general basis.

If during the trial period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request, notifying the employer in writing three days in advance.

Chapter 12. AMENDMENT OF AN EMPLOYMENT CONTRACT

Article 72

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

Changing the terms of the employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, with the exception of cases provided for by this Code. An agreement to change the terms of an employment contract determined by the parties is concluded in writing.

Article 72.1. Transfer to another job. moving

(Introduced by Federal Law No. 90-FZ of June 30, 2006)

Transfer to another job - a permanent or temporary change in the labor function of an employee and (or) the structural unit in which the employee works (if the structural unit was indicated in the employment contract), while continuing to work for the same employer, as well as transfer to work in another locality along with the employer. Transfer to another job is allowed only with the written consent of the employee, except for the cases provided for by parts two and three of Article 72.2 of this Code.

At the written request of the employee or with his written consent, the employee may be transferred to a permanent job with another employer. In this case, the employment contract at the previous place of work is terminated (paragraph 5 of the first part of Article 77 of this Code).

Does not require the consent of the employee to move him from the same employer to another workplace, to another structural unit located in the same area, entrusting him to work on another mechanism or unit, if this does not entail a change in the terms of the employment contract determined by the parties.

It is forbidden to transfer and move an employee to work that is contraindicated for him for health reasons.

Article 72.2. Temporary transfer to another job

(Introduced by Federal Law No. 90-FZ of June 30, 2006)

By agreement of the parties, concluded in writing, the employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case when such a transfer is carried out to replace a temporarily absent employee, who, in accordance with the law, retains his job , - until the employee goes to work. If at the end of the transfer period the previous job is not provided to the employee, but he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer becomes invalid and the transfer is considered permanent.

In the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases that endanger the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer in order to prevent these cases or eliminate their consequences.

The transfer of an employee without his consent for a period of up to one month to work not stipulated by an employment contract with the same employer is also allowed in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent the destruction or damage to property, or replacement temporarily absent employee, if downtime or the need to prevent the destruction or damage of property or to replace a temporarily absent employee is caused by the emergency circumstances specified in part two of this article. At the same time, transfer to work requiring lower qualifications is allowed only with the written consent of the employee.

When transfers are made in the cases provided for in parts two and three of this article, the employee's remuneration is made according to the work performed, but not lower than the average earnings for the previous job.

Article 73. Transfer of an employee to another job in accordance with a medical report

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

An employee who needs to be transferred to another job in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, with his written consent, the employer is obliged to transfer to another job available to the employer that is not contraindicated to the employee for health reasons.

If an employee who is in need of a medical certificate during temporary transfer to another job for a period of up to four months, refuses to transfer or the employer does not have a corresponding job, then the employer is obliged to remove the employee from work for the entire period specified in the medical report, while maintaining the place of work (position). During the period of suspension from work, wages are not accrued to the employee, with the exception of cases provided for by this Code, other federal laws, a collective agreement, agreements, and an employment contract.

If, in accordance with a medical report, an employee needs a temporary transfer to another job for a period of more than four months or a permanent transfer, then if he refuses to transfer or if the employer does not have the appropriate job, the employment contract is terminated in accordance with clause 8 of part one of Article 77 of this Code .

An employment contract with the heads of organizations (branches, representative offices or other separate structural subdivisions), their deputies and chief accountants who, in accordance with a medical report, need temporary or permanent transfer to another job, if the transfer is refused or the employer does not have the appropriate job, is terminated in in accordance with paragraph 8 of the first part of Article 77 of this Code. The employer has the right, with the written consent of these employees, not to terminate the employment contract with them, but to suspend them from work for a period determined by agreement of the parties. During the period of suspension from work, wages are not accrued to the specified employees, except for the cases provided for by this Code, other federal laws, a collective agreement, agreements, and an employment contract.

Article 74

(As amended by Federal Law No. 90-FZ dated June 30, 2006)

In the event that, for reasons related to changes in organizational or technological working conditions (changes in engineering and production technology, structural reorganization of production, other reasons), the terms of the employment contract determined by the parties cannot be saved, they can be changed at the initiative of the employer, with the exception of changes in the work function of the employee.

The employer is obliged to notify the employee in writing of the forthcoming changes in the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, at least two months in advance, unless otherwise provided by this Code.

If the employee does not agree to work under the new conditions, the employer is obliged in writing to offer him another job available to the employer (both a vacant position or a job corresponding to the employee’s qualifications, and a vacant lower position or lower-paid job), which the employee can perform taking into account his health status. At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract.

In the absence of the specified work or the refusal of the employee from the proposed work, the employment contract is terminated in accordance with paragraph 7 of the first part of Article 77 of this Code.

In the event that the reasons specified in part one of this article may lead to the mass dismissal of employees, the employer, in order to save jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization and in the manner established by Article 372 of this Code, to adopt local regulations , introduce a part-time (shift) and (or) part-time working week for up to six months.

If the employee refuses to continue working part-time (shift) and (or) part-time working week, then the employment contract is terminated in accordance with paragraph 2 of the first part of Article 81 of this Code. At the same time, the employee is provided with appropriate guarantees and compensation.

Cancellation of the part-time (shift) and (or) part-time working week regime earlier than the period for which they were established is carried out by the employer, taking into account the opinion of the elected body of the primary trade union organization.

Changes in the terms of the employment contract determined by the parties, introduced in accordance with this article, should not worsen the position of the employee in comparison with the established collective agreement, agreements.

Article 75

(as amended by Federal Law No. 55-FZ of April 2, 2014)

When the owner of the organization's property changes, the new owner, no later than three months from the date of the emergence of his ownership right, has the right to terminate the employment contract with the head of the organization, his deputies and the chief accountant.

The change of the owner of the property of the organization is not a basis for terminating employment contracts with other employees of the organization.

If the employee refuses to continue working due to a change in the owner of the organization's property, the employment contract is terminated in accordance with paragraph 6 of Article 77 of this Code.

When changing the owner of the property of an organization, a reduction in the number or staff of employees is allowed only after state registration of the transfer of ownership.

A change in the jurisdiction (subordination) of an organization or its reorganization (merger, accession, division, spin-off, transformation) or a change in the type of a state or municipal institution cannot be grounds for terminating employment contracts with employees of an organization or institution. (as amended by Federal Laws No. 90-FZ of 30.06.2006, No. 55-FZ of 02.04.2014)

If the employee refuses to continue working in the cases provided for by part five of this article, the employment contract is terminated in accordance with paragraph 6 of article 77 of this Code.

