Fixed-term employment contract: instructions for use. Cases of concluding fixed-term employment contracts

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.

Employee, 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.

There are so-called legally significant circumstances, if present and proven, it is possible to conclude fixed-term employment contracts. These circumstances are specified in Article 58 of the Labor Code of the Russian Federation. These include, firstly, the impossibility of establishing an employment relationship for an indefinite period for any reason, usually due to the temporary or seasonal nature of the work, concluding an employment contract for a period of no more than 5 years or less. Specific cases in which a fixed-term employment contract is concluded are given in Article 59 of the Labor Code of the Russian Federation.

Examples of grounds for concluding a fixed-term employment contract

Legally significant circumstances under which a fixed-term employment contract is permitted include, firstly, the replacement of an employee who is temporarily absent for good reasons, and whose job is retained.

Secondly, this is the performance of temporary work for a period of up to two months, or seasonal work provided for by law. This is also a job placement in the Far North or a similar area, with the employee moving there for a given period.

The basis is employment in organizations that were created for a certain limited period of time (no more than 5 years) and will obviously cease to exist after this period; as well as placement in an organization for the purpose of performing obviously defined work for a period of up to 5 years.

Often, a fixed-term employment contract is concluded with employees to perform work that goes beyond the normal statutory activities of the organization (repair, reconstruction, etc.) or work with a temporary expansion of the volume of services provided or production for a period of no longer than 1 year.

This can also be the implementation of urgent work to prevent accidents, catastrophes, epidemics, accidents, epizootics, other emergency circumstances and their consequences, when such work is carried out for no more than 5 years.

Fixed-term employment contracts can be concluded with persons to perform work of a creative nature, concert organizations, circuses, film organizations, the media, including participation in the creation or performance of works, etc.

It is permissible to conclude a fixed-term contract with a person whose work is directly related to his professional training or internship; as well as with a person receiving full-time or evening education during his period of study.

A fixed-term employment contract is concluded with a person entering a part-time job, i.e. when a person is already in an employment relationship with another employer.

Another reason is to send an employee to work abroad if there is a referral from an authorized official or body.

The basis is also the admission of a person to work in organizations of consumer services and retail trade with a staff of up to 25 people, in other organizations with a staff of up to 40 people, as well as with employers who are individuals.

During the construction of a market economy, the practice of concluding fixed-term employment contracts for work that is permanent in nature became widespread. In this regard, the legislator consistently limits the possibility of concluding fixed-term employment contracts. Such restrictions are enshrined in the Labor Code. However, it must be taken into account that the absence of other work that could be performed under the terms of an employment contract concluded for an indefinite period forces the employee to agree to conclude a fixed-term employment contract. This circumstance may ultimately violate the employee’s constitutional right to work. Verifying the legality of concluding a fixed-term employment contract is one of the important tasks of the courts.

A fixed-term employment contract is concluded when the employment relationship cannot be established for an indefinite period, in the following cases:

a) taking into account the nature of the work ahead;

b) taking into account the conditions for its implementation;

c) in cases directly provided for by law.

In particular, fixed-term contracts are concluded:

– with employees of the prosecutor’s office for a period of up to five years (Federal Law of January 17, 1992 No. 2202-1 “On the Prosecutor’s Office of the Russian Federation”);

– with scientific and pedagogical workers of higher educational institutions, with the exception of those holding the positions of dean of the faculty and head of the department, for a period of up to five years (Federal Law of August 22, 1996 No.

No. 125-FZ “On higher and postgraduate professional education”);

Law of June 30, 2006 No. 90-FZ in Part 5 of Art. 58 of the Labor Code, amendments have been made according to which the issue of recognizing a fixed-term employment contract as an employment contract concluded for an indefinite period can only be decided by the court. Previously, this issue, in addition to the court, could be resolved by the body exercising state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms. These changes are due to the fact that: firstly, the question of recognizing an employment contract as concluded for an indefinite period arises, as a rule, when a dispute arises about reinstatement at work, and according to Art. 391 of the Labor Code, disputes of this category are considered only by the court; secondly, only in court can it be possible to comprehensively examine and verify the presence or absence of circumstances provided for by law under which it is possible to conclude a fixed-term employment contract.

