Concluding a fixed-term employment contract without grounds. Legality of concluding and terminating a fixed-term employment contract

Fixed-term employment contract - with whom can you conclude it and under what conditions? These issues are relevant for all participants in labor relations. Unlike an open-ended contract, a contract concluded for an agreed period ends at a specified time or upon the occurrence of certain events. The reader will learn more about the list of persons with whom fixed-term employment relationships can be formed by reading the publication.

Fixed-term employment contract: signs and cases of conclusion

Legal regulation of issues related to the execution of this type of agreement is carried out in accordance with the Labor Code of the Russian Federation.

Art. 59 of the Labor Code of the Russian Federation stipulates that fixed-term contracts have the following characteristics:

• They are concluded for a certain period, which may be limited to a calendar date or moment characterized by circumstances (events) specified in the agreement. Read about the differences between a fixed-term contract and an open-ended one.
• At the end of the stipulated period and in the absence of proposals from the employer to extend it, the contract is considered to have expired.
• Depending on the term of the contract, the probationary period can be minimal, up to 2 weeks, or not applied at all, for example, when the agreement is valid for up to 2 months (Article 70 of the Labor Code).

Let us note that if the agreement does not contain an indication of its time-limited validity, as well as in cases where the stipulated period exceeds 5 years, then the contract is considered to be concluded on an indefinite basis.

In what cases does the law establish that a fixed-term employment contract is concluded and not an open-ended one?

The legislator in Art. 59 of the Labor Code of the Russian Federation directly stipulates cases of drawing up an agreement with an employee that provides for a limited period of validity. The law establishes that a fixed-term employment contract is concluded:

• to assign to the hired employee the duties of an employee who is absent from work for a long time, in cases where the employer is required by law to maintain the job for such an employee (for example, in case of illness);
• carrying out urgent work (up to 2 months);
• performing work with a characteristic feature of seasonality, which, due to climatic conditions, can only be carried out in the corresponding season, and the agreement concluded for such work is terminated at the end of the season;
• if necessary, perform work duties abroad (as a rule, the term of the agreement corresponds to the time spent outside the Russian Federation);
• carrying out work not included in the main activities of the organization, related to the expansion of production capacity or increase in volumes, as well as the implementation of other activities (repair, commissioning and other types of work);
• when the employer is a legal entity created for a limited period to carry out certain work (the agreement is limited to such a period, and it ceases to be valid at the moment of termination of the organization’s activities, provided there is no succession);
• when hiring an employee for an internship, training in a specialty or practice;
• hiring an employee to perform specific work, including in cases where the period for its completion cannot be determined at the time of concluding a fixed-term contract;
• sending an employee to public and other temporary work by the employment center;
• issuing a referral to alternative civil service;
• election of a citizen to an elective position in government bodies, political, public and other associations.

With whom is a fixed-term employment contract concluded?

At the legislative level, categories of persons are established with whom, if there is an agreement, it is permissible to conclude a fixed-term contract, regardless of the conditions and nature of the duties performed. By virtue of para. 2 tbsp. 59 of the Labor Code of the Russian Federation, such persons include:

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• citizens who apply to work for individual entrepreneurs or small organizations whose staff does not exceed 35 people (20 people for employers in the field of trade and the provision of consumer services);
• pensioners who, by virtue of law or medical indications, are allowed only to work temporarily;
• employees who are accepted into organizations operating in the Far North, subject to relocation;
• employees involved in work aimed at preventing epidemics, accidents and other disasters, and, if necessary, eliminating the consequences of such incidents;
• have passed a competition to fill a vacant position;
• workers in creative professions, including the media, theaters, circuses and others (the list of professions classified as creative is approved by the Government of the Russian Federation);
• organizations included in the management, including managers, their deputies and chief accountants;
• those undergoing full-time training;
• members of the crew of vessels of various types of navigation;
• involved in part-time work.

The legislator may additionally provide for other categories of persons with whom, subject to appropriate consent, it is permissible to conclude a fixed-term contract. In particular, to such persons by virtue of Art. 348.2 of the Labor Code of the Russian Federation also applies to athletes and coaches of sports teams.

Who should you not enter into a fixed-term employment contract with?