Article 76. Suspension from work

The employer is obliged to suspend from work (not allow to work) the employee:

appeared at work in a state of alcoholic, narcotic or other toxic intoxication;

Persons under the age of eighteen, as well as other persons in the cases provided for by this Code and other federal laws, are subject to mandatory preliminary medical examination when concluding an employment contract. (as amended by Federal Laws No. 90-FZ of 30.06.2006, No. 317-FZ of 25.11.2013)

not passed in the prescribed manner mandatory medical checkup(examination), as well as a mandatory psychiatric examination in cases provided for by this Code, other federal laws and other regulatory legal acts of the Russian Federation; (as amended by Federal Law No. 353-FZ of November 30, 2011)

if, in accordance with a medical certificate issued in accordance with the procedure established by federal laws and other regulatory legal acts of the Russian Federation, contraindications are revealed for the employee to perform work stipulated by an employment contract;

in the event of suspension for a period of up to two months of an employee’s special right (license, right to drive a vehicle, the right to carry weapons, other special rights) in accordance with federal laws and other regulatory legal acts of the Russian Federation, if this entails the impossibility of fulfilling the employee of obligations under the employment contract and if it is impossible to transfer the employee with his written consent to another job available to the employer (both a vacant position or a job corresponding to the qualifications of the employee, and a vacant lower position or lower-paid job), which the employee can perform taking into account his state of health . At the same time, the employer is obliged to offer the employee all the vacancies that meet the specified requirements that he has in the given area. The employer is obliged to offer vacancies in other localities, if it is provided for by the collective agreement, agreements, labor contract;

at the request of bodies or officials authorized by federal laws and other regulatory legal acts of the Russian Federation;

in other cases provided for by this Code, other federal laws and other regulatory legal acts of the Russian Federation. (as amended by Federal Law No. 353-FZ of November 30, 2011) (part one as amended by Federal Law No. 90-FZ of June 30, 2006)

The employer suspends from work (does not allow to work) the employee for the entire period of time until the circumstances that were the basis for suspension from work or non-admission to work are eliminated, unless otherwise provided by this Code, other federal laws. (as amended by Federal Law No. 353-FZ of November 30, 2011)

During the period of suspension from work (non-admission to work), wages are not accrued to the employee, with the exception of cases provided for by this Code or other federal laws. In cases of suspension from work of an employee who has not passed training and testing of knowledge and skills in the field of labor protection or a mandatory medical examination through no fault of his own, he is paid for the entire period of suspension from work as for downtime. (as amended by Federal Laws No. 90-FZ of 30.06.2006, No. 353-FZ of 30.11.2011, No. 317-FZ of 25.11.2013)

Chapter 13. TERMINATION OF AN EMPLOYMENT CONTRACT

Article 77. General grounds for termination of an employment contract

The grounds for termination of an employment contract are:

Full text of Art. 57 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2019. Legal advice on Article 57 of the Labor Code of the Russian Federation.

The employment contract specifies:
last name, first name, patronymic of the employee and the name of the employer (last name, first name, patronymic of the employer - an individual) who entered into an employment contract;
information about the documents proving the identity of the employee and the employer - an individual;
taxpayer identification number (for employers, except for employers - individuals who are not individual entrepreneurs);
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 employment contract.

The following conditions are mandatory for inclusion in an employment contract:
place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another locality, the place of work indicating the separate structural unit and its location;
labor function (work according to the position in accordance with the staff list, profession, specialty, indicating qualifications; a specific type of work assigned to the employee). If in accordance with this Code, other federal laws, the provision of compensations and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the names of these positions, professions or specialties and qualification requirements for them must correspond to the names and requirements specified in qualification reference books approved in the manner established by the Government of the Russian Federation, or the relevant provisions of professional standards;
the date of commencement of work, and in the case when a fixed-term employment contract is concluded, also the term of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with this Code or other federal law;
terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);
the mode of working time and rest time (if for this employee it differs from the general rules in force for this employer);
guarantees and compensations for work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, indicating the characteristics of working conditions at the workplace;
conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work);
working conditions in the workplace;
a condition on compulsory social insurance of an employee in accordance with this Code and other federal laws;
other conditions in cases provided for by labor legislation and other regulatory legal acts containing labor law norms.

The employment contract may provide for additional conditions that do not worsen the position of the employee in comparison with the established labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, in particular:
on the specification of the place of work (indicating the structural unit and its location) and (or) on the workplace;
about the test;
on non-disclosure of legally protected secrets (state, official, commercial and other);
on the obligation of the employee to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer;
on the types and conditions of additional employee insurance;
on improving the social and living conditions of the employee and members of his family;
on clarifying, in relation to the working conditions of this employee, the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms;
on additional non-state pension provision for an employee.

By agreement of the parties, the employment contract may also include the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms, local regulations, as well as the rights and obligations of the employee and the employer arising from the terms of the collective agreement, agreements . The failure to include in the employment contract any of the specified rights and (or) obligations of the employee and the employer cannot be considered as a refusal to exercise these rights or fulfill these obligations.

Commentary on Article 57 of the Labor Code of the Russian Federation

1. It is established by law that the following details are indicated in the employment contract: information about the place and date of its conclusion; parties to labor relations, in particular, the surname, name, patronymic of the employee and the name of the employer, information about the documents proving the identity of the employee and the employer-individual, taxpayer identification number, information about the representative of the employer who signed the employment contract, and the basis by virtue of which he given the appropriate powers.

At the same time, the content of the employment contract, by agreement of the parties, may include the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing the norms of labor law, LNA, as well as the rights and obligations of the employee and the employer arising from the conditions of the collective contracts, agreements.

2. Consider the working conditions that are mandatory included in the employment contract.

The mandatory conditions of an employment contract include, firstly, the place of work.

The concept of a place of work is not contained in labor legislation, but it should be distinguished from the concept of a workplace, which is defined in Art. 209 of the Labor Code of the Russian Federation as a place where the employee must be, or where he needs to arrive in connection with his work, and which is directly or indirectly under the control of the employer. Place of work is a broader concept, which means an organization, an institution in which, perhaps, an employee has several jobs.

The law also provides that in the case when an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another locality, the employment contract must indicate the place of work, indicating the separate structural unit and its location.

In this case, if the provision of compensations and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the names of these positions, professions or specialties and qualification requirements for them must correspond to the names and requirements specified in the qualification reference books or relevant the provisions of professional standards.

For these purposes, the Institute of Labor developed and by resolution of the Ministry of Labor of Russia dated August 21, 1998 N 37, the Qualification Directory for the positions of managers, specialists and other employees was approved.

Directory contains qualification characteristics employee positions. It also states that each qualification characteristic is a regulatory document that defines the employee's labor function and regulates its content. On the basis of qualification characteristics, job descriptions are developed for specific employees, in the preparation of which the duties provided for in the characteristics are specified, taking into account the peculiarities of the organization of production, labor and management, and the technology for performing labor processes. At the same time, it was noted that it is necessary to ensure the exact correspondence of the names of the posts All-Russian classifier professions of workers, positions of employees and wage categories both in qualification characteristics and in job descriptions. This Directory includes the qualification characteristics of mass positions common to all sectors of the economy, the most widely used in practice. Qualification characteristics of positions specific to individual industries are developed by ministries (departments).