Article 59 of the Labor Code as amended by Law No. 90-FZ of June 30, 2006 contains a list of persons with whom an employer can enter into fixed-term employment contracts. Moreover, this list is divided into two categories: 1) when the conclusion of a fixed-term employment contract is mandatory in force law; 2) when a fixed-term employment contract can be concluded by agreement of the parties, i.e. if there is mutual – employer and employee – expression of will to conclude such an agreement. Previously, the employer, at its discretion, could enter into a fixed-term or open-ended employment contract with the persons indicated in the list of persons with whom the employer has the right to enter into fixed-term employment contracts, which was in force until October 6, 2006. The introduction of new principles for concluding fixed-term employment contracts should contribute to respecting the rights of the parties to such an agreement.

A fixed-term employment contract must be concluded with employees:

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

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

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

– with persons sent to work abroad;

– to carry out work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work related to 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 predetermined period or to perform a predetermined job;

– with persons hired to perform a predetermined job in cases where its completion cannot be determined by a specific date;

– to perform work directly related to the internship and professional training of the employee;

– 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 state authorities and local self-government bodies, in political parties and others public associations;

– with persons sent by employment services to temporary work and public works;

– with citizens sent to perform alternative civil service;

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

- 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);

– with age pensioners entering work, 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 Far North and equivalent areas, if this is associated with moving to the place of work;

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

– with persons elected through a competition to fill the relevant position, conducted in the manner established 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, professional athletes in accordance with the lists of jobs, professions, positions of these workers, approved by the Government of the Russian Federation taking into account the opinion of the Russian Three Hundred -

the Royal Commission for the Regulation of Social and Labor Relations;

– with managers, deputy managers and chief accountants of organizations, regardless of their legal forms and forms of ownership;

– with persons studying full-time;

– with persons applying for part-time work;

– in other cases provided for by the Labor Code or other federal laws.

It should be borne in mind that, having concluded an employment contract with an employee for an indefinite period, the employer, as a rule, does not have the right to subsequently require him to conclude a fixed-term employment contract, including when circumstances arise in which the current legislation allows the possibility of concluding a fixed-term employment contract. agreement. In this regard, the entry into force of the Labor Code does not give the employer grounds to renew employment contracts with employees (including pensioners) if they are already working under a contract concluded for an indefinite period. Exceptions to the general rule are contained directly in the norms of federal legislation, for example in paragraphs 5-7 of Art. 25 of the Law on State Civil Service.

In the event of a dispute about the validity of concluding a fixed-term employment contract in accordance with Art. 56 of the Code of Civil Procedure, the obligation to prove the existence of circumstances that make it impossible to conclude an employment contract with an employee for an indefinite period rests with the employer. If the employer fails to prove such circumstances, it should be assumed that the employment contract with the employee is concluded for an indefinite period.

Among fixed-term employment contracts, employment contracts concluded for the duration of temporary (up to two months) work, as well as seasonal work, when, due to natural conditions, work can only be carried out during a certain period of time (season), have their own characteristics. These features are due to the fact that many general provisions that apply to both employment contracts concluded for an indefinite period and fixed-term employment contracts do not apply to fixed-term employment contracts with temporary and seasonal workers.

These agreements are subject to special rules provided for in Chapter. 45, 46 TK. The most characteristic of them are:

– rules that when hiring for a period of up to two months, employees cannot be subject to a probationary period, and when hiring for seasonal work, the probationary period cannot exceed two weeks;

– early termination of an employment contract at the initiative of temporary and seasonal workers is carried out with a written warning to the employer three calendar days in advance;

– the employer’s obligation to warn in writing, against receipt, of the upcoming dismissal in connection with the liquidation of the organization, reduction in the number or staff of employees of persons who have entered into an employment contract for a period of up to two months, at least three calendar days in advance, and employees engaged in seasonal work , – no less than seven calendar days.

In practice, it is not uncommon for an employer to repeatedly enter into a fixed-term employment contract with the same employee. The very fact of such a conclusion may indicate the permanent nature of the work performed under a fixed-term employment contract. In this regard, if during the trial it is established that there have been multiple conclusions of fixed-term employment contracts for a short period of time to perform the same job 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.