A fixed-term contract is a type of contract concluded with an employee for an indefinite period, and therefore the restrictions in force by law apply to both types of agreement.

In particular, it is impossible to conclude a fixed-term contract with persons under 16 years of age (with the exception of categories of professions expressly provided for by law). In addition, only capable persons can act as employees; in some cases, admission of persons with limited legal capacity is possible if the conditions and nature of the work are safe for both the employee himself and those around him.

At the same time, the analyzed type of contract is characterized by an additional condition, in the absence of which the conclusion of such an agreement is unacceptable. This condition is the consent of the employee. In the absence of his consent regarding the period for which the contract is concluded, the contract is concluded for an indefinite period or is not concluded at all.

Features of concluding and terminating a fixed-term employment contract

The procedure and consequences of signing a fixed-term contract are almost identical to those that occur when drawing up an agreement with an employee that does not provide for its validity period. The exception is the indication of the reason for concluding the analyzed type of contract, for example, the performance of work depending on climatic conditions (seasonal), and the duration of its validity. Please note that an entry is made in the work book according to the general rule, without indicating the type of agreement executed.

Such a contract is terminated due to the expiration of its validity period in the manner provided for in Art. 79 Labor Code of the Russian Federation. The legislator does not limit the employee and the employer in applying any grounds for termination provided for indefinite employment contracts. In particular, termination is permissible at the initiative of the employee or employer, by agreement of the parties, before the end of the stipulated period.

A sample fixed-term agreement can be studied by reading

In conclusion, we note that employers have the right to exercise the right to conclude a fixed-term employment contract only in situations specified by law and with specific groups of people with their consent. Such conditions are aimed at protecting the interests of workers’ rights, since the conclusion of a fixed-term employment contract is a convenient tool for unscrupulous employers.

Based on the analysis of questions that come to the legal advice line, it becomes obvious that concluding a fixed-term employment contract in an educational organization raises a number of difficulties. The issue was discussed in some detail in the issue dated June 15, 2017. In addition to the previously presented materials, we will consider some features.

So, it was previously noted that there must be legal grounds for concluding a fixed-term employment contract. By virtue of Part 2 of Art. 58 of the Labor Code of the Russian Federation, a fixed-term employment contract can be concluded by agreement of the parties without taking into account the nature of the work to be performed and the conditions for its implementation, but only in the cases provided for in Part 2 of Art. 59 Labor Code of the Russian Federation.

• 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);
• age pensioners entering work, as well as 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;
• persons entering work in organizations located in the Far North and equivalent areas, if this involves moving to their place of work;
• persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulations containing labor law norms;
• creative workers of the media, cinematography organizations, theaters, theatrical 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 with taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations;
• managers, their deputies and chief accountants of organizations, regardless of their legal forms and forms of ownership;
• full-time students;
• crew members of sea vessels, inland navigation vessels and mixed (river-sea) navigation vessels registered in the Russian International Register of Ships;
• persons applying for part-time work.

The conclusion of a fixed-term employment contract by agreement of the parties is also possible for carrying out urgent work to prevent disasters, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances and in other cases.

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It must be borne in mind that a fixed-term employment contract concluded by agreement of the parties can be recognized as legal only if it is concluded on the basis of the voluntary consent of the employee and the employer. This was indicated by the Plenum of the Supreme Court of the Russian Federation in Resolution No. 2 of March 17, 2004.

If the employee was forced to agree to conclude this contract and this was confirmed during the consideration of a labor dispute about the legality of its conclusion, the court may recognize the fixed-term employment contract as concluded for an indefinite period. This conclusion follows from the analysis of Part 5 of Art. 58 Labor Code of the Russian Federation, para. 3 clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2.

When deciding the validity of concluding a fixed-term employment contract with an employee, it should be taken into account that such an agreement is concluded when the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be performed or the conditions for its implementation, in particular in the cases provided for in part one of Article 59 of the Labor Code RF, as well as in other cases established by the Code or other federal laws (part two of Article 58, part one of Article 59 of the Labor Code of the Russian Federation).

In accordance with part two of Article 58 of the Labor Code of the Russian Federation, in the cases provided for by part two of Article 59 of the Code, a fixed-term employment contract may be concluded without taking into account the nature of the work to be performed and the conditions for its implementation. It must be borne in mind that such an agreement can be recognized as legal if there was an agreement between the parties (part two of Article 59 of the Labor Code of the Russian Federation), i.e. if it was concluded on the basis of the voluntary consent of the employee and the employer.

If the court, when resolving a dispute about 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.

In accordance with part one of Article 58 of the Labor Code of the Russian Federation, a fixed-term employment contract can be concluded for a period of no more than five years, unless a longer period is established by the Code or other federal laws.

When concluding a fixed-term employment contract with persons entering work in organizations created for a predetermined period of time or to perform a predetermined job (paragraph seven of part one of Article 59 of the Labor Code of the Russian Federation), the term of the employment contract is determined by the period for which such an organization was created. Therefore, termination of an employment contract with these employees on the basis of expiration of the employment contract can be carried out if the organization actually ceases its activities due to the expiration of the period for which it was created, or the achievement of the purpose for which it was created, without transfer of rights and obligations in the order of succession to other persons (Article 61 of the Civil Code of the Russian Federation).

If a fixed-term employment contract was concluded to perform certain work in cases where its completion cannot be determined by a specific date (paragraph eight of part one of Article 59 of the Labor Code of the Russian Federation), such a contract, by virtue of part two of Article 79 of the Code, is terminated upon completion of this work.

If it is established during the trial that there have been multiple conclusions of fixed-term employment contracts for a short period of time 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.

When considering disputes between employees with whom fixed-term employment contracts were concluded for a period of up to two months or for the duration of seasonal work, it is necessary to take into account the peculiarities of regulating relations under these contracts, established by Chapters 45 - 46 of the Code. In particular, when hiring for a period of up to two months, employees cannot be subject to a test (Article 289 of the Labor Code of the Russian Federation); in the event of early termination of an employment contract, these employees, as well as employees engaged in seasonal work, are obliged to notify the employer about this in writing three calendar days in advance (part one of Article 292, part one of Article 296 of the Labor Code of the Russian Federation); The employer is obliged to notify about the upcoming dismissal in connection with the liquidation of the organization, reduction in the number or staff of employees in writing against signature: employees who have entered into an employment contract for a period of up to two months - at least three calendar days in advance (part two of Article 292 of the Labor Code RF), and for workers engaged in seasonal work - no less than seven calendar days (part two of Article 296 of the Labor Code of the Russian Federation).

What must be specified in the text of the employment contract? The employment contract should indicate that it is fixed-term (for example, “for a certain period, in connection with full-time study,” or “for the period of parental leave of the main employee,” etc.). In some cases, it is necessary to document the possibility of concluding a fixed-term employment contract with the mutual consent of the parties. So, for example, an employee who is a student can present a document indicating full-time study, and a pensioner can submit a pension certificate. The duration of an employment contract depends on the situation in which it is concluded. In the case of urgent work to prevent an accident, the completion date of the work may be unknown, therefore the employment contract indicates an event that will be the end date of the employment contract.

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Entry in the work book. The work book of an employee hired under a fixed-term employment contract is filled out according to the general rules. For more information about this, see paragraphs 1 and 2 of this material.

Entering into the work book information about the fixed-term nature of the employment contract is not provided for by the Labor Code of the Russian Federation, the Instructions for filling out work books, as well as the Rules for maintaining and storing work books. Consequently, indicating this information in the work book can be regarded as a violation of the procedure for maintaining work books, for which it is possible to bring administrative liability under Part 1 of Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, and in case of repeated commission of a similar offense - on the basis of Part 2 of Art. 5.27 Code of Administrative Offenses of the Russian Federation.

On a note! Extract from the Code of Administrative Offenses of the Russian Federation.

1. Violation of labor legislation and other regulatory legal acts containing labor law norms, unless otherwise provided by parts 3, 4 and 6 of this article and article 5.27.1 of this Code, shall entail a warning or the imposition of an administrative fine on officials in the amount of one thousand to five thousand rubles; for persons carrying out entrepreneurial activities without forming a legal entity - from one thousand to five thousand rubles; for legal entities - from thirty thousand to fifty thousand rubles.

2. The commission of an administrative offense provided for in Part 1 of this article by a person who has previously been subjected to administrative punishment for a similar administrative offense shall entail the imposition of an administrative fine on officials in the amount of ten thousand to twenty thousand rubles or disqualification for a period of one to three years. ; for persons carrying out entrepreneurial activities without forming a legal entity - from ten thousand to twenty thousand rubles; for legal entities - from fifty thousand to seventy thousand rubles.

Thus, if there is no regulatory basis for concluding a fixed-term employment contract with an employee, then only an indefinite employment contract should be concluded. And if there is a need to check the employee “in action,” then use the right to conclude an employment contract with a probationary period. True, there are some peculiarities here too.

Employers often have situations where they have to hire workers to perform a specific task. Usually in these cases, the director wants to hire people “temporarily,” that is, enter into a fixed-term employment contract with them. But is it always possible to conclude fixed-term employment contracts? How to do it right? What wording should be in the contract and in the employment order? The answers to these and other questions regarding fixed-term employment contracts are in our article today.

What are the limitations of using a fixed-term employment contract?

It is impossible to conclude a “temporary” (or, in legal terms, a fixed-term) employment contract with an employee, guided only by the desire of the employer. The list of cases in which the legislator allows a fixed-term employment contract to be drawn up is given in the article of the Labor Code of the Russian Federation. This list is exhaustive. At the same time, the article of the Labor Code of the Russian Federation states that if a fixed-term employment contract is concluded, then its text must indicate the circumstances (reasons) that served as the basis for the application of such a contract.

Thus, it is possible to formalize a temporary employment relationship with an employee only in cases where this is directly permitted by the provisions of an article of the Labor Code of the Russian Federation. To be fair, we note that the list of situations presented in this article is quite long. Moreover, some items on the list are open-ended, which makes it possible to further expand the scope of a fixed-term employment contract.

The list itself is divided into two parts. The first includes cases when a fixed-term employment contract can be concluded at the initiative of the employer. And the second part of the list lists situations where the application of a fixed-term employment contract requires agreement of the parties. Concluding the description of the general rules that govern the conclusion of fixed-term employment contracts, let us once again draw your attention to an extremely important rule. Even if the employee does not object to the temporary nature of the employment relationship, a condition regarding the duration of its validity can be included in the employment contract only if this is directly permitted by the provisions of the article of the Labor Code of the Russian Federation.

Below we will dwell in more detail on the most common grounds from the first part of this list (that is, we will consider cases when a fixed-term employment contract can be concluded at the initiative of the employer).

Temporarily absent employee

Perhaps, in practice, the most common situation in which it is possible to conclude an employment contract for a certain period is hiring to perform the duties of a temporarily absent employee. In this case, the job remains with the “main” employee. But while he is not doing his job, you can temporarily take another person in his place (Part 1 of Article of the Labor Code of the Russian Federation, letter of Rostrud dated November 3, 2010 No. 3266-6-1).

The Labor Code does not specify the reasons why the “main” employee may be absent from the workplace. Therefore, there can be absolutely any reasons. For example, temporary disability, leave (not only to care for a child, but also annual paid or unpaid leave), temporary transfer based on a medical certificate to another job, the employee’s performance of state or public duties, undergoing a medical examination or advanced training outside of work. work.

Let us note one more important point: it is impossible to draw up a fixed-term employment contract under which a “temporary” employee will alternately replace several absent “core” employees (for example, during their vacations). This is due to the fact that an article of the Labor Code of the Russian Federation provides for the execution of a fixed-term employment contract for the duration of the duties of an absent employee, that is, we are talking about a specific employee and the performance of his labor functions. Therefore, if it is necessary to organize “safety net” during the holidays of the “main” employees, then each time you will have to draw up a new contract (i.e., terminate the fixed-term employment contract when the “main” employee leaves and enter into a new one during the absence of another employee).

As noted above, on the basis of an article of the Labor Code of the Russian Federation, in a fixed-term employment contract it is necessary to directly indicate that the contract is concluded for a temporary period, and provide the corresponding reason from the list established by the article of the Labor Code of the Russian Federation. In the case under consideration (when hiring for the duration of the duties of an absent employee), it is recommended to include the following wording in the contract:

What to write in the contract and in form No. T-1

The list of seasonal work, as well as their maximum duration, are established by industry agreements (Part 2 of Article of the Labor Code of the Russian Federation). Also for these purposes, you can be guided by the List of Seasonal Works (approved by Decree of the People's Commissariat of Labor of the USSR dated October 11, 1932 No. 185) and other documents (for example, Decrees of the Government of the Russian Federation dated 04/06/99 No. 382 and dated 07/04/02 No. 498, Resolution of the Council of Ministers of the RSFSR dated 04.07.91 No. 381).

As we can see, in order to conclude a fixed-term employment contract on this basis, it is necessary that the seasonal nature of the work be officially confirmed. That is, the relevant type of work must be included in an industry agreement or regulation. Moreover, the term of such an agreement cannot exceed the term of the season established by the same document.

However, a probationary period for those hired for a period of up to two months is not assigned. If the employment contract is concluded for a period of two to six months, then the probationary period can be up to two weeks (Article of the Labor Code of the Russian Federation).

What to write in the contract and in form No. T-1

It should be noted in the employment contract that it is concluded for a season. Since the length of the season depends on natural and climatic conditions, it is not necessary to indicate a specific end date of the employment contract (Part 4 of Article of the Labor Code of the Russian Federation). Accordingly, the wording of the employment contract may be as follows:

The same wording must be transferred to the employment order (Form No. T-1). Moreover, in the “by” column of this order, the expiration date of the employment contract can be indicated not only by the specific end date of the season, but also by the occurrence of an event (for example, write “end of the season”).

Work outside the normal course of business of the employer

The next legal basis for concluding a fixed-term employment contract is the performance of work beyond the normal activities of the organization.

Features of concluding a fixed-term contract

If the employer enters into the work book information about the period for which the employment contract is drawn up, then this will be a violation of the procedure for maintaining work books, and may entail administrative liability under Article 5.27 of the Code of Administrative Offenses of the Russian Federation.

A fixed-term employment contract involves concluding an agreement with an employee for a specific, pre-agreed period. It assumes that upon expiration of the employment contract, all relations between the employer and the employee will be over.

A fixed-term employment contract is concluded in cases where an organization needs an employee for strictly defined work, limited to a known time period.

The main and, in fact, the only difference between a fixed-term employment contract and a standard (indefinite) one is that at the end of its validity. At least to conclude a new fixed-term contract.

If the employment contract does not indicate a specific period of its validity, then it is considered permanent, unlimited. Otherwise, employees working under a fixed-term employment contract are not limited in any way in their rights.

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

The answer to this question is stated in. It states that a fixed-term employment contract must be concluded in the following cases:

• it is necessary to temporarily replace another employee of the organization who is absent for one reason or another and at the same time retains his place in accordance with labor legislation and local regulations;
• it is required to perform work that is related to educational practice, obtaining vocational education or additional education in the form of an internship;
• election of a person to perform temporary paid duties within an elected body or to an elective position (including in government bodies, political parties and public associations);
• concluding a contract for work of a temporary nature (up to two months, including when sent by the Employment Center), as well as within the framework of public works;
• concluding a contract for work that goes beyond the boundaries of normal job duties;
• seasonal work;
• the employee’s work will be carried out abroad;
• employment in an organization whose activities are obviously temporary;
• in all cases when hiring an employee to perform work, if its completion cannot be determined with an accuracy of the day;
• work within the alternative civil service.

Conclusion of a fixed-term employment contract by agreement of the parties

• work for individual entrepreneurs and other small businesses, if the number of employees does not exceed 35 people;
• concluding an agreement with pensioners and persons with serious medical restrictions on working;
• work in organizations in the Far North and other similar territories, if it involves moving to the place of work;
• work to eliminate the consequences of emergency situations;
• concluding an agreement with persons who are elected through a competition to fill a vacant position;
• labor relations with workers in creative professions;
• concluding an agreement with the heads of organizations, their deputies and chief accountants;
• labor relations with full-time students;
• drawing up an agreement with crew members of sea vessels and mixed-type vessels;
• concluding a contract for part-time work.

For how long can a temporary employment contract be concluded?

According to labor law, a fixed-term employment contract is concluded for a period of no more than 5 years. The lower time limit is not defined; it depends on the specifics of the specific labor relationship and the reasons why the fixed-term contract was concluded.

Here is a list of the most common grounds for concluding a fixed-term employment contract and the approximate time frame to which it is limited in each specific situation:

• Seasonal work. The contract must indicate that the employee is hired for a specific season, right up to the signing of the acceptance certificate for the work performed. After this, the contract will be automatically terminated;
• Public works in the direction of the Employment Centers. The contract must indicate the fact that the employee was sent from the central work center, and also indicate the period during which the work will be performed (individually);
• Cases when a specific end date for temporary work cannot be given. The fixed-term contract states that it will be terminated immediately after the employee fulfills the duties assigned to him (for example, after the delivery of a renovated property);
• Temporary replacement of an absent employee (for example, during maternity leave). The fixed-term contract directly states that the employee is hired for the entire period that such and such an employee is on maternity leave. As soon as the vacation is completed and the former employee returns to work, the contract will be immediately terminated;
• Work as part of an internship or to acquire practical skills necessary to complete your studies. The duration of the contract in this case is determined depending on the terms allocated for the internship by the educational institution or special regulations;
• Work as a substitute for military service (alternative civilian service). The validity period of a fixed-term contract is determined by the Military Commissariat, which sent the conscript for service;
• Temporary work (up to two months). The contract must reflect the temporary nature of the work and its type, as well as the duration (if possible). The contract will be terminated based on the issuance of the relevant order;
• Employees of organizations working abroad. The standard period for concluding a fixed-term employment contract with them is 3 years;
• Employees elected to elective positions of state and municipal bodies, political parties and public associations. The duration of the contract for them is equal to the period of work of these bodies;
• Conclusion of a fixed-term employment contract by agreement of the parties. The duration of the contract is negotiated individually with the employer, but it cannot exceed 5 years. After the end of the 5-year validity period, a fixed-term employment contract can be concluded again, including on new terms.

Strengths and weaknesses of a fixed-term employment contract

What advantages can an employee who is hired under a fixed-term employment contract find for himself?

• A full package of social guarantees and rights guaranteed by labor legislation to all employees without exception. That is, employees working under a fixed-term contract are not limited in their rights in any way compared to permanent, full-time colleagues;
• The possibility of concluding a fixed-term contract is clearly stated in the law. There is a strict list of situations when an employer has the right to offer such a model of cooperation (Article 59 of the Labor Code);
• If the company is liquidated before the end of the contract, the employee will receive standard payments (the same as those employees who have worked in the organization for many years).

However, we can name several disadvantages of working under a fixed-term employment contract. First, the contract will expire sooner or later, and then you will again have to look for a new job or look for an opportunity to conclude another fixed-term contract. The same applies to the situation when a person temporarily replaces another employee.

In addition, when working under a fixed-term contract, there may be problems with continuous service, which will certainly affect pension payments. This is also true for women who in the future, after the expiration of the contract, are going to take maternity leave.

The advantage of a fixed-term contract for an employer is greater control over the employee’s work activities and the ability to painlessly part with him at the end of the contract.

The downside is the impossibility of terminating a fixed-term employment contract in some cases. For example, if an employee is pregnant, find out. In this case, it will be possible to terminate the employment relationship with her only upon liquidation of the organization itself.

In the practice of working with hired personnel, situations sometimes arise when the work of employees is needed not on an ongoing basis, but for some time. In this case, it is worth concluding a fixed-term employment contract with such employees. Unlike ordinary (unlimited) contractual relationships, such contractual relations cannot last longer than the time specified by law.

Fixed-term contracts have their own nuances of conclusion, which should be observed by both parties in order to avoid misunderstandings, which will then have to be resolved in court. Let us analyze the grounds for formalizing such labor relations, their legal basis, as well as the main points that employees and employers need to take into account.

Legislative justification for fixed-term contracts

The word “urgent” in the definition of this type of contract does not mean any additional speed of its execution; it comes not from “urgency”, but from “deadline”. This is how it is declared to differ from contracts that are concluded for an indefinite period.

In the usual form of employment contractual relations, the start date of work is precisely known, but the time of separation and the reasons for dismissal cannot yet be determined.
But when the last condition is known to both parties, that is, both the employee and the employer know when they will terminate their cooperation agreement, it is advisable to formalize the relationship with a predetermined period - fixed-term employment contract.

The Labor Code of the Russian Federation calls an employment contract mandatory when formalizing the “employee-employer” relationship (Article 56 of the Labor Code of the Russian Federation), and the term is its essential condition. Options when an employer gives an employee temporary employment are defined in Art. 59 Labor Code of the Russian Federation. Their determining factor is an important circumstance: a fixed-term employment contract is legal only when, for objective reasons, it is impossible to conclude a permanent one.

NOTE! To conclude such an agreement, the will of the employer and even the consent of the employee are not enough; its execution must comply with the grounds given in the legislation. Otherwise, if you have to deal with it in court, a fixed-term contract concluded on an illegitimate basis will be recognized as unlimited.

The attractiveness of fixed-term employment contracts

The party that benefits most from entering into a fixed-term rather than an open-ended contract is the employer. The reasons are obvious:

• an employee on a temporary basis is more manageable;
• It is easier to motivate a “conscript”, since the extension of cooperation with him directly depends on the management;
• it is much easier to carry out the dismissal procedure;
• an employee dismissed at the end of his term cannot challenge such dismissal;
• In this way, you can get rid of any categories of employees, even the most socially protected ones.

For workers, as a rule, permanent employment is preferable, providing certain guarantees and confidence in their future. Domestic legislation and the International Labor Convention (ILO) adhere to the same position, seeking to minimize the number of workers employed on a temporary basis.

Features of a fixed-term employment contract

The determining factor in the choice in favor of the urgency of contractual relations is an important circumstance: a fixed-term employment contract is legal only when, for objective reasons, it is impossible to conclude a permanent one.

This reason must be indicated in the text of the contract.

The validity period of such an agreement cannot exceed 5 years. If the document does not indicate specific terms or an event that terminates the contractual relationship, it will automatically be considered a contract with an indefinite period. Likewise, if a period of more than five years is specified.

Termination of a fixed-term contract must be indicated in the text. This is possible in two ways:

• indicating a specific date when the contract will be terminated;
• designation of an event, the occurrence of which terminates the validity of the fixed-term contract.

The arrival of the final date does not mean immediate termination of work: the employee must be notified in writing 3 days in advance of the upcoming dismissal in accordance with its expiration. If this is not done, the dismissal can be challenged.

In the second case, prior notification is impossible, since the occurrence of an event automatically terminates the fixed-term contract, as provided for by its terms. Most often, such an event is the return to work of the main employee, instead of whom a temporary one was hired.

With whom can you enter into fixed-term employment contracts?

Employers formalize such relationships with those employees whose nature of work does not make it possible to determine the duration of the working relationship or, on the contrary, quite clearly indicates their end. Such categories of personnel include, for example, the following:

• seasonal workers;
• employees hired to complete a specific type of work by a specific date;
• employees who were sent to work abroad or to another branch of the organization;
• specialists hired from outside to perform work not provided for by the organization’s core activities;
• teachers who can work in the corresponding position only for the duration of the competition;
• replacing an employee on long-term sick leave or maternity leave, etc.

Transfer to a fixed-term employment contract from an open-ended one

As a rule, employees work under an open-ended contract. However, sometimes there is a need to transfer to a fixed-term contract. This can be done, but the procedure must comply with all the rules.

Reasons for transferring to a fixed-term employment contract

An employee can only be transferred to a fixed-term contract if there are sufficient grounds for doing so. If there are no such grounds, the agreement will be considered unlimited. An employer must not enter into fixed-term agreements for the purpose of deviating from providing employees with rights and guarantees. Let's look at the reasons why an employer makes a transfer:

• The employee is appointed to replace the temporarily absent employee. The latter retains his place of work.
• An employee is sent to temporary work abroad.
• The work involves a temporary expansion of production.
• The employee has a disability.

That is, transfer to a fixed-term contract is relevant in cases where the employee’s status changes. For example, he developed health restrictions.

Is it legal to transfer to a fixed-term contract?

The issue of the legality of transferring an employee to a fixed-term agreement is extremely controversial. If the employer initially signed the employee up to an open-ended contract, he must ensure compliance with the terms of this agreement. That is, the worker receives the right to work for an unlimited time.

An agreement can only be based on the clauses established by the Labor Code of the Russian Federation.

For this reason, transferring an employee from an open-ended to a fixed-term contract is not legal. The employer cannot, for the purpose of transfer, simply enter into an additional agreement. The employee, if desired, can easily challenge this document.

Another significant mistake is drawing up a new agreement while the previous agreement is still in effect. According to the law, if two documents apply to an employee, the document with the most favorable conditions will be valid. In this case, the most advantageous would be an open-ended contract, since it provides a larger list of rights.

IMPORTANT! Many employers believe that entering into a new agreement automatically cancels the previous agreement. However, this is a wrong position. In order for only one act to be in effect, the old act must be legally repealed.

How to legally transfer a person to a fixed-term contract?

The only legal way to transfer an employee to a fixed-term contract is to terminate the previous agreement and draw up a new one. However, you need to take into account all the disadvantages of this path:

• The need to pay compensation for vacation that was not used.
• The accrual of length of service for vacation registration begins anew. In order for an employee to be able to legally go on vacation, he needs to work for 6 months. For example, an employee under the first open-ended contract worked for 5 months. That is, after a month he can go on vacation. However, if the previous agreement is terminated, another agreement is drawn up, the vacation will be legal only after 6 months.
• You will have to draw up cadastral documentation for the employee as a newly hired employee.

The legislation does not provide for a simplified procedure for dismissing an employee and rehiring him. The listed difficulties are related to preventing abuse.

Procedure for drawing up a new employment contract

Let's consider the legal procedure for transferring an employee to a fixed-term contract by drawing up a new agreement:

1. The employer conducts a conversation with the employee and offers him new working conditions. Explains the translation scheme.
2. The employee resigns at his own request or by agreement of the parties.
3. A new employment contract with a limited duration is immediately drawn up. The manager issues an order to hire a person.
4. The relevant information is entered into the work book.

This method of transfer is more complicated, but it is legal.

Legitimate reasons for urgency

The law provides for two legitimate reasons for concluding a fixed-term rather than an open-ended employment contract:

1. Relationships are concluded strictly for a certain period, based on the nature of the work to be done and the accompanying circumstances.
2. The urgency of labor relations is determined by the agreement of the parties in cases where this does not contradict current legislation.

The labor legislation of the Russian Federation (Part 1 of Article 59 of the Labor Code of the Russian Federation) allows fixed-term contracts arising from the nature of the work, in the following circumstances:

• for a time when a full-time employee is absent from his workplace for objective reasons, whose workplace must be retained by law;
• the upcoming work will not take more than 2 months;
• to provide seasonal labor;
• for foreign forms of work;
• performing actions necessary for the company, but not related to its main activities (for example, installation work, repairs, reconstruction, etc.);
• work associated with a limited (usually up to a year) time period, such as expanding activities, increasing capacity, volumes, etc.;
• the company is specifically created for a short existence, providing a limited time for performing specific work;
• labor related to vocational training and internship of employees;
• election to a working elective body for a certain period;
• assignment to community service;
• additional cases provided for by Federal legislation (existing and possible to be adopted in the future).

Fixed-term employment contract on agreement of the parties can be concluded only on a limited list of grounds:

• the employer is a small business representative;
• employee - pensioner;
• a medical employee is allowed only temporary employment;
• work in the Far North and other equivalent territories;
• when elected through a competition to fill a vacant position;
• urgent work aimed at preventing and/or eliminating the consequences of emergency situations;
• with management, deputies and chief accountants of organizations;
• with creative workers (in accordance with the list of similar positions);
• with pupils or full-time students;
• with part-time workers;
• with those working on watercraft registered in the Russian International Register of Ships;
• other grounds consistent with federal laws (current and future).

Employer, remember:

• You cannot conclude a fixed-term employment contract on grounds not specified in Art. 59 Labor Code of the Russian Federation;
• when dismissing an employee after the expiration of a fixed-term contract, do not forget to notify him in writing 3 days in advance;
• did not warn about dismissal - the contract will become indefinite.

Worker, take note:

• when getting a fixed-term (temporary) job, pay attention to the condition for ending the job (a specific date or event);
• if the law provides for this, you can demand an extension of a fixed-term contract (for example, during pregnancy);
• if your rights as a “conscript” are violated, the court will reinstate you at work, force the employer to pay, and possibly moral damages.