So, for example, by the Decree of the Ministry of Labor of the Russian Federation of December 20, 2002 N 82, the Qualification Directory of the positions of managers and specialists of organizations of geology and exploration of the subsoil was approved, by the Decree of the Ministry of Labor of the Russian Federation of January 29, 2004 N 4, the Qualification Guide of the positions of managers, specialists and other employees of organizations in the electric power industry was approved, Order of the Ministry of Labor of Russia dated June 18, 2014 N 384n approved the Unified Qualification Directory for the positions of managers, specialists and employees, etc.

The next essential condition of the employment contract is the date of commencement of work.

In the case when a fixed-term employment contract is concluded, along with the date of commencement of work, it is necessary to indicate the period of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with the Labor Code of the Russian Federation or other federal law. The absence of such a condition means that the employment contract is concluded for an indefinite period. Cases of concluding a fixed-term employment contract have been established.

The employee is obliged to start performing labor duties from the day specified in the employment contract. If the employment contract does not specify the day of commencement of work, the employee must start work on the next working day after the entry into force of the contract. According to Art. 61 of the Labor Code of the Russian Federation, as a general rule, an employment contract enters into force from the day it is signed 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.

An important element of the content and essential terms of the employment contract are the terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments).

Concepts wages, the tariff rate and the official salary are disclosed by the legislator, according to which wages (employee's wages) are remuneration for work depending on the qualifications of the employee, the complexity, quantity, quality and conditions of the work performed, as well as compensation and incentive payments.

The salary of each employee depends on his qualifications, the complexity of the work performed, the quantity and quality of the labor expended and is not limited to the maximum amount, but cannot be less than the minimum wage (from January 1, 2015, the minimum wage is 5965 rubles per month in accordance with Article 1 of the Federal Law "On minimum wage").

Supplements to wages by labor legislation are provided for certain categories of workers. So, for example, according to Art. 315 of the Labor Code of the Russian Federation, with the use of regional coefficients and percentage bonuses to wages, wages are paid in the regions of the Far North and equivalent areas.

An additional payment to an employee is provided for when combining professions (positions), expanding service areas, increasing the volume of work or performing the duties of a temporarily absent employee without exemption from work determined by the employment contract, during overtime work (Article 151,).

If for a particular employee the conditions for working hours and rest differ from the general rules in force for a given employer, then they are subject to mandatory inclusion in the employment contract.

Based on the provisions of labor legislation, the working hours should provide for the duration of the working week, work with irregular working hours for certain categories of workers, the duration of daily work (shifts), including part-time work (shifts), start and end times of work, break times in work, the number of shifts per day, alternation of workers and non-working days which are established by the internal labor regulations, collective agreement, agreements.

In accordance with Art. 106 of the Labor Code of the Russian Federation, rest time is the time during which the employee is free from the performance of labor duties and which he can use at his own discretion. These are breaks during the working day (shift), daily (between shifts) rest, weekends (weekly continuous rest), non-working holidays, holidays.

Decree of the Government of the Russian Federation of December 10, 2002 N 877 "On the peculiarities of the working hours and rest periods of certain categories of workers with a special nature of work" establishes that the features of the working hours and rest periods of certain categories of workers with a special nature of work are determined by the relevant federal executive authorities in agreement with the Ministry of Labor and social protection Russian Federation and the Ministry of Health of the Russian Federation, and in the absence of an appropriate federal executive body - the Ministry of Labor and Social Protection of the Russian Federation.

Features of the regime of work and rest are found, for example, in the labor activity of workers whose work is directly related to the movement Vehicle, when citizens work on a rotational basis.

One of the working conditions of the employee, which must be reflected in the employment contract, are guarantees and compensations for work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, indicating the characteristics of working conditions at the workplace.

Part 2 of Art. 219 of the Labor Code of the Russian Federation provides that the amount of compensation to employees engaged in heavy work, work with harmful and (or) dangerous working conditions, and the conditions for their provision are established in the manner determined by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations .

In order to identify harmful and (or) dangerous production factors and take measures to bring working conditions in line with state regulatory requirements for labor protection, a special assessment of working conditions is carried out in accordance with the requirements of Federal Law No. 426-FZ of December 28, 2013 "On Special Assessment working conditions".

According to Art. 3 of this law, a special assessment of working conditions is a single set of consistently implemented measures to identify harmful and (or) dangerous factors production environment and the labor process and assessment of the level of their impact on the employee, taking into account the deviation of their actual values from the standards (hygienic standards) of working conditions and the use of personal and collective protection of workers established by the federal executive body authorized by the Government of the Russian Federation.

The issues of establishing the procedure for providing and determining the amount of guarantees (compensations) for work in harmful (dangerous) working conditions are regulated by Art. Art. 92, 117 and 147 of the Labor Code of the Russian Federation.

The essential conditions of the employment contract are also the conditions that determine, if necessary, the nature of the work.

In the commented article of the Labor Code of the Russian Federation, three types of the nature of the work are given:
- mobile;
- traveling;
- on my way.

The list of the nature of work is not exhaustive, however, the Labor Code of the Russian Federation does not disclose these concepts. In this regard, the employer may have difficulty in qualifying the nature of the work and defining it in the employment contract.

A certain concept of the mobile and traveling nature of work is presented in the resolution of the USSR State Committee for Labor, the Secretariat of the All-Union Central Council of Trade Unions dated June 1, 1989 N 169 / 10-87 "On approval of the Regulations on the payment of allowances associated with the mobile and traveling nature of work in construction."

Thus, according to clause 1 of this resolution, an allowance for the mobile nature of work is established for employees in order to compensate for the increased costs associated with frequent relocation of the organization (relocation of employees) or isolation from their permanent place of residence.

In accordance with paragraph 2 of the said resolution, an allowance for the traveling nature of work is established for employees performing work at facilities located at a considerable distance from the location of the organization, in connection with trips during off-hours from the location of the organization (collection point) to the place of work at the facility and back.

The Labor Code of the Russian Federation when establishing the need to reimburse expenses associated with business trips of employees, permanent job which is carried out on the road or has a traveling character, also indicates the expeditionary nature of the work and work in the field (Article 168.1 of the Labor Code of the Russian Federation).

Working conditions at the workplace should also be reflected in the employment contract. According to Art. 209 of the Labor Code of the Russian Federation, working conditions are a combination of factors in the working environment and the labor process that affect the performance and health of an employee. The workplace, as already noted, is the place where the employee must be, or where he needs to arrive in connection with his work, and which is directly or indirectly under the control of the employer. We note that according to the results of the special evaluation working conditions, classes (subclasses) of working conditions at workplaces are established.