In accordance with Part 1 of Art. 58 of the Labor Code, 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 Labor Code or other federal laws.

A sample employment contract concluded for a specific period is given in Appendix 2.

After concluding an employment contract or simultaneously with its conclusion, the employer must issue an order to hire the employee from the date specified in the employment contract for the position stipulated by the employment contract.

Samples of orders for employment on the basis of an employment contract concluded for an indefinite period and an employment contract concluded for a certain period are given in Appendices 3 and 4, respectively.

Let's look at what's going on. How justified is this type of contract and when is it impossible to choose between a fixed-term and an open-ended contract?

Distinctive features

According to the Labor Code of the Russian Federation, two types of agreement can be distinguished, with the help of which an employee and an employer can formalize their relationship with each other. Namely:

1. urgent;
2. without specifying a deadline.

In the first case, the employee’s service life is a limited period of time, but not more than 5 years. This may be due to:

• the nature of the work;
• working conditions;
• with health or age restrictions;
• professional activity of a person.

Keep in mind: in case of concluding a fixed-term employment contract the employer does not have the right to refuse to provide an employee with annual or maternity leave, as well as sick leave. In this case, all relevant payments are retained for the employee.

Is the employee's consent required?

It is impossible to answer this question unequivocally. Each specific situation needs to be considered. In most cases, the consent of the future employee is still necessary.

On practice A fixed-term employment contract is concluded in cases where Registration of an employee for permanent employment is impossible for various reasons. For example, your health condition does not allow you to do this (this fact must be confirmed by an official certificate from a medical institution). Then his consent is needed.

Investigation workers, many scientists, professors, university teachers, and artists serve exclusively under fixed-term labor contracts, which are signed for a limited period. In most cases - for 5 years. After which they either extend it or refuse the services of this person. The employer does not need to obtain consent from these categories of specialists to sign a fixed-term contract, since there is no second option for formalizing the relationship by virtue of the law.

When consent is not needed

Let's look at it, there are no other options:

1. The employee will take the place of a temporarily absent person who is on long-term treatment, on maternity leave, on leave to care for a disabled child, etc. (i.e., absent for a valid reason and retains his place).
2. The services of this specialist are needed for a short period of time - no more than 2 months
3. An employee travels to another country. Example: to work in a branch, to improve qualifications, to undergo an internship.
4. The need for a worker depends on the time of year. Example: his services are needed in winter to clear roofs of snow and icicles.
5. The person will be employed in work not related to the main activity of the company. Example: an organization sells auto parts, and the roof in the warehouse is constantly leaking. The workers hired to reconstruct the warehouse building will operate under a fixed-term employment contract.
6. A group of specialists working on one project for a company and not planning further cooperation with it after completion of work on it.
7. Employees temporarily employed by an organization for an internship or internship.

By agreement: voluntary signing procedure

Part 2 of Article 59 of the Labor Code of the Russian Federation stipulates that In what cases is a fixed-term employment contract concluded? with mutual consent. Among them:

1. people with various diseases who can only work for a short period of time;
2. pensioners who came to work for the organization;
3. employees hired on a competitive basis;
4. workers whose future activities involve moving to areas with harsh climates (scientists, researchers, meteorologists, military);
5. arts and entertainment workers (actors, circus workers, TV presenters, reporters, singers);
6. people holding high-ranking positions (general directors, chief accountants and their deputies);
7. full-time students;
8. sailors;
9. employees combining work in several organizations;
10. workers fighting emergency situations (fires, floods, epidemics) and eliminating their consequences.

When is a fixed-term contract illegal?

And here In what cases is a fixed-term employment contract concluded? illegal:

1. when a person worked under an open-ended contract, and management forces him to quit and sign a fixed-term one;
2. when a person retires and continues to work, but under a fixed-term contract.

Conditions of signing

The main conditions for signing a fixed-term contract are as follows:

1. consent of both parties (except for the cases listed above when it is not necessary);
2. there are no contradictions with the law.

The employee and employer express a desire to limit their cooperation to a certain period of time. After its expiration, they can, by mutual agreement, decide to terminate or extend the contract.

When signing a fixed-term contract, no pressure should be put on either party. Otherwise, it may be declared invalid.

The employer must not only indicate in the contract the basis for its conclusion for a specific period, but also make sure that the applicant has documents confirming this fact (certificates, certificates, etc.).

What should include

Traditionally in case of concluding a fixed-term employment contract it must contain the following information:

1. personal data of the person being hired (full name);
2. the basis for signing a fixed-term contract;
3. an indication of the period for which it is concluded;
4. information about the employer (name of the organization, full name of the manager or person authorized to sign);
5. the amount of remuneration that the employee will receive if he conscientiously completes the assigned tasks (can be monthly or for the entire period of work);
6. date of signing and autographs of both parties.

How to register correctly

The execution of a fixed-term employment contract begins with its signing. After which an order is issued to hire the employee mentioned in it.

Then the clerk (personnel officer) makes an appropriate note in the work book about this fact. Indicates the date when the employee was hired, details of the order regarding this, the name of the organization, and signs.

Upon expiration of the contract, the clerk makes a corresponding note in the employee’s work book. Except in cases where the contract was decided to be extended or the employee was transferred to permanent work.

A fixed-term employment contract is concluded:

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

for the duration of temporary (up to two months) work; to perform seasonal work, when, due to natural conditions, work can only be carried out during a certain period (season);

with persons sent to work abroad; for carrying out work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work related to 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 predetermined period or to perform a predetermined job;

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

to perform work directly related to the internship and professional training of the employee;

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 state authorities and local self-government bodies, in political parties and other public associations;

with persons sent by employment services to temporary work and public works;

with citizens sent to perform alternative civil service;

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

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);

with age pensioners entering work, 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 Far North and equivalent areas, if this is related to moving to the place of work;

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

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

with 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, professional athletes in accordance with the lists of works, professions, positions of these workers, approved The Government of the Russian Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations;

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

with persons studying full-time;

with persons applying for part-time work;

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

COMMENT 1.

The commented article lists cases when the conclusion of fixed-term employment contracts is allowed.

In accordance with Art. 58 of the Labor Code of the Russian Federation, which provides for the division of all grounds for concluding a fixed-term employment contract into two groups, Art. 59 of the Labor Code of the Russian Federation defines a list of such grounds within each group. Part 1 of the commented article establishes cases when the conclusion of a fixed-term employment contract is mandatory for the parties, and in part 2 - cases when the parties have the right to establish a condition on the fixed-term nature of the employment contract on the basis of an agreement. 2.

The grounds for concluding an employment contract listed in Part 1 of the commented article are mandatory for the parties and predetermine the conclusion of a fixed-term employment contract in these cases. To include in an employment contract a condition on the urgent nature of the work on these grounds, the parties do not need to reach a special agreement.

As a rule, all the cases contained in Part 1 of the commented article meet the main criterion - the nature and conditions of the work to be performed do not allow the establishment of an employment relationship for an indefinite period.

The first among the cases of mandatory conclusion of a fixed-term employment contract is the conclusion of an employment contract for the duration of the duties of an absent employee, who retains his place of work. The Code, other laws and other regulatory legal acts determine cases when the employer is obliged to preserve the place of work for an absent employee. For example, an employee is on maternity leave until the child reaches the age of three (Article 256 of the Labor Code of the Russian Federation); sending an employee to advanced training without work (Article 187 of the Labor Code of the Russian Federation), performance by the employee of state and public duties (Article 170 of the Labor Code of the Russian Federation), etc. The employer’s obligation to preserve the place of work for an absent employee may also be provided for by a collective agreement or agreement , local regulations and even an employment contract. In these cases, it is permissible to conclude a fixed-term employment contract with an employee hired to perform the duties of a temporarily absent employee. The validity period of such an employment contract is determined by the time of absence of the main employee and the contract is subject to termination upon his return to work (Part 3 of Article 79 of the Labor Code of the Russian Federation).

When concluding a fixed-term employment contract on this basis, in the terms of its validity, it is recommended to indicate not a specific calendar date (for example, August 15, 2006 - the end of the vacation of an employee who is on maternity leave for up to three years), but a specific event - the employee's return to work from vacation, since she has the right to return from vacation at any time during this vacation. In this case, her early departure from vacation, regardless of the specific calendar date, is a legal and indisputable circumstance that terminates the fixed-term employment contract with her replacement employee.

The conclusion of a fixed-term employment contract for the duration of temporary (up to two months) work is permitted if the upcoming work is obviously temporary in nature. The qualifying features of the temporary nature of the work are: the maximum period for its completion is no more than two months and the employer’s one-time (episodic) need to perform it (i.e., such work should not be of a permanent nature). In the employment contract, the parties determine the specific period required to complete such work (2 weeks, 1 month, 45 days, etc.), the main thing is that it does not exceed the maximum permissible period - 2 months. Features of labor regulation for workers who have entered into an employment contract for a period of up to two months are determined by Art. 289-292 of the Labor Code of the Russian Federation (see also comments to them).

When concluding a fixed-term employment contract to perform seasonal work, it is necessary to take into account that seasonal work in accordance with Art. 293 of the Code recognizes work that, due to climatic and other natural conditions, is carried out during a certain period (season), not exceeding, as a rule, six months, and in some cases it is allowed to increase it by industry (inter-industry) agreements concluded at the federal level of social partnership (see also the commentary to the above article).

All types of work classified as seasonal are contained in special lists approved by the Government of the Russian Federation. The employer does not have the right to decide at his own discretion on the seasonal nature of work. Pending the adoption by the Government of the Russian Federation of the relevant regulatory legal act establishing lists of seasonal work, the List of Seasonal Work, approved, should be applied. Decree of the People's Commissariat of Labor of the USSR dated October 11, 1932 No. 185. In addition, for the purposes of pension provision, lists of seasonal work and seasonal industries are used, work at enterprises and organizations of which for a full season is counted towards the length of service for granting a pension for a year of work, approved. Decree of the Government of the Russian Federation dated 04.07.2002 No. 498 “On approval of the List of seasonal industries, work in organizations in which during the full season when calculating the insurance period is taken into account in such a way that its duration in the corresponding calendar year is a full year”, resolutions of the Council of Ministers of the RSFSR dated 07/04/1991 No. 381 “On approval of the List of seasonal work and seasonal industries, work in enterprises and organizations of which, regardless of their departmental affiliation, for a full season is counted towards the length of service for assigning a pension for a year of work” and the USSR Council of Ministers dated 09.29.1990 No. 983 “On approval of the List of seasonal work and seasonal industries, regardless of the departmental subordination of enterprises and organizations, work in which for a full season is counted towards the length of service for assigning a pension for a year of work.”

An employment contract concluded for the duration of seasonal work is terminated after a certain season (see Part 4 of Article 79 of the Labor Code of the Russian Federation and the commentary thereto).

The requirement to conclude a fixed-term employment contract with persons sent to work abroad does not contain any restrictions on the nature of the work assigned and the organizational and legal form of the employer sending the employee to work abroad, which allows us to conclude that the conclusion of such fixed-term employment contracts is admissible any employer (including individual entrepreneurs). However, the most common cases of concluding agreements on this basis are in the public sector in connection with the exercise of diplomatic, consular and representative functions. In accordance with Art. 337, 338 of the Labor Code of the Russian Federation, fixed-term employment contracts are concluded with employees sent to work in diplomatic missions and consular offices of the Russian Federation, in representative offices of federal executive authorities and government agencies of the Russian Federation abroad. The specifics of labor regulation for this category of workers are established by Chapter. 53 Code.

When concluding a fixed-term employment contract to carry out work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided, two grounds should be considered , the order of application of which is different.

In the first case, when the conclusion of an employment contract is conditioned by the performance of work that goes beyond the normal activities of the employer, it is important to correctly determine what activities are normal for the employer. In relation to legal entities, ordinary activities should be understood as those types of activities that are recorded in their constituent documents. Employers - individual entrepreneurs present a certain difficulty in determining the content of ordinary activities, since they participate in economic turnover without constituent documents. It seems that it is advisable to determine the directions of their activities based on the types of work they most often perform or services they provide. The list of works given in Part 1 of the commented article that goes beyond the normal activities of the employer (reconstruction, installation, commissioning) is approximate and is not limited by the legislator. To comply with the requirements of the law when concluding a fixed-term employment contract on this basis, it is important that such work is temporary in nature. At the same time, the period for their implementation cannot exceed the maximum period established for fixed-term employment contracts - five years.

In the second case, the conclusion of a fixed-term employment contract is associated with a change in the nature of the employer’s activities due to a temporary (up to one year) expansion of production or the volume of services provided. A distinctive feature that makes it possible to distinguish this basis from the previous one is the implementation of work within the normal activities of the employer, with a short-term increase in its volume. Examples of a temporary expansion of production or the volume of services provided may be an employer receiving an order that requires the involvement of additional workers, or seasonal fluctuations in consumer demand, for example, in the field of tourism services during the summer holidays. The maximum period for which an employment contract can be concluded on this basis is 1 year, however, the parties have the right to provide for a shorter period in the employment contract, depending on the period of the specific circumstances that led to the expansion of production.

The civil legislation of the Russian Federation allows the creation of legal entities for a certain period or to achieve a certain goal, which must be specified in the charter of the legal entity (Article 61 of the Civil Code of the Russian Federation). In this regard, labor legislation provides for limiting the validity of employment contracts with persons entering work in organizations created for a predetermined period or to perform a predetermined job, within the period of existence of the organization itself. In this regard, the Plenum of the Supreme Court of the Russian Federation, in Resolution No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” clarified that termination of an employment contract with employees on the basis of expiration of the employment contract can be carried out if the organization actually ceases its activities in connection with the expiration of the period for which it was created, or the achievement of the purpose for which it was created, without the transfer of rights and obligations by way of succession to other persons (clause 14).

It should be borne in mind that such an employment contract is also subject to the general condition on the maximum permissible duration of a fixed-term employment contract - no more than 5 years (see Article 58 of the Labor Code of the Russian Federation and the commentary thereto).

When concluding a fixed-term employment contract with persons hired to perform a clearly defined work in cases where its completion cannot be determined by a specific date, it is necessary to indicate in the employment contract the specific work for which the employee is involved (for example, construction of a facility, conducting an inventory, compiling annual balance sheet, etc.). The completion of the specified work will be the basis for termination of the employment contract due to the expiration of its validity. However, one should take into account the position of the Plenum of the Armed Forces of the Russian Federation, which, in Resolution No. 2 of March 17, 2004, indicated that when establishing during the trial the fact of 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 recognize the employment contract as concluded for an indefinite period (clause 14).

In the case of concluding a fixed-term employment contract to perform work directly related to the internship and professional training of the employee, it should be taken into account that such work is carried out in order to improve the employee’s qualifications and is limited directly to the duration of the internship (training). An agreement on internship or vocational training is concluded with the employer who sends his employee to undergo training.

An internship or vocational training is possible on the basis of a student agreement concluded directly with the student (see Articles 198-208 of the Labor Code of the Russian Federation and comments thereto).

A necessary condition for concluding a fixed-term employment contract in cases of election for a certain period to an elected body or to an elective position for paid work is the elective activity of the employee. The validity period of such an employment contract is determined by the period of election. For example, filling the positions of dean of a faculty or head of a department of a higher educational institution is carried out on the basis of elections, the procedure for which is determined by the charter of the educational institution (see Article 332 of the Code and the commentary thereto). The governing bodies of political parties and their regional branches are formed as a result of election (Article 24 of the Federal Law of July 11, 2001 No. 95-FZ “On Political Parties”). However, you should keep in mind the paid nature of this work.

The conclusion of a fixed-term employment contract in cases of employment 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 is not allowed with all employees hired for work in these bodies and organizations, but only with those whose job responsibilities are directly related to ensuring the activities of members or officials of these bodies (organizations). So, in accordance with Art. 38 of the Federal Law of 05/08/1994 No. Z-FZ “On the status of a member of the Federation Council and the status of a deputy of the State Duma of the Federal Assembly of the Russian Federation” a fixed-term service contract or a fixed-term employment contract is concluded with an assistant to a member of the Federation Council, a deputy of the State Duma for a period not exceeding the term of office member of the Federation Council, deputy of the State Duma.

Examples of such work may also include the duties of an assistant, secretary, adviser, assistant to the heads of local administrations, assistant to the party chairman, head of a public association, etc. The term of such an employment contract is established by agreement of the parties within the term of office of the relevant official or member of the elected body. Early termination of the powers of these persons entails the termination of employment contracts with employees hired to support their activities.

In accordance with the Law of the Russian Federation of April 19, 1991 No. 1032-1 “On Employment of the Population in the Russian Federation”, in order to provide additional social support for citizens looking for work, employment authorities can send such persons to temporary work and public works. The term of the employment contract with persons sent by the employment service authorities to temporary work and public works is determined by agreement of the parties. The conduct of public works is regulated by the Regulations on the organization of public works, approved. Decree of the Government of the Russian Federation dated July 14, 1997 No. 875.

When concluding a fixed-term employment contract with citizens sent to perform alternative civil service, it should be taken into account that alternative civil service is a special type of labor activity in the interests of society and the state, carried out by citizens in exchange for conscription service. The legal basis for its passage is formed by Art. 59 of the Constitution of the Russian Federation, Federal Law of July 25, 2002 No. 113-F3 “On alternative civil service”, Regulations on the procedure for performing alternative civil service, approved. by Decree of the Government of the Russian Federation of May 28, 2004 No. 256. Alternative civil service is possible as civilian personnel in organizations subordinate to federal executive authorities, executive authorities of constituent entities of the Russian Federation, local governments, in organizations of the Armed Forces of the Russian Federation, other troops, military formations and organs. Lists of types of work, professions, positions in which citizens performing alternative civil service can be employed, and organizations that provide for alternative civil service, approved. by order of the Ministry of Health and Social Development of Russia dated April 12, 2006 No. 286.

An employment contract with a citizen sent to perform alternative civil service is always of a fixed-term nature and is concluded for the period of its completion. One of the conditions for concluding a fixed-term employment contract on this basis is the existence of a decision by the draft commission to replace conscript military service with an alternative civilian service.

In addition to the cases listed above, a fixed-term employment contract is also subject to conclusion if such an obligation arises from the requirements of the Code or other federal laws. It should be borne in mind that no other legislative or regulatory legal act (for example, a law of a constituent entity of the Russian Federation or a resolution of the Government of the Russian Federation) can expand this list. 3.

Listed in Part 2 of Art. 59 of the Code, cases of concluding a fixed-term employment contract are of a dispositive nature, which presupposes the conclusion of a fixed-term employment contract on these grounds, not by virtue of a direct prescription of the law, but in connection with the initiative of the parties. The article also does not oblige the parties to justify the conclusion of a fixed-term employment contract on the listed grounds by the temporary nature and conditions of the upcoming work. For its conclusion, the will of the parties is sufficient. Any party, both the employee and the employer, has the right to initiate the conclusion of a fixed-term employment contract on any of the grounds provided for in Part 2 of the commented article. The parties must agree on this condition, otherwise the employment contract will not be concluded. It is not necessary to formalize an agreement to include in the employment contract a condition regarding the duration of its validity in the form of a separate document; it is sufficient to include this condition directly in the text of the employment contract signed by its parties.

One of these cases is Part 2 of Art. 59 of the Code calls for the conclusion of a fixed-term employment contract 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). In accordance with Art. 3 of the Federal Law of June 14, 1995 No. 88-FZ “On State Support of Small Business in the Russian Federation”, small business entities are understood as commercial organizations in the authorized capital of which the Russian Federation, constituent entities of the Russian Federation, public and religious organizations (associations), charitable and other funds does not exceed 25%, the share owned by one or more legal entities that are not small businesses does not exceed 25% and in which the average number of employees for the reporting period does not exceed the following maximum levels: in industry, construction or transport - 100 people; in agriculture - 60; in the scientific and technical field - 60; in wholesale trade - 50; in retail trade and consumer services - 30; in other industries and when carrying out other types of activities - 50 people. Small businesses also mean individuals engaged in entrepreneurial activities without forming a legal entity (individual entrepreneurs).

In the new edition of the commented article, this basis for concluding a fixed-term employment contract has undergone significant changes:

firstly, the legal status of employers-organizations and employers-individual entrepreneurs was equalized by establishing equal conditions for concluding fixed-term employment contracts with employees (previously, the condition on the number of employees did not apply to individual entrepreneurs);

secondly, the quantitative criteria for the number of employees, which serve as the basis for concluding a fixed-term employment contract, have been reduced from 40 to 35 employees (from 25 to 20 employees in retail trade and consumer services organizations);

thirdly, the right to conclude fixed-term employment contracts without taking into account the total number of employees of the employer was retained only by employers - individuals who are not individual entrepreneurs. The provision for this is contained in Art. 304 of the Code (see also the commentary to this article).

Thus, small businesses (organizations and individual entrepreneurs) have the right to conclude fixed-term employment contracts if the total number of their employees does not exceed 35 people (in the field of retail trade and consumer services - 20 people).

When concluding an employment contract with age pensioners, it is necessary to take into account that concluding a fixed-term employment contract is possible only with newly employed pensioners of age 196, i.e. with persons who, at the time of concluding the employment contract, have reached retirement age and who, in accordance with the pension The legislation provides for an old-age labor pension. It should be taken into account that age pensioners also include persons who have been assigned an early pension due to work in harmful and (or) dangerous working conditions, as well as difficult working conditions, work in the Far North or equivalent areas, etc. It is not allowed to re-sign a previously concluded open-ended employment contract to a fixed-term employment contract in connection with the employee reaching retirement age and being assigned an old-age pension in the prescribed manner.

As for persons who, for health reasons, in accordance with a medical report 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, the term of employment contracts concluded with them is determined by the duration that, according to the medical report, is provided for a given employee, taking into account his state of health.

A necessary condition for concluding a fixed-term employment contract with persons applying for work in organizations located in the Far North and equivalent areas is the fact that the employee moves to the Far North or equivalent areas to perform the work stipulated by the employment contract. Currently, the List of regions of the Far North and equivalent areas is in force, approved. Resolution of the Council of Ministers of the USSR dated November 10, 1967 No. 1029 “On the procedure for applying the Decree of the Presidium of the Supreme Soviet of the USSR dated September 26, 1967 “On the expansion of benefits for persons working in the regions of the Far North and in areas equated to regions of the Far North.”

When concluding a fixed-term employment contract to carry out urgent work to prevent disasters, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances, one should also be guided by the list of emergency circumstances specified in Art. 4 (part 4) and 722 (part 2) of the Code (see also comments to these articles). The specific duration of such an employment contract depends on the duration of the specified circumstances.

In accordance with Art. 18 of the Labor Code of the Russian Federation, labor relations on the basis of an employment contract arise as a result of election through competition to fill the corresponding position, if the law, other regulatory legal act or charter (regulations) of the organization determines the list of positions to be filled through competition and the procedure for competitive election to these positions. Thus, the conclusion of a fixed-term employment contract with persons selected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms, is possible not only for positions subject to filling through a competition on the basis of the law, but also for positions classified as such by the employer’s local regulations.

The legislation provides for the conclusion of fixed-term employment contracts as a result of a competition with the heads of federal state unitary enterprises (Resolution of the Government of the Russian Federation of March 16, 2000 No. 234 “On the procedure for concluding contracts and certification of heads of federal state unitary enterprises”), with scientific and pedagogical workers of higher educational institutions, for with the exception of the positions of dean of the faculty and head of the department (see Article 332 of the Code and commentary thereto).

The conclusion of fixed-term employment contracts is allowed 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, professional athletes. The list of such categories of workers must be approved by the Government of the Russian Federation, taking into account the opinion of the RTK.

A fixed-term employment contract with managers, deputy managers and chief accountants of organizations can be concluded regardless of the organizational and legal forms or forms of ownership of the organizations.

In accordance with Art. 273 of the Labor Code of the Russian Federation, the head of an organization is an individual who, