Labor Code, N 197-FZ | Art. 59 Labor Code of the Russian Federation

Article 59 of the Labor Code of the Russian Federation. Urgent labor contract(current edition)

A fixed-term employment contract is:

for the period of performance of the duties of an absent employee, for whom, in accordance with labor law and other normative legal acts containing norms labor law, collective agreement, agreements, local regulations, employment contract retains the place of work;

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

to perform seasonal work, when due to natural conditions work can be done only 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 the practice, vocational training or optional vocational education in the form of an internship;

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

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

with citizens sent for alternative civilian service;

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

with persons 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 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 accordance with the procedure established by federal laws and other regulatory legal acts Russian Federation, only temporary work is allowed;

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, 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 media workers mass 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 employees, approved by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commissions for the regulation of social and labor relations;

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

with persons receiving full-time education;

with crew members of seagoing vessels, inland navigation vessels and mixed (river - sea) navigation vessels registered in the Russian International Register of Vessels;

with persons entering a part-time job;

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

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Commentary on Art. 59 Labor Code of the Russian Federation

1. Article 59 contains two parts, each of which provides for different types of work (cases), for the performance of which a fixed-term employment contract is concluded with an employee.

Lists of works (cases) provided for in both Part 1 and Part 2 of Art. 59 are not exhaustive. Labor Code or other federal laws may also provide for other cases where the conclusion of a fixed-term employment contract is either mandatory by law or is allowed by agreement of the parties to the employment contract. Because in Art. 59 we are talking about the Labor Code or another federal law, neither the law of the subject of the Russian Federation, nor the decree of the President of the Russian Federation, nor the decree of the Government of the Russian Federation, nor any other subordinate regulatory legal act can establish any additional grounds (cases) for concluding a fixed-term employment contract.

2. Cases (types of work) listed in Part 1 of Art. 59, meet the general criterion for concluding a fixed-term employment contract, formulated in Part 2 of Art. 58 TC, i.e. all the cases listed in it determine the urgent nature of the labor connection.

Thus, the conclusion of a fixed-term employment contract in those listed in Part 1 of Art. 59 cases due to the very nature of the work or the conditions of its implementation, and therefore is mandatory.

Part 1 Art. 59 names 11 specific cases when a fixed-term employment contract is concluded with an employee:

1) for the period of performance of the duties of a temporarily absent employee. Such an employment contract is concluded when, 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 example, while the employee is on a long business trip , on maternity leave). The term of the employment contract in this case is made dependent on the time of the return of the absent employee to the performance of his labor (service) duties. Since the law speaks of the temporary absence of an employee who retains his/her place of work (position), a fixed-term employment contract cannot be concluded to perform duties for vacant position before accepting another permanent employee for this position;

2) to perform temporary (up to two months) work, as well as seasonal work, when, due to natural conditions, work can only be carried out for a certain period (season), which, as a rule, does not exceed six months (see comments to Art. 293).

The conclusion of a fixed-term employment contract for a period of up to two months is possible provided that the work is obviously temporary in nature, i.e. it is known in advance that it will last no more than two months (for example, during the preparation of the annual report). At the same time, in the contract, by agreement of the parties, a specific term of the employment contract must be determined within two months (three weeks, one month, 1.5 months, etc.).

It will be unlawful to conclude a fixed-term employment contract for a period of up to two months to perform work that is permanent for the employer.

The conclusion of a fixed-term employment contract for the performance of seasonal work is allowed provided that these works are provided for by a special list of seasonal work. Lists of seasonal work, incl. certain seasonal works, which can be carried out during a period (season) exceeding six months, and the maximum duration of these separate seasonal works are determined by sectoral (intersectoral) agreements concluded at the federal level social partnership. For example, in accordance with the Industry Agreement on organizations of the timber industry complex of the Russian Federation for 2012-2014, seasonal work in the timber industry is recognized as:

Timber industry (extraction of resin, barras, stump resin and spruce sulfur);

Timber rafting (discharging timber into the water, primary and raft timber rafting, sorting on the water, rafting and rolling out timber from the water, loading (unloading) timber onto ships (see comments to Article 293).

The conclusion of a fixed-term employment contract for a certain season to perform work not covered by a special list will be considered illegal;

3) with persons sent to work abroad. It does not matter to which organization abroad the employee is sent. These can be diplomatic missions and consular offices of the Russian Federation abroad, as well as representative offices of federal executive authorities and public institutions RF, commercial organizations, scientific and educational institutions, etc. For example, in accordance with Art. 338 of the Labor Code with an employee sent to work in a representative office of the Russian Federation abroad, an employment contract is concluded for a period of up to three years (see comments to article 338);

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

Decision of the Supreme Court: Ruling N 303-KG17-7182, Judicial Collegium for Economic Disputes, cassation

After examining and evaluating the evidence presented in their totality and interconnection, guided by the provisions of Articles 15, 16, 56, 58, 59 of the Labor Code of the Russian Federation, Articles 420, 421, 702, 779 Civil Code of the Russian Federation, Articles 5, 7, 8, 9 of Federal Law No. 212-FZ dated July 24, 2009 "On insurance contributions to the Pension Fund of the Russian Federation ...

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1. Article 59 of the Labor Code of the Russian Federation contains two parts, each of which provides for different types of work (cases), for the performance of which a fixed-term employment contract is concluded with an employee.