The employment contract must also indicate the condition on compulsory social insurance of the employee in accordance with the Labor Code of the Russian Federation and other federal laws.

It should be noted that compulsory social insurance is a part of the state system of social protection of the population, the specifics of which is the insurance of working citizens carried out in accordance with federal law against a possible change in material and (or) social situation, including due to circumstances beyond their control.

Compulsory social insurance is a system of legal, economic and organizational measures created by the state aimed at compensating or minimizing the consequences of changes in the material and (or) social status of working citizens, and in cases provided for by the legislation of the Russian Federation, other categories of citizens due to reaching retirement age, disability, loss of a breadwinner, illness, injury, accident at work or occupational disease, pregnancy and childbirth, birth of a child (children), care for a child under the age of one and a half years and other events established by the legislation of the Russian Federation on compulsory social insurance (see Federal Law No. 165-FZ of July 16, 1999 "On the Fundamentals of Compulsory Social Insurance").

So, in accordance with the current Russian legislation, citizens working under an employment contract are subject to compulsory medical, pension insurance, compulsory social insurance against accidents at work and occupational diseases, compulsory social insurance in case of temporary disability and in connection with motherhood (see Federal Law "On Compulsory Medical Insurance in the Russian Federation", Federal Law "On Compulsory Pension Insurance of the Russian Federation", Federal Law "On Compulsory Social Insurance against Occupational Accidents and Occupational Diseases", Federal Law "On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood" ).

So, part 3 of Art. 348.2 of the Labor Code of the Russian Federation contains the mandatory terms of an employment contract with an athlete, which are indicated in the agreement along with the mandatory conditions provided for in Part 2 of Art. 57 of the Labor Code of the Russian Federation. These are, for example, the obligations of an athlete to comply with the sports regime established by the employer and fulfill plans for preparing for sports competitions, take part in sports competitions only at the direction of the employer, comply with the all-Russian anti-doping rules and anti-doping rules approved by international anti-doping organizations, undergo doping control, etc. .d.

In addition to the conditions established by Part 2 of Art. 57 of the Labor Code of the Russian Federation, mandatory for inclusion in an employment contract with a coach is a condition on the obligation of the coach to take measures to prevent violations by the athlete (athletes) of the all-Russian anti-doping rules and anti-doping rules approved by international anti-doping organizations.

3. An employment contract may provide for the following additional conditions:
- on specifying the place of work (indicating the structural unit and its location) and (or) on the workplace;
- about the test;
- on non-disclosure of legally protected secrets (state, official, commercial and other);
- on the obligation of the employee to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer;
- on the types and conditions of additional employee insurance;
- on improving the social and living conditions of the employee and members of his family;
- on clarifying, in relation to the working conditions of this employee, the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms;
- on additional non-state pension provision for an employee.

The specified additional terms of the employment contract should not worsen the position of the employee in comparison with the established labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, LNA.

It should be noted that if, when concluding an employment contract, it did not include any information, conditions that are essential terms of the employment contract, then this is not a basis for recognizing the employment contract as not concluded or terminating it. In this case, the employment contract must be supplemented.

By agreement of the parties, the employment contract may also include other rights and obligations of the parties established by labor legislation, LNA, as well as the rights and obligations of the employee and employer arising from the terms of the collective agreement, agreements.

If these rights and obligations are not included in the employment contract, this fact cannot be considered as a refusal to implement them.

Another commentary on Art. 57 of the Labor Code of the Russian Federation

1. The ambiguity of the very concept of "contract" makes it possible to distinguish between an employment contract as a legal fact, an agreement of the parties, an employment relationship, and, finally, as a written document. The commented article, interpreting the content of the employment contract exclusively in its last meaning - as a written document, formulates a certain system of requirements for the content of this document, in other words, for the form of the employment contract.

It is necessary to distinguish between the concepts of "requisites" and "conditions" of the contract. The requisites of the contract as a written document are the ordered information contained in it, namely the data on the place of its conclusion; parties to the agreement; the rights and obligations of the parties of a non-contractual nature, etc. The terms of the employment contract are developed by the parties and, therefore, represent an agreement between the employee and the employer on certain aspects of the interaction of the parties within the framework of the employment relationship. The terms of the employment contract constitute its content as an agreement of the parties and, as a general rule, are included in the contract (as a written document).

The commented article in part 1 establishes the obligation to indicate in the employment contract such details as its subject composition (last name, first name, patronymic of the employee), as well as the name of the employer (surname, first name and patronymic of the employer - an individual).

When formulating information about an employer - a legal entity, one should also indicate data about his representative (body) and the legal basis that allows him to act on behalf of the employer, including concluding employment contracts.

In accordance with Art. 53 of the Civil Code, a legal entity acquires civil rights and assumes civil obligations through its bodies acting in accordance with the law, other legal acts and constituent documents. As a rule, employment contracts are concluded by the head of the organization. The latter is recognized as an individual who, in accordance with the law or the constituent documents of the organization, manages this organization, including performing the functions of its sole executive body(see article 273 of the Labor Code and commentary to it).

Legislation (part 2 of article 273 of the Labor Code; clause 3 of article 103 of the Civil Code; article 69 of the Federal Law of December 26, 1995 N 208-FZ "On Joint Stock Companies") establishes cases when the management of an organization is carried out under an agreement with another organization (managing organization) or individual entrepreneur (manager). The functions of an individual executive body can also be transferred to a manager in limited liability companies (Articles 40, 42 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies"). In such cases, when concluding an employment contract, the details of the contract on the basis of which the managing organization or individual manager acts are indicated.

In large organizations, the right to conclude employment contracts may be granted not to the director, but to one of the leaders of the organization (for example, the director of human resources). In this case, the employment contract indicates the basis on which the relevant manager acts (for example, an order CEO on the redistribution of powers to manage the organization or other local regulatory legal act).

By virtue of paragraph 3 of Art. 55 of the Civil Code, heads of representative offices and branches are appointed by a legal entity and act on the basis of its power of attorney. A power of attorney issued to the head of a branch (representative office) may establish his right to conclude employment contracts on behalf of a legal entity and dismiss employees. In this case, the concluded employment contract indicates not only the name of the employer (legal entity), but also the surname, name and patronymic of the head, and also refers to the appropriate power of attorney. At the same time, the possibility of the head of a separate structural unit carrying out activities to conclude labor contracts with employees of this unit and on the basis of an order of the head of a legal entity on the redistribution of powers is not ruled out.

The terms of the employment contract must be divided into two groups: 1) the conditions under which the parties must, by virtue of the law, reach an agreement (mandatory (necessary)); 2) conditions established on the initiative of either the employee or the employer (additional (optional)).

3. Mandatory (necessary) conditions are recognized that determine the legal nature of the contract as labor. The binding nature of certain terms of the contract serves as a guarantee of protecting the interests of the weaker party, which, as a rule, is the employee. The parties must reach an agreement on each such condition and fix it in the contract. By virtue of Art. 57 of the Labor Code, the following conditions can be attributed to the mandatory (necessary):

a) an employment agreement. The labor function means the qualitative characteristics of labor - its type and quality (qualification). Qualification of an employee - the level of his knowledge, skills, professional skills and work experience (see Article 195.1 of the Labor Code and commentary thereto). The easiest way to determine the labor function is to indicate in the contract the profession, specialty and qualification or position in which the employee will work. Specific requirements for this species labor (what an employee who has assumed this labor function should know and be able to do) are determined in an extra-contractual manner - the so-called tariff and qualification characteristics (handbooks), professional standards or job descriptions.

Qualitative characteristics of labor are often associated with the personal qualities of the employee. In this case, a simple indication in the contract for the position is not enough to determine the content of the labor function. The labor function should be described in the contract by listing the main activities of the employee, as well as his rights and obligations by position. When an employee personifies an individual body of a legal entity, his labor function is also determined by the constituent documents of this legal entity, which approve the competence of the relevant executive body.

As for the quantitative characteristics of labor, usually the fact of concluding an employment contract means that the employee assumes the obligation to fulfill the established production standards, to obey the rules of the internal labor schedule. In some cases, the employment contract may indicate the quantitative indicators of labor, the achievement of which is assumed by the employee. So, in the employment contract with the head of the enterprise, a condition may be established on his obligation to raise the profitability of the enterprise by a certain percentage.

When formulating the content of the labor function assumed by the employee in the employment contract, one should take into account the indication of Part 2 of Art. 57 of the Labor Code, by virtue of which, if, according to federal laws, the provision of compensations and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, the names of these positions, professions or specialties and qualification requirements for them must correspond to the names and requirements specified in qualification reference books approved in the manner prescribed by the Government of the Russian Federation, or the provisions of professional standards. In general terms, this procedure is specified by Decree of the Government of the Russian Federation of October 31, 2002 N 787 "On the procedure for approving the Unified Tariff qualification handbook jobs and professions of workers, the Unified Qualification Directory for the Positions of Managers, Specialists and Employees.

The Unified Tariff and Qualification Handbook of Works and Professions of Workers and the Unified Qualification Handbook for the Positions of Managers, Specialists and Employees should contain the qualification characteristics of the main types of work, depending on their complexity, as well as the requirements for professional knowledge and skills of workers. The federal state labor authorities were instructed to organize, together with the federal executive authorities, which are entrusted with the management, regulation and coordination of activities in the relevant sector (sub-sector) of the economy, the development of the Unified Tariff and Qualification Directory of Works and Professions of Workers, the Unified Qualification Directory of the Positions of Managers, Specialists and employees and the procedure for their application, as well as to approve the indicated reference books and the procedure for their application.

For professional standards, see Art. 195.1 of the Labor Code and commentary to it;

b) an agreement on the place of work. The place of work is the organization (the owner's sphere of the employer), within which the work of the employee is supposed to be applied. AT modern conditions should separate the concepts of "employer" and "place of work". This distinction is generally irrelevant for small employers, but is essential for legal entities, in organizational structure which may contain many structural units or subdivisions that are clearly delimited from each other from a technical (technological) point of view, organizational or territorial. For example, joint-stock company may own multiple manufacturing enterprises that produce various products, as well as institutions (design institutes, healthcare institutions, etc.); as a rule, not only various faculties, but also research institutes, etc. are represented in the structure of the university. Such structural units of the employer - a legal entity are not always located in the same area according to the existing administrative-territorial division. Under these conditions, the categories of the employer as a party to the employment contract and the place of work of the employee do not coincide: the employer is an organization - a legal entity as a whole, and the place of work of an employee is an organization or institution in the structure of a legal entity as an organizational and technological complex located in a certain place, in which his labor. As a general rule, the formal criterion for determining the place of work of an employee can be the enterprise (institution) where work books are maintained and stored.

If the place of employment of the employee will be a separate structural unit (branch or representative office) of a legal entity, the parties must agree on this as a condition of the employment contract being concluded.

In addition to branches and representative offices (separate structural divisions), a structural division of an organization should be understood as departments, workshops, sections, etc. (part 3, clause 16 of the Decree 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 Labor Code Russian Federation"). When concluding an employment contract, the parties have the right to clarify the place of use of the employee's labor in relation to one or another structural unit organizations.

Finally, the parties may stipulate the workplace in the employment contract, i.e. a specific unit, mechanism, machine tool, object with which the employee interacts while carrying out labor activity (see article 209 of the Labor Code and commentary thereto);

c) an agreement on the validity of the contract in time. This condition of the employment contract includes: the moment of commencement of the employment contract; start date of work; contract time; the moment of termination of the contract.

The moment of commencement of the employment contract is determined according to the rules established by Art. 61 TK.

When formulating a condition on the validity of an employment contract in time, it should be taken into account that the legislation recognizes as the main type a contract concluded for an indefinite period (part 2 of article 58 of the Labor Code). When concluding an employment contract for an indefinite period, it indicates the date of commencement of its action. The fixed-term employment contract indicates the validity period and the circumstance (reason) that served as the basis for its conclusion in accordance with the Labor Code and other federal laws (see Article 59 of the Labor Code and commentary thereto).

Since the employment contract is of a continuing nature, when concluding it, the parties must agree on the condition for the validity of the contract in time. In the event that the contract is concluded for an indefinite period, the specified condition may be agreed upon either by default or by an appropriate clause in the text of the contract as a written document. When concluding a fixed-term employment contract, the parties must specify the term of its validity as a mandatory condition of the contract;

d) salary agreement. Within the framework of this condition of the employment contract, the following are fixed: the amount of wages (tariff rate or official salary of the employee, additional payments, allowances and incentive payments); the procedure for its payment (the right to advance payment, the amount of the latter, the place and procedure for paying wages, etc.);

e) an agreement on the regime of work and rest. The mode of working time and rest time refers to those conditions of the employment contract, regarding which the parties cannot fail to reach an agreement when concluding an employment contract. As well as the term of the contract, the condition under consideration can be set by default (in this case, it should be considered that the parties have reached an agreement on the work of the employee in the conditions of the work and rest regime established by the general rules in force for this employer). If the regime of working time and rest time differs from that generally accepted by the employer, an agreement on this score, indicating the regime of work established for the employee, is fixed in the text of the employment contract as an essential condition constituting its content;

f) an agreement on the nature of the work (mobile, traveling, on the road, etc.) is one of the mandatory conditions of the employment contract. This condition can be set in two ways.

The specified agreement may be an element of an agreement on the labor function: by determining the position or profession or specialty, the parties thereby establish a condition on the nature of the work. At the same time, the nature of the work can be specified by the relevant instructions for the position or the tariff and qualification characteristics of the profession (specialty), which the employee must be familiarized with when concluding an employment contract before it is signed by the parties (see Article 68 of the Labor Code and commentary thereto).

Or, if it is necessary to individualize the nature of the work in relation to a specific labor legal relationship, the nature of the work becomes the subject of negotiations between the parties and is fixed in the text of the employment contract as a condition that constitutes an element of the content of the contract;

g) working conditions at the workplace. Working conditions - a set of factors of the working environment and the labor process that affect the performance and health of the employee. Among these factors, the legislator identifies harmful and dangerous production factors and, in addition, defines the concept safe conditions labor (see article 209 of the Labor Code and commentary to it). Along with those specified in the employment contract, other working conditions may be agreed upon (work on a specific unit, the use of certain methods and techniques in the course of the employee’s labor activity, etc.), which are essential for both parties to the contract or one party and therefore stipulated in the labor contract.

4. The legislator considered it necessary in Part 3 of Art. 57 of the Labor Code to emphasize that if, when concluding an employment contract, it did not include any information and (or) conditions from among those indicated in parts 1 and 2 of Art. 57 of the Labor Code, this is not a basis for recognizing an employment contract as not concluded or terminating it. In this case, the contract is subject to replenishment with missing information (conditions). The missing conditions are determined by the appendix to the employment contract or by a separate agreement of the parties, concluded in writing, which are an integral part of the employment contract.

Such a clarification by the legislator seems quite reasonable if the employment contract is interpreted exclusively as a written document. However, an employment contract, unlike, say, notarial acts, is not a strictly formalized document and cannot act as such, therefore the absence of certain details in its text does not discredit the document itself as a whole; missing details can be filled in the form and in the manner prescribed by law.

At the same time, if an employment contract is interpreted as an agreement that gives rise to the rights and obligations of the parties in the labor legal relationship arising on its basis, then the solution proposed by the legislator is essentially a departure from the problem. Indeed, it is possible to supplement the contract as a written text with an additional agreement regarding a particular condition - but only if the parties have reached agreement on the relevant condition. What should be the decision in the absence of agreement in principle?

There are currently two possible solutions to this problem. If disagreements regarding a specific condition were discovered and were not resolved before the employee began work, the contract should be considered not concluded, i.e. non-existent. If such a situation is discovered after the employee has started work, the employment contract must be recognized as concluded and entered into force; accordingly, if it is found impossible to resolve the disagreement, it must be terminated. The grounds for terminating the contract may be the agreement of the parties (see article 78 of the Labor Code and commentary thereto) or, if the employment contract is terminated at the request of the employee, the employee's initiative (see article 80 of the Labor Code and commentary thereto).

A similar approach should be applied to those terms of the employment contract that the Labor Code defines as additional.

5. Additional (optional) terms of the employment contract are established at the initiative of the parties (employee or employer). Their absence in the text of the contract does not call into question the employment contract itself - it will be valid without additional conditions. However, if the interested party insists on the inclusion of a particular condition in the contract, it must be established, otherwise the employment contract cannot be considered concluded.

Additional (optional) terms of the employment contract are the terms of the test, the non-disclosure of legally protected secrets (state, official, commercial and other), the obligation of the employee to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer, as well as other conditions.

On the test when applying for a job, see Art. Art. 70, 71 TC and comments to them.

6. Non-disclosure of legally protected secrets (state, official, commercial and other) is considered by the Labor Code to be among the optional terms of the employment contract.

State secret - information protected by the state in the field of its military, foreign policy, economic, intelligence, counterintelligence and operational-search activities, the dissemination of which may harm the security of the country. The list of information constituting a state secret is a set of categories of information, according to which information is classified as a state secret and classified on the grounds and in the manner established by federal law (Article 2 of the Law of the Russian Federation of July 21, 1993 N 5485-1 " On State Secrets). The list of information constituting a state secret is contained in Art. 5 of the mentioned Law, as well as in Decree of the President of the Russian Federation of November 30, 1995 N 1203 "On approval of the List of information classified as state secrets."

The conclusion of an employment contract for work in this field is possible subject to the admission of the relevant person to state secrets. The procedure for admitting officials and citizens to state secrets is determined by Art. 21 of the Law of the Russian Federation "On State Secrets" and by-laws (see Article 65 of the Labor Code and commentary thereto). The mutual obligations of the employer and the person being registered for work are reflected in the employment contract, the conclusion of which is not allowed until the end of the relevant verification by the competent authorities.

A commercial or official secret is a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits (clause 1, article 3 of the Federal Law of July 29 2004 N 98-FZ "On Trade Secrets").

Thus, a commercial or official secret has three features: 1) the information that constitutes it is not known to third parties; 2) this information is closed from free access to it; 3) the owner of the information ensures its protection from access by third parties.

The question of the commercial value of information, as well as the degree of its popularity for third parties, is decided by the owner of the information. As for the other two signs of a commercial (official) secret, they should be legally formalized. First of all, the circle of information that does not constitute a commercial (official) secret is determined. Information that cannot constitute an official or commercial secret shall be determined by law and other legal acts.

Thus, the Federal Law of April 22, 1996 N 39-FZ "On the Securities Market" in Ch. 7 determines the procedure and generally mandatory forms of disclosure of information about securities.

The list of information in respect of which a trade secret regime cannot be established is established by Art. 5 of the Federal Law "On Trade Secrets".

The annual financial statements of the organization, with the exception of indicators classified as state secrets under the laws of the Russian Federation, are open to interested users: banks, investors, creditors, buyers, suppliers, etc., who can familiarize themselves with the annual financial statements and receive copies of them with reimbursement of costs for copying. Moreover, the organization must provide an opportunity for interested users to familiarize themselves with the financial statements, and in cases provided for by the legislation of the Russian Federation, the organization publishes the financial statements and the final part of the audit report (clauses 89, 90 of the Regulations on Accounting and Accounting in the Russian Federation, approved by the Order of the Ministry of Finance of the Russian Federation of July 29, 1998 N 34n).

Along with the formulation of the range of information that does not constitute a commercial (official) secret, the legislation defines the signs of information that is confidential and not subject to disclosure. Information of this kind is defined by Decree of the President of the Russian Federation of March 6, 1997 N 188 "On Approval of the List of Confidential Information".

Characterizing certain information from the point of view of their confidentiality, three groups of information can be distinguished: 1) which, in accordance with the law, cannot be confidential (closed for access to third parties); 2) which is confidential by virtue of a direct indication of the regulatory legal act of the state or the prescription of its competent official; 3) which is recognized as not subject to publicity by its owner - a private individual or legal entity.