The lists of works (cases) provided for in both Part 1 and Part 2 are not exhaustive. The Labor Code or other federal laws may also provide for other cases where the conclusion of a fixed-term employment contract is either mandatory by law or is allowed by agreement of the parties to the employment contract. Since the article refers to the Labor Code or other federal law, neither the law of the subject of the Russian Federation, nor the decree of the President of the Russian Federation, nor the decree of the Government of the Russian Federation, nor any other subordinate regulatory legal act can establish any additional grounds (cases) for concluding a fixed-term employment contract .

2. Cases (types of work) listed in Part 1 of Art. 59 of the Labor Code of the Russian Federation, meet the general criterion for concluding a fixed-term employment contract, formulated in Part 2 of Art. 58 TK. That is, all the cases listed in it determine the urgent nature of the labor connection.

Thus, the conclusion of a fixed-term employment contract in the cases listed in paragraph 1 of this article is due to the very nature of the work or the conditions for its implementation, and therefore is mandatory.

Part 1 Art. 59 of the Labor Code of the Russian Federation names 11 specific cases when a fixed-term employment contract is concluded with an employee:

• 1) for the period of performance of the duties of a temporarily absent employee. Such an employment contract is concluded when, 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 example, while the employee is on a long business trip , on maternity leave). The term of the employment contract in this case is made dependent on the time of the return of the absent employee to the performance of his labor (service) duties. Since the law speaks of the temporary absence of an employee who retains a job (position), a fixed-term employment contract cannot be concluded to perform duties in a vacant position until another permanent employee is hired for this position;

2) to perform temporary (up to 2 months) work, as well as seasonal work, when, due to natural conditions, work can be done only for a certain period (season), usually not exceeding 6 months (see comments to Art. 293).

The conclusion of a fixed-term employment contract for a period of up to 2 months is possible provided that the work is obviously temporary in nature, i.e. it is known in advance that it will last no more than 2 months (for example, during the preparation of the annual report). At the same time, in the contract, by agreement of the parties, a specific term of the employment contract must be determined within 2 months (3 weeks, 1 month, 1.5 months, etc.).

It will be illegal to conclude a fixed-term employment contract for up to 2 months to perform work that is permanent for the employer.

The conclusion of a fixed-term employment contract for the performance of seasonal work is allowed provided that these works are provided for by a special list of seasonal work. Lists of seasonal work, incl. certain seasonal works, which can be carried out during a period (season) exceeding 6 months, and the maximum duration of these separate seasonal works are determined by sectoral (intersectoral) agreements concluded at the federal level of social partnership (part 2 of article 293, see comment. To her).

The conclusion of a fixed-term employment contract for a certain season to perform work not covered by the named list will be considered illegal;

• 3) with persons sent to work abroad. It does not matter to which organization abroad the employee is sent. These can be diplomatic missions and consular offices of the Russian Federation abroad, as well as representative offices of federal executive authorities and state institutions of the Russian Federation, commercial organizations, scientific and educational institutions, etc.;

4) for carrying out work that goes beyond the normal activities of the employer, as well as for carrying out work related to a deliberately temporary (up to 1 year) expansion of production or the volume of services provided.

In this case, the usual activities of the employer should be understood as such types of work that correspond to the main activities of the organization, enshrined in its charter.

As an example of work that goes beyond the normal activities of the organization, the law calls the reconstruction, installation, commissioning. Depending on the nature (type) of the ordinary activities of the organization, this may be other work, for example, repair, construction. However, in all cases, work that goes beyond the normal (main) activities of the organization, for the performance of which fixed-term employment contracts may be concluded, must be of a temporary (urgent) nature. Since the law does not establish any special deadline for which such an employment contract can be concluded, the term of the employment contract is determined in each specific case by agreement of the parties based on the specific circumstances and the period of time during which there remains a need to perform work outgoing outside the ordinary activities of the organization. Here, the general rules on the deadline for the employment contract, established by Art. 58 TC, i.e. 5 years.

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

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

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

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

The term of an employment contract with persons entering organizations created for a known period of time or to perform a known work is determined by the period for which such an organization was created. Therefore, the termination of the employment contract with the specified employees on the basis of the expiration of the term of the employment contract can be carried out if this organization really ceases to operate due to the expiration of the period for which it was created, or the achievement of the goal for which it was created, without transfer of rights and obligations. in the order of succession to other persons (clause 14 of the Decree of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 N 2);

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

In these cases, the employment contract with the employees must indicate that it is concluded for the duration of this particular work (for example, during the repair of an office, during the construction of an object). ending (end) said work will be the basis for termination of the employment contract due to the expiration of its validity. At the same time, it should be borne in mind that if during the trial the fact of multiple conclusion of fixed-term employment contracts for a short period of time to perform the same labor function is established, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period ( paragraph 14 of the Decree of the Plenum of the RF Armed Forces dated March 17, 2004 N 2);

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

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

• 8) in case of election for a certain period to an elected body or to an elective position for a paid job. For example, for the position of rector of a state or municipal higher educational institution, dean of the faculty or head of the department of a higher educational institution. According to Art. 12 of the Law on Vocational Education, art. 332 of the Labor Code, these positions are filled on the basis of elections held in the manner prescribed by the charter of the educational institution (see Art. 17, 332 of the Labor Code);

9) upon admission to work related to the direct support of the activities of members of elected bodies or officials in state authorities and local governments, in political parties and other public associations. In this case, we are talking about work related to the direct support of the activities of members of these bodies or officials. This means that not all persons applying for work in these elected bodies can be concluded a fixed-term employment contract. We are talking about contracts concluded for the performance of such work, which is directly aimed at ensuring the activities of members of the relevant elected bodies or officials (for example, work as an assistant, secretary, adviser to the governor; assistant, assistant to the chairman of the party).

The term of the employment contract in these cases is established by agreement of the parties within the term of office of the relevant elected body or official.

Early termination of the powers of certain bodies or officials should also entail the termination of employment contracts with persons hired to ensure this activity;

10) with persons sent by the bodies of the employment service to work of a temporary nature and public works. Such works are organized as additional social support for citizens, job seekers. The term of the employment contract for the performance of such work is determined by agreement of the parties.

If the work to which the citizen is sent by the employment service body is of a permanent nature, the conclusion of a fixed-term employment contract with him is not allowed;

• 11) with citizens sent for alternative civilian service. When concluding an employment contract with this category of citizens, it should be borne in mind that the status of citizens undergoing alternative civilian service is established by the Federal Law of July 25, 2002 N 113-FZ "On Alternative Civil Service" (SZ RF. 2002. N 30. Article 3030) in accordance with the Constitution of the Russian Federation. Alternative civilian service is a special type of labor activity in the interests of society and the state, carried out by citizens in return for conscription military service. The procedure for sending citizens to alternative civilian service is determined by the named Law, other federal laws, the Regulations on the procedure for performing alternative civilian service, approved. Decree of the Government of the Russian Federation of May 28, 2004 N 256 (SZ RF. 2004. N 23. Art. 2309), and other regulatory legal acts of the Russian Federation adopted in accordance with them.

The labor activity of citizens undergoing alternative civilian service is regulated by the Labor Code, taking into account the specifics provided for by the said Federal Law.

In accordance with Art. 5 of this Law, the term of alternative civilian service is 1.75 times higher than that established by the Law on military service the term of military service and is for citizens sent for its passage after January 1, 2008, 21 months. The term of alternative civilian service for citizens undergoing this service in organizations of the Armed Forces of the Russian Federation, other troops, military formations and bodies is 1.5 times higher than the term of military service on conscription established by the Law on Military Duty and is 18 months for citizens sent for its passing after January 1, 2008.

In accordance with the specified terms, the term of the employment contract with citizens sent for alternative civilian service is also determined. When concluding an employment contract, the parties are not entitled to establish a different period of its validity.

3. Unlike part 1 of the commented article, in accordance with which the conclusion of an employment contract for a certain period is mandatory due to the nature of the work to be done or the conditions for its implementation, part 2 of the article provides a list of cases when the conclusion of a fixed-term employment contract is allowed by agreement of the parties . Moreover, by agreement of the parties, a fixed-term employment contract in the cases listed in Part 2 of Article 59 of the Labor Code of the Russian Federation can be concluded without taking into account the nature of the work to be done or the conditions for its implementation. At the same time, it must be borne in mind that such an agreement can be recognized as lawful if there was an agreement between the parties, i.e. if it is concluded on the basis of the voluntary consent of the employee and the employer. If the court, when resolving a dispute on the legality of concluding a fixed-term employment contract, establishes that it was concluded by the employee involuntarily, the court applies the rules of the contract concluded for an indefinite period (clause 13 of the Decree of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).

According to part 2 of the commented article, by agreement of the parties, a fixed-term employment contract can be concluded:

1) with persons entering 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).

The concept and types of small businesses are defined by the Federal Law of July 24, 2007 N 209-FZ "On the development of small and medium-sized businesses in the Russian Federation" (SZ RF. 2007. N 31. Art. 4006). In accordance with Art. 3 subjects of small and medium-sized businesses - economic entities (legal entities and individual entrepreneurs), classified in accordance with the conditions established by this Federal Law, to small enterprises, incl. to micro and medium enterprises.

According to Art. 4 Small and medium-sized businesses include those entered in the Unified State Register of Legal Entities consumer cooperatives and commercial organizations (with the exception of state and municipal unitary enterprises), as well as individuals, entered in the Unified State Register of Individual Entrepreneurs and carrying out entrepreneurial activity without forming a legal entity (hereinafter referred to as individual entrepreneurs), peasant (farm) enterprises that meet the following conditions:

• for legal entities - the total share of participation of the Russian Federation, constituent entities of the Russian Federation, municipalities, foreign legal entities, foreign citizens, public and religious organizations(associations), charitable and other funds in the authorized (share) capital (share fund) of these legal entities should not exceed 25% (except for the assets of joint-stock investment funds and closed-end investment funds), the share of participation belonging to one or more legal entities, which are not subjects of small and medium-sized businesses, should not exceed 25%;
• the average number of employees for the previous calendar year must not exceed the following limits average population employees for each category of small and medium-sized businesses:
  • a) from 101 to 250 people inclusive for medium-sized enterprises;
  • b) up to 100 people inclusive for small businesses; among small enterprises, micro-enterprises stand out - up to 15 people;
• proceeds from the sale of goods (works, services) excluding value added tax or the book value of assets (residual value of fixed assets and intangible assets) for the previous calendar year should not exceed the limit values ​​established by the Government of the Russian Federation for each category of small and medium-sized businesses.

Newly created organizations or newly registered individual entrepreneurs and peasant (farm) enterprises during the year in which they are registered can be classified as small and medium-sized businesses if their indicators of the average number of employees, proceeds from the sale of goods (works, services) or book value of assets (residual value of fixed assets and intangible assets) for the period elapsed from the date of their state registration, do not exceed the limit values ​​established by the named article.

The average number of employees of a micro-enterprise, small enterprise or medium-sized enterprise for a calendar year is determined taking into account all its employees, incl. employees working under civil law contracts or part-time jobs, taking into account the actual hours worked, employees of representative offices, branches and other separate divisions of the specified micro-enterprise, small enterprise or medium-sized enterprise;

2) 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.

It is necessary to pay attention to what the law says about old-age pensioners entering work, i.e. about those who for the first time or again (after dismissal) conclude an employment contract with this employer. In this regard, the employer is not entitled, incl. and with the consent of the employee who is in an employment relationship with him and has reached retirement age, renegotiate the employment contract concluded with this employee for an indefinite period, for a fixed-term employment contract. At the same time, it should be borne in mind that the number of pensioners by age includes persons who have reached retirement age and who, in accordance with pension legislation, have been assigned an old-age pension. If a citizen has reached the age required for the appointment of a pension, but in accordance with the pension legislation has not acquired the right to it or the pension has not been assigned to him due to some other circumstances, he cannot be considered a pensioner and, therefore, the rules for concluding a fixed-term employment contract provided for in the commented norm should not apply to him.

The fact that an employee, for health reasons, can perform work of an exclusively temporary nature must be established by a medical report. A medical opinion of this kind has the right to issue only the body or institution to which such a right has been granted (for example, institutions of medical and social expertise).

The term of the employment contract is determined in this case based on the duration that, according to the medical report, is allowed for this employee in accordance with his state of health. The employer does not have the right, at its discretion, to establish for the employee the term of the employment contract of a longer or shorter duration than that prescribed by the medical report;

3) 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. Since the law connects the possibility of concluding a fixed-term employment contract with these persons with their moving to the place of work in organizations located in the regions of the Far North and equivalent areas, then this rule should not apply to citizens permanently residing in these areas and localities. A fixed-term employment contract is concluded with them on the grounds specified in Part 1 of Art. 59 of the Labor Code of the Russian Federation, by agreement of the parties in the cases specified in Part 2 of the same article (for example, when applying for a part-time job), as well as in other cases provided for by the Labor Code or other federal laws.

The list of regions of the Far North and areas equated to them was approved by the Decree of the Council of Ministers of the USSR of November 10, 1967 N 1029 (SP USSR. 1967. N 29. Art. 203) and is valid today as amended. Decrees of the Council of Ministers of the USSR of January 3, 1983 N 12 (SP USSR. 1983. N 5. Art. 21) with additions and changes introduced by the legislation of the Russian Federation;

• 4) to carry out urgent work to prevent catastrophes, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances (for example, to eliminate the consequences of floods, fires). Since the law does not establish a minimum or maximum period for which an employment contract can be concluded under the specified circumstances, it is determined by agreement of the parties. If the term of the employment contract does not exceed 2 months, the labor relations that have arisen are regulated taking into account the features established by Ch. 45 of the Labor Code (see comments to Art. Art. 289 - 292);
• 5) with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works in accordance with the lists of works, professions, positions of these workers, approved by the Government Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations. Decree of the Government of the Russian Federation of April 28, 2007 N 252 approved the List of professions and positions of creative workers in the media, cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, the features of the labor activity of which are established by the Labor Code of the Russian Federation;

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

The validity of the employment contract with the head of the organization in accordance with Part 1 of Art. 275 of the Labor Code is determined by the constituent documents of the organization or by agreement of the parties. That is, by agreement of the parties, the term of the employment contract with the head of the organization is determined if it is not established by the constituent documents of the organization;

• 7) with persons studying full-time education;
• 8) with persons entering a part-time job (on the procedure and conditions for concluding an employment contract for part-time work, see the comments to Articles 282-288).

4. In addition to the cases expressly provided for in part 2 of article 59 of the Labor Code of the Russian Federation, the conclusion of a fixed-term employment contract by agreement of the parties is also allowed in other cases provided for by the Labor Code or other federal law. So, in accordance with Art. 332 of the Labor Code, by agreement of the parties, fixed-term employment contracts may be concluded for filling the positions of scientific and pedagogical workers in a higher educational institution.

5. In accordance with the general rules for concluding a fixed-term employment contract, established by Art. 58 of the Labor Code, a fixed-term employment contract can be concluded either in cases where labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation, or by agreement of the parties without taking into account the named circumstances in cases provided for by the Labor Code or other federal by law (part 2 of article 59 of the Labor Code of the Russian Federation). However, in some cases, the Labor Code provides for the conclusion of a fixed-term employment contract without taking into account these general rules. So, according to part 14 of Art. 332 of the Labor Code, a fixed-term employment contract is concluded with vice-rectors of a higher educational institution. The said norm is stated in an imperative form, therefore, the conclusion of a fixed-term employment contract with the specified employees is mandatory by virtue of the direct prescription of the law. However, neither by its nature nor by the conditions of performance, work as a vice-rector of a higher educational institution is a job for which it is impossible to conclude an employment contract for an indefinite period. Thus, by providing for the obligatory conclusion of a fixed-term employment contract with vice-rectors of a higher educational institution, the legislator has shown a clear inconsistency in regulating the relations in question (see comments to Article 332).

Official text:

Article 59. Fixed-term employment contract

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;

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, 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;

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

with persons receiving full-time education;

with crew members of seagoing vessels, inland navigation vessels and mixed (river - sea) navigation vessels registered in the Russian International Register of Vessels;

with persons entering a part-time job;

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

Lawyer's comment:

In the previous wording of Article 59, in one row, cases were listed when a fixed-term employment contract must be concluded either due to objective obligations or due to the requirements of the law, as well as cases when a fixed-term employment contract can be concluded at the initiative of one of the parties. The new edition of this article divides these cases into two independent groups. Part 1 of Article 59 lists cases when the conclusion of a fixed-term employment contract is mandatory, since the employment contracts listed in this part of the article cannot be otherwise (as soon as urgent). A fixed-term employment contract is concluded for the duration of the performance of the duties of an absent employee. Such an agreement is concluded when a job is retained for an absent employee (for example, while the employee is on parental leave or while the employee is on a long business trip, as well as in other cases provided for by labor legislation). The term of the employment contract in these cases is determined by the time of absence of the employee, who, according to the law, retains the place of work. The return date of the absent worker is the end date of the fixed-term employment contract.

A fixed-term employment contract is concluded for the duration of temporary (up to two months) work. The conclusion of such an agreement is possible provided that the work is obviously temporary in nature and cannot exceed a two-month period. The specific term of the contract in this case is established by agreement of the parties. If the work is permanent, then the conclusion of a fixed-term employment contract for a period of up to two months is illegal. For the performance of seasonal work, a fixed-term employment contract is also concluded. Seasonal work is recognized as work that, due to climatic and other natural conditions, is performed during a certain period of time (season), which, as a rule, does not exceed six months. Lists of seasonal work, including individual seasonal work, which can be carried out during a period (season) exceeding six months, and the maximum duration of these individual seasonal work are determined by sectoral (intersectoral) agreements concluded at the federal level of social partnership.

A fixed-term employment contract is concluded with persons sent to work abroad. Fixed-term employment contracts are concluded with employees recruited to work in diplomatic missions and consular offices of the Russian Federation, as well as with employees sent to representative offices of federal executive authorities and state institutions of the Russian Federation abroad. For example, an employment contract is concluded with employees of diplomatic missions and consular offices for a period of up to three years. The term of an employment contract with employees of representative offices of federal executive bodies and state institutions abroad is determined by agreement of the parties on the basis of protocols concluded by the relevant bodies and institutions with the Russian Foreign Ministry. For work that goes beyond the normal activities of the organization (reconstruction, installation, commissioning and other work), as well as for work associated with a deliberately temporary (up to one year) expansion of production or the volume of services provided, a fixed-term employment contract is concluded.

This rule assumes two grounds for concluding a fixed-term employment contract:

1) to perform work that goes beyond the normal activities of the organization. The ordinary activity of the organization is determined by its organizational and registration documents. As an example, the legislator names such types of work as reconstruction, installation and commissioning. However, the list of such works is open, since the specified norm also refers to other works. When concluding such an agreement, the law does not define its deadline, therefore, as a general rule, it should not exceed five years;

2) to carry out work associated with a deliberately temporary (up to one year) expansion of production or the volume of services provided. Unlike the previously considered case, these works are carried out as part of the normal activities of the organization and it is known that the need for them will continue for more than one year.

A fixed-term employment contract is concluded with persons entering work in organizations created for a predetermined period of time or to perform a predetermined job. In the founding documents of such an organization, it must be written that it was created to perform a certain job and for a certain period of time (for example, the directorate for holding anniversary events, exhibitions, competitions, etc.). The term of an employment contract with persons entering work in such organizations cannot exceed the term stipulated by the constituent documents of this organization, however, most likely, the term of such an employment contract may be less than the term of the organization’s activities due to the fact that the involvement of certain specialists is determined by the types (nature), as well as schedules (plans) of the work performed. The termination of the employment contract with the specified employees on the basis of the expiration of the term of the employment contract can be carried out if the organization actually terminates its activities due to the expiration of the period for which it was created, or the achievement of the purpose for which it was created, without transferring rights and obligations to succession to other persons ().

If a fixed-term employment contract was concluded for the performance of certain work in cases where its completion cannot be determined by a specific date, such an agreement, by virtue of part 2 of Article 79 of the Labor Code, is terminated upon completion of this work. When establishing in the course of the trial the multiple conclusion of fixed-term employment contracts for a short period to perform the same labor function, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period . A fixed-term employment contract is concluded with persons hired to perform a deliberately defined work in cases where its performance (completion) cannot be determined by a specific date, which must indicate that it is concluded for the duration of a specific job (for example, drawing up a report , organization and conduct of elections, etc.). The basis for termination of such an employment contract will be the end (completion) of the specified work.

A fixed-term employment contract is concluded for the performance of work directly related to the internship and vocational training of the employee. The term of the contract in such cases is determined by the term of the internship or the term of vocational training. There are no internship terms in the legislation, they are determined by agreement of the parties to the contract based on the specialty in which the internship takes place and the level of knowledge of the trainees. A fixed-term employment contract is concluded with persons elected for a certain period to an elected body or to an elective position for paid work. For example, for the position of dean of a faculty or head of a department of a higher educational institution. A fixed-term employment contract is also concluded when applying for a job related to the direct support of the activities of members of elected bodies or officials in state authorities, local governments, as well as in political parties and other public associations. The law provides for the conclusion of a fixed-term employment contract for the performance of work that is directly aimed at ensuring the activities of an elected body or officials (for example, an assistant to a deputy, an adviser to the chairman (his deputies) of a legislative (representative) body, an adviser to the governor, an assistant to the chairman of a party, etc.). ).

It should be noted that in accordance with the Federal Law of July 27, 2004 No. 79-FZ "On the State Civil Service of the Russian Federation" (as amended on December 6, 2011), with persons filling positions established to assist persons replacing public office, heads of state bodies, heads of territorial bodies of federal executive bodies and heads of representative offices of state bodies in the exercise of their powers, a fixed-term service contract is concluded, the conditions, content, procedure for concluding and terminating which are regulated by this Law. At the same time, it should be borne in mind that the effect of labor legislation and other acts containing labor law norms applies to state civil servants and municipal employees with the features provided for by federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation on state civil service and municipal service. A fixed-term employment contract is concluded with persons sent by the bodies of the employment service for temporary work and public works. The term of the contract in such cases is determined by the agreement of the parties. In accordance with Article 24 of the Law of the Russian Federation "On Employment in the Russian Federation", a fixed-term employment contract for up to six months is concluded with persons wishing to participate in public works.

According to Article 6 of the Federal Law of July 25, 2002 No. IZ-FZ "On Alternative Civil Service" (as amended on November 30, 2011), a fixed-term employment contract is concluded with citizens undergoing alternative service for the period of service. The term of the contract is established by paragraphs 1 and 2 of Article 16 of the Law. It should be borne in mind that part 1 of article 59 provides, in addition to the listed cases, other cases defined by the Labor Code or other federal laws. For example, heads of consumer cooperative organizations created by consumer societies and (or) unions are appointed to positions for up to five years. Unlike part 1 of article 59, part 2 provides for cases when, by agreement of the parties, a fixed-term employment contract may be concluded. Both the employee and the employer can initiate the conclusion of such an agreement. Thus, in the cases listed below, it is possible to conclude an employment contract both for a fixed period and for an indefinite one. The conclusion of such contracts does not depend on the nature of the work to be done or the conditions for its implementation, i.e. the requirements of Article 58 of the Labor Code do not apply. However, it must be borne in mind that such an employment contract is concluded only by mutual agreement between the employee and the employer.

If the court, when resolving a dispute on the legitimacy of the conclusion fixed-term contract it is established that it was concluded by the employee involuntarily, the court applies the rules of the contract concluded for an indefinite period (paragraph 13 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). The criteria that allow the conclusion of a fixed-term employment contract with employers - small businesses have been changed. The right to conclude fixed-term employment contracts remains only with employers with up to 35 employees, and in retail trade and consumer services organizations - up to 20 people. The concept of small businesses is contained in the Federal Law of July 24, 2007 No. 209-FZ "On the Development of Small and Medium-Sized Businesses in the Russian Federation" (as amended on December 6, 2011). Such an agreement may be concluded for a period not exceeding five years. A fixed-term employment contract may be concluded with old-age pensioners entering work. The new version of Article 59 clarifies that the conclusion of a fixed-term employment contract applies only to pensioners by age, i.e. for persons who have already been assigned a pension, taking into account age and length of service. If the employee does not have the necessary conditions for the appointment of a pension, even if the employee has reached retirement age, an employment contract is concluded with such an employee for general conditions. Old-age pensioners also include persons who have been granted a pension for preferential terms(due to harmful and difficult working conditions).

Thus, one of the parties to the employment contract is a person who has acquired the status of a pensioner, i.e. has reached retirement age and is entitled to an old-age pension. Part 2 of this rule applies to persons who, for health reasons, are allowed to work on a temporary basis. The state of health and the duration of work must be established by a medical report (for example, institutions of medical and social expertise, clinical expert commissions). The term of the employment contract is stipulated by the agreement of the parties and cannot exceed that specified in the medical report. A fixed-term employment contract is concluded with persons entering work in organizations (enterprises) located in the regions of the Far North and equivalent areas. However, such an agreement can only be concluded with those persons who have moved to their place of work from other regions of Russia. The list of regions of the Far North and areas equated to them was approved by the Decree of the Council of Ministers of the USSR of November 10, 1967 No. 1029 (as amended on January 3, 1983). It should be borne in mind that with local residents, those who permanently reside in the regions of the Far North and equivalent areas, a fixed-term employment contract can be concluded only on the general basis provided for in Article 58 of the Labor Code. However, it must be borne in mind that the conclusion of a fixed-term employment contract can be considered reasonable if the work is temporary due to certain circumstances.

To carry out urgent work to prevent accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances (earthquakes, fires, floods, etc.), a fixed-term employment contract is also concluded. The term of the employment contract is determined by agreement of the parties, since the law does not define either minimum or maximum terms such an agreement. It seems that the term of the employment contract in these cases may be determined by the deadline for the completion of work to eliminate the circumstances specified in this rule (for example, the completion of work to eliminate an accident, catastrophe, earthquake, etc.). A fixed-term employment contract may be concluded with persons elected by competition to fill the relevant position; with scientific, pedagogical and other employees based on the results of a competition held in the manner prescribed by law (or other regulatory act). The basis for concluding a fixed-term employment contract with these categories of employees is the fact that this person has passed the competition. On the basis of the competition, positions of researchers, heads of laboratories, departments, sectors in research institutions are filled (). A fixed-term employment contract may be concluded 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.

The list of these professions, in accordance with which fixed-term employment contracts are concluded, was approved by Decree of the Government of the Russian Federation of April 28, 2007 No. 252, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations. A fixed-term employment contract is concluded with managers, their deputies and chief accountants of organizations, regardless of their organizational and legal forms and forms of ownership. A fixed-term employment contract with full-time students can be concluded not only with students, but also with graduate students, and not only for the period of their holidays, but also for other periods of time. However, it should be borne in mind that the work they perform should not interfere with learning process. Since the legislator has not determined the term of the employment contract with full-time students (postgraduates), it is established on a general basis (but not more than five years) or the term of the contract may be determined by the term of study (but not more than five years). When concluding a fixed-term employment contract with full-time students, the employer, in addition to the documents provided for by the Labor Code, may require a certificate confirming the fact of the student's (graduate student's) full-time education.

A fixed-term employment contract may be concluded with persons who have entered a part-time job. Part-time work can be performed by an employee both at the place of his main job ( internal combination), and other employers ( external combination). Part-time work is allowed only in free time from the main job. Other cases when it is possible to conclude fixed-term employment contracts, in addition to those contained in Part 2 of Article 59, may be provided for by the Labor Code and other federal laws.

Gavrikova I. A., senior scientific editor of the journal "Salary"

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

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

For undefined period;

for a specified period, but not more than five years. Let's talk more about a fixed-term employment contract.

When they conclude

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

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

Table.

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

If there are no specified grounds when registering an employment relationship, the employer cannot conclude a fixed-term employment contract with the employee. Otherwise, when labor dispute this fact will be qualified as a violation of the rights of the employee. In addition, it is impossible to conclude fixed-term employment contracts repeatedly without a temporary break when it comes to employees performing the same job function. This, in particular, is stated in paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter - Resolution No. 2). Given the circumstances of the case, such contracts may be considered concluded for an indefinite period.

We draw up a fixed-term employment contract

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

Mandatory terms of an employment contract

A fixed-term employment contract, like any other, must contain mandatory conditions. According to part 2 of article 57 of the Labor Code, these are:

place of work;

labor function;

date of commencement of work;

salary;

mode of operation;

compensation;

the nature of the work;

condition on compulsory social insurance, etc.

How to determine the terms of the contract

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

The end date of the contract is set. If a specific date is set when the term of the employment contract ends, it must be written in the document. Recall that a fixed-term contract can be concluded for a period not exceeding five years.

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

Let's consider how a term record can be formulated using an example.

Example 1

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

Solution

The clause of the contract, in which the condition on the term of its validity is written, will look like this:

"2. Contract time

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

An end date for the contract has not been set. In some cases, it is impossible to determine the end date of the employment contract. Here are some typical situations when the contract prescribes a condition on its validity period, and not a specific date. So, the conclusion of a fixed-term employment contract is possible:

• in connection with the departure of the employee in maternity leave and parental leave;

illness of an employee;

• performance of seasonal work.

In these cases, the expiration of the employment contract is associated with a specific event, for example, the return of an employee to work after a long illness. In this regard, Resolution No. 2 provides the following explanations. If a fixed-term employment contract is concluded for the performance of certain work, and the exact date of its completion is unknown, the contract is terminated upon completion of this work by virtue of part 2 of article 79 of the Labor Code.

Example 2

Confectioner P.L. Pryanishnikova was accepted into Vanil LLC for the duration of the confectioner V.A. Kalacheva course of treatment in a hospital since August 1, 2010. With P.L. Pryanishnikova signed a fixed-term employment contract. How will the condition on the term of the contract be spelled out if it is not known exactly when V.A. Kalacheva will return to her workplace?

Solution

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

"2. Contract time

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

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

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

2.5. In the event that the main employee V.A. Kalacheva disability with limited ability to work or dismissal, the Employer extends this contract with the Employee replacing him for an indefinite period.

Probation

Is it possible to install probation at the conclusion of a fixed-term employment contract? It all depends on how long and for what work the employee is hired.

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

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

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

Recall that according to Article 70 of the Labor Code of the Russian Federation, a test for employment is also not established:

• pregnant women and women with children under the age of one and a half years;
• persons elected on the basis of a competition for the relevant position held in accordance with the procedure established by labor legislation and other regulatory legal acts containing labor law norms;

under the age of 18;

• graduates of state-accredited educational institutions of primary, secondary and higher vocational education and for the first time entering a job in their specialty within one year from the date of graduation educational institution;

elected to an elective position for a paid job;

• invited to work in the order of transfer from another employer as agreed between employers;
• to other persons in cases stipulated by the Labor Code, other federal laws, a collective agreement.

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

We draw up a fixed-term employment contract

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

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

Example 3

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

Solution

The fixed term contract is below.

Entry in the work book upon employment

According to paragraph 4 of the Rules for maintaining and storing work books, production of work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of April 16, 2003 No. 225, information about the employee, the work performed by him, transfer to another permanent job, dismissal, as well as the grounds for termination of the employment contract and information on the award for success in work.

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

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

Vacation of a conscript worker

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

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

Holidays are paid on the basis of the average wage, which is calculated according to the rules established in Article 139 of the Labor Code, as well as in the Regulation on the peculiarities of the procedure for calculating the average wage, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922.

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

Extension of a fixed-term employment contract

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

Mandatory extension of the contract

The validity of a fixed-term employment contract can be mandatory extended only in one case - if it coincides with the period of the employee's pregnancy. In this situation, the employer is obliged to extend the term of the employment contract until the end of the pregnancy. This is stated in part 2 of article 261 of the Labor Code.

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

Extension by agreement of the parties

Part 4 of Article 58 of the Labor Code states the following. In the event that none of the parties demanded the termination of a fixed-term employment contract due to the expiration of its validity period and the employee continues to work, the condition on the urgent nature of the employment contract becomes invalid. After that, the employment contract is considered concluded for an indefinite period. Does the fact of changing the status of a fixed-term contract to an open-ended contract need to be documented?

In fact, the change in the status of the contract occurs automatically. After that, the conscript employee is subject to the labor law norms that are provided for employees who have concluded open-ended employment contracts. For example, such an employee can no longer be fired on the basis of the expiration of the employment contract (clause 2, article 77 of the Labor Code of the Russian Federation).

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

First of all, this is an additional agreement to the employment contract. It is possible to give the following wording in it: “To state clause No. ... in the following wording: “This employment contract is concluded for an indefinite period””.

Fixed term contract with pensioner

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

Therefore, it is possible to conclude employment contracts with pensioners for an indefinite period. There is also no need to dismiss an employee who has received the status of a pensioner and conclude a fixed-term contract with him. He can continue to work on the basis of a previously concluded open-ended contract.

Termination of a fixed-term employment contract

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

The notification is made in any form. It must specify the term for terminating the contract and the rationale (for example, in connection with the completion of work).

Dismissal order

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

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

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

Entry in the workbook

On the day the employment contract is terminated, the employee must be given a work book in his hands (part 4 of article 84.1 of the Labor Code of the Russian Federation).

According to paragraph 5.2 of the Instructions for filling out work books, approved by Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, upon termination of an employment contract on the grounds provided for in Article 77 of the Labor Code of the Russian Federation, a dismissal entry is made in the work book with reference to the corresponding paragraph of this article.

On a note

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

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

After receiving the work book, the employee must sign in the book of accounting for work books and inserts to them in the form approved in Appendix 3 to the Decree of the Ministry of Labor of Russia dated 10.10.2003 No. 69, and on the last page of the personal card, the unified form of which No. T-2 was adopted by the Decree Goskomstat of Russia dated 05.01.2004 No. 1.

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

If the employee is on sick leave at the time when his contract expires, the fixed-term employment contract is not extended. An employee is fired for general reasons. However sick leave must be paid. Article 183 of the Labor Code of the Russian Federation obliges the employer to do this. It states that in the event of temporary disability, the employer pays the employee temporary disability benefits in accordance with federal laws.

In turn, paragraph 2 of Article 5 of the Federal Law of December 29, 2006 No. 255-FZ “On Compulsory Social Insurance in Case of Temporary Disability and in Connection with Motherhood” states that temporary disability benefits are paid to insured persons not only during the period of employment agreement, but also in cases where the disease or injury occurred within 30 calendar days from the date of termination of its validity.

Taxation and retirement benefits

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

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

An employee is paid upon termination wage for hours worked, and in some cases - severance pay.

The first two payments are subject to:

personal income tax (clause 1, article 210 of the Tax Code of the Russian Federation);

• insurance premiums (clause 1, article 7 of Federal Law No. 212-FZ dated July 24, 2009 “On insurance premiums to the Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and territorial compulsory medical insurance funds”).

The amounts of wages and compensation are included in the taxpayer's expenses for wages (part 1 of article 255 of the Tax Code of the Russian Federation).

Wages are subject to contributions for injuries (clause 3 of the Rules for the calculation, accounting and spending of funds for the implementation of compulsory social insurance against accidents at work and occupational diseases, approved by Decree of the Government of the Russian Federation of 02.03.2000 No. 184).

Compensation is not subject to contributions for injuries (clause 1 of the List of payments for which insurance premiums are not charged to the FSS of Russia, approved by Decree of the Government of the Russian Federation of 07.07.99 No. 765).

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

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

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

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

DEBIT 70 CREDIT 68 sub-account "Calculations for personal income tax"- personal income tax withheld from payments that are subject to this tax;

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

Read more about everything related to seasonal work in the articles "Employee for the Season // Salary, 2010, No. 7". There are also examples of filling out documents. - Note. ed.

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;

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, 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;

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

with persons receiving full-time education;

with crew members of seagoing vessels, inland navigation vessels and mixed (river - sea) navigation vessels registered in the Russian International Register of Vessels;

with persons entering a part-time job;

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

Commentary on Art. 59 Labor Code of the Russian Federation

1. This article provides a list of cases and works for the performance of which a fixed-term employment contract can be concluded - both at the initiative of the employee and at the initiative of the employer. See: Resolution of the Government of the Russian Federation of April 28, 2007 N 252 "On approval of the List of professions and positions of creative workers in the media, cinematography organizations, television and video crews, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, the features of labor activity of which are established by the Labor Code of the Russian Federation Federation" (SZ RF. 2007. N 19. Art. 2356).2. This list is not exhaustive. However, additional grounds (cases) for concluding a fixed-term employment contract can only be provided for by the Labor Code or other federal laws.3. In a number of cases, established both in this article and in other federal laws, the conclusion of a fixed-term employment contract is possible by agreement of the parties.