The obligation to ensure the confidentiality of information relating to the second group is assigned to the relevant person by a direct order of a regulatory legal act or an official of the state. So, the information that became known to the employee of the civil registry office in connection with state registration act of civil status, including personal data, is information, access to which is limited in accordance with federal laws, and is not subject to disclosure (Article 12 of the Federal Law of November 15, 1997 N 143-FZ "On acts of civil status") .

Information about the fact that a citizen applied for medical care, his state of health and diagnosis, other information obtained during his medical examination and treatment constitutes a medical secret (Article 13 of the Federal Law of November 21, 2011 N 323-FZ "On the Basics of Protection health of citizens in the Russian Federation). It is not allowed to disclose information constituting a medical secret, including after the death of a person, by persons to whom they became known during training, performance of labor, official, official and other duties, except as otherwise established by law.

The employer is obliged to familiarize the employee with the range of information that, by virtue of the law and the specifics of the labor function performed by the employee, are not subject to disclosure. The obligation of the employee not to disclose this information is included in the employment contract as an essential condition.

With regard to information related to the third group, the employer must determine the range of relevant information in the manner of local rule-making (in job description or in a special position). It is advisable to establish in the local regulatory act the categories of employees, the degree and procedure for their access to information constituting a commercial (official) secret, as well as the types of persons and organizations, at the request of which all or part of confidential information can be transferred to them. Information about the familiarization of the employee with the relevant local act and his obligation to ensure the confidentiality of information are entered into the employment contract as an essential condition.

It is advisable to carry out such measures when organizing work with the employee's personal data (see Chapter 14 of the Labor Code and commentary thereto). If the information is personalized, i.e. is directly related to the personality of the employee, then the data about it and the obligation of the employee to refrain from disclosing it are fixed in the employment contract.

As follows from Art. Art. 10, 11 of the Federal Law "On Trade Secrets", measures to protect the confidentiality of information taken by its owner should include: 1) determining the list of information constituting a trade secret; 2) restriction of access to information constituting a commercial secret by establishing a procedure for handling this information and monitoring compliance with such procedure; 3) registration of persons who have gained access to information constituting a commercial secret, and (or) persons to whom such information has been provided or transferred; 4) regulation of relations on the use of information constituting a commercial secret by employees on the basis of employment contracts and contractors on the basis of civil law contracts; 5) putting on material media containing information constituting a trade secret, or including in the details of documents containing such information, the stamp "trade secret" indicating the owner of such information (for legal entities - full name and location, for individual entrepreneurs - surname, name, patronymic of a citizen who is an individual entrepreneur, and place of residence).

The trade secret regime is considered to be established after the owner of the information constituting a trade secret takes the indicated measures.

Measures to protect the confidentiality of information are recognized as reasonably sufficient in the following cases: a) exclusion of access to information constituting a commercial secret by any person without the consent of its owner; b) ensuring the possibility of using information constituting a trade secret by employees and transferring it to counterparties without violating the trade secret regime.

In order to protect the confidentiality of information, the employer is obliged: a) to familiarize the employee, whose access to information constituting a commercial secret, is necessary for the performance of his labor duties, with a list of information constituting a commercial secret, the owners of which are the employer and his counterparties; b) familiarize the employee against the receipt of the trade secret regime established by the employer and with the measures of responsibility for its violation; c) create the necessary conditions for the employee to comply with the trade secret regime established by the employer.

An employee's access to information constituting a commercial secret is carried out with his consent, unless this is provided for by his labor duties.

In order to protect the confidentiality of information, the employee is obliged: a) to comply with the trade secret regime established by the employer; b) not to disclose information constituting a commercial secret owned by the employer and his contractors, and without their consent not to use this information for personal purposes; c) transfer to the employer, upon termination or termination of the employment contract, material media of information available to the employee that contain information constituting a commercial secret, or destroy such information or delete it from these material media under the control of the employer.

7. On the obligation of the employee to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer, as an optional condition of the employment contract, see Art. Art. 207, 249 of the Labor Code and comments to them.

8. The parties may agree on the implementation by the employer in favor of the employee of additional payments or on the provision of benefits social character. In particular, the parties may establish as a condition of the employment contract an agreement regarding additional insurance for the employee. The essence of this agreement is that the employer assumes the obligation to insure the employee on the terms offered by a particular insurance organization, or to provide additional insurance to the employee on the terms developed by the parties to the employment contract. In the same row there is a condition on additional non-state pension provision for an employee.

9. The list of additional (optional) terms of the employment contract contained in Art. 57 TC is not exhaustive. When concluding an employment contract, the parties have the right to agree on any other conditions that can both specify the content of the employment relationship and relate to other aspects of the relationship between the parties. For example, the parties may stipulate the use by the employee of his tool in the course of labor activity, the procedure for the provision by the employer of services for the delivery of the employee to the place of work and back, household and socio-cultural services for the employee and his family members at the expense of the employer.

At the same time, there are restrictions regarding the scope of additional (optional) conditions and their content, namely:

a) it is unacceptable in an employment contract to establish conditions related to the restriction of the rights and freedoms of an employee as a person and citizen. By virtue of Art. 17 of the Constitution of the Russian Federation, fundamental human rights and freedoms are inalienable and belong to everyone from birth, therefore their content cannot be the subject of any contract, including labor.

Society guarantees everyone freedom of conscience, religion, including the right to profess individually or jointly with others any religion or not to profess any, freely choose, have and disseminate religious and other beliefs and act in accordance with them (Article 28 of the Constitution of the Russian Federation). Consequently, the employment contract cannot include conditions related to the employee's refusal of a certain religion, transition to another confession, etc. An exception is an employment contract concluded with religious organization(see Chapter 54 of the Labor Code and commentary to it).

By virtue of Art. 30 of the Constitution of the Russian Federation, everyone has the right to association, including the right to create trade unions to protect their interests. The freedom of activity of public associations is guaranteed. Accordingly, the terms of the employment contract providing for the refusal of membership in trade union or, on the contrary, obligatory membership in any trade union. On the same grounds (Article 29 of the Constitution of the Russian Federation), conditions on refusal of membership in a certain political party or on membership in a certain party cannot be established in an employment contract.

The constitutional right of everyone to education (Article 43 of the Constitution of the Russian Federation) excludes the possibility of fixing in an employment contract a condition for refusing to study in an educational organization. At the same time, the condition of the employment contract, which provides for the obligation to receive education necessary to improve the qualifications of an employee, cannot be recognized as inconsistent with the Constitution.

Finally, the general constitutional principle of individual freedom, which implies freedom of disposal of oneself and is embodied in a number of articles of the Constitution of the Russian Federation, determines the unconstitutionality of the terms of an employment contract, which implies a permanent or for a certain time refusal to marry, have children, and perform other family functions;

b) it is unacceptable in an employment contract to establish conditions related to the restriction of the civil legal personality of individuals (both the employee and the employer). Transactions aimed at limiting the legal capacity or legal capacity are void, except in cases where such transactions are permitted by law (Article 22 of the Civil Code);

c) the terms of an employment contract that change the norms of legislation that are mandatory (mandatory) are not recognized as legal. For example, it is impossible to change the procedure for considering individual labor disputes by contract, since this procedure is imperatively regulated by law; it is impossible to include in the contract conditions on non-disclosure of information that does not constitute a commercial or official secret;

d) it is unacceptable to establish conditions in an employment contract, the implementation of which is associated with the obligation of third parties, i.e. persons who are not parties to the contract. At the same time, the conclusion of an employment contract may be accompanied by the conclusion of other agreements that do not contradict the law, including other industry affiliations, with the participation of the parties to the employment contract and third parties, assuming the imposition of obligations on their parties in connection with the concluded employment contract;

e) the employment contract does not include conditions that worsen the position of the employee in comparison with those established by the collective agreement (agreement) or labor legislation (Articles 9, 57 of the Labor Code).

The listed conditions of the employment contract are invalid (void).

10. A number of circumstances that are defined as mandatory or additional conditions of an employment contract, depending on their legal nature, may be classified as essential conditions of an employment contract, but may not be them, acting as the so-called ordinary conditions of an employment contract or being generally outside the agreement of the parties.

For example, compensation for hard work and work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, as well as the characteristics of working conditions at the workplace can be determined state standards or collective agreements (agreements) and, therefore, not being the product of direct negotiations between the parties, cannot be classified as mandatory (essential) terms of an employment contract. However, given that they can be changed by agreement of the parties, these conditions can be considered the usual terms of an employment contract. The meaning of the latter lies in the fact that the parties reach agreement on them by default. It is enough to familiarize the employee with them, about which a corresponding entry is made in the employment contract.

At the same time, situations are possible when there are no general standards or the work of this employee is used in exceptional conditions that impose special requirements on the protection of his health. There is a need to individualize the characteristics of working conditions, as well as the types and amounts of compensation and benefits to employees for working in difficult, harmful and (or) dangerous conditions, which should be done within the framework of an employment contract. In this case, these conditions are modified as essential (random) conditions of the employment contract.

A similar assessment can be given to other conditions arising from labor legislation, a collective agreement (agreement), local regulatory legal acts.

A significant part of the norms of labor legislation is imperative and dispositive in nature. The legal nature of these norms lies in the impossibility of worsening the position of the employee with respect to established by law, but in the admissibility of improving this situation. Consequently, the parties can either agree that they are subject to the current labor laws, or establish other rules that are more favorable to the worker. In the first case, the terms of the agreement of the parties, arising from the norms of labor legislation, can be recognized as the usual terms of an employment contract; in the second case, the usual conditions are modified by the parties into essential (random) terms of the employment contract. It is precisely such conditions that are the rights and obligations of the employee and the employer, specified "in relation to the working conditions of this employee", established by labor legislation and other regulatory legal acts containing labor law norms.

11. All of the above conditions are the terms of the employment contract as a contract, i.e. the result of a direct or indirect expression of the will of the parties or one party agreed with the other party. However, Art. 57 of the Labor Code highlights in the content of the employment contract conditions that, from this point of view, are not contractual, since their content does not depend on the will of the parties.

Such conditions include the types and conditions of social insurance directly related to labor activity. However, as you know, the types and conditions of social insurance are determined by the state exclusively in a regulatory manner, thereby being beyond the discretion of the parties to the employment contract. Being a non-contractual condition, the employee's social insurance cannot be an element of the content of an employment contract. The inclusion of provisions on the employee's social insurance in the employment contract, apparently, aims to inform the employee about the content of the relevant legislation. Such information is possible in two ways.

In the first case, a clause is introduced into the text of the contract, the wording of which may sound like this: "Types and conditions of social insurance - in accordance with applicable law."

In the second option, the employee is introduced to the provisions of the legislation on the types and conditions of social insurance directly related to labor activity, about which an appropriate entry is made in the employment contract. This option is more acceptable.

The same approach has to be taken when assessing the rights and obligations of the parties arising from imperative norms formulated by labor legislation and other regulatory legal acts containing labor law norms (part 5 of the commented article). The imperative nature of these norms means that their content cannot in principle be changed by agreement of the parties, moreover, if such changes are made, they cannot be recognized as valid. Thus, the rights and obligations of the parties arising from the imperative norms of the law are of a non-contractual nature, which means that they cannot constitute the content of an employment contract as an agreement of the parties. Entering them, as well as data on the conditions of compulsory social insurance of an employee, into the text of an employment contract as a written document pursues an exclusively informational task. Therefore, these and other similar circumstances should not be classified as the terms of an employment contract, but as information. Their absence in the text of the contract does not relieve the parties from the implementation of the relevant non-contractual rights and obligations.

Consultations and comments of lawyers on Article 57 of the Labor Code of the Russian Federation

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Commentary on Art. 57 of the Labor Code of the Russian Federation

Second commentary on Article 57 of the Labor Code

System and Observer

Section III. LABOR CONTRACT

Chapter 10. GENERAL PROVISIONS

Article 56. The concept of an employment contract. Parties to the employment contract

Article 57. Content of an employment contract

Article 58. Term of an employment contract

Article 59. Fixed-term employment contract

Article 60

Article 60.1. Part-time work

Article 60.2. Combination of professions (positions). Expansion of service areas, increase in the volume of work. Fulfillment of the duties of a temporarily absent employee without release from work specified in the employment contract

Article 61. Entry into force of an employment contract

Article 62. Issuance of copies of documents related to work

Chapter 11. CONCLUSION OF AN EMPLOYMENT CONTRACT

Article 63. Age from which the conclusion of an employment contract is allowed

Article 64. Guarantees when concluding an employment contract

Article Article 64-1. Conditions for concluding an employment contract with former state and municipal employees

Article 65. Documents presented at the conclusion of an employment contract

Article 66

Article 67. Form of an employment contract

Article 67.1. The consequences of the actual admission to work by an unauthorized person

Article 68

Article 69

Article 70

Article 71

Chapter 12. AMENDMENT OF AN EMPLOYMENT CONTRACT

Article 72

Article 72.1. Transfer to another job. moving

Article 72.2. Temporary transfer to another job

Article 73. Transfer of an employee to another job in accordance with a medical report

Article 74

Article 75

Article 76. Suspension from work

Chapter 13. TERMINATION OF AN EMPLOYMENT CONTRACT

Article 77. General grounds for termination of an employment contract

Commentary on Article 57 of the Labor Code of the Russian Federation

Another commentary on Art. 57 of the Labor Code of the Russian Federation

Consultations and comments of lawyers on Article 57 of the Labor Code of the Russian Federation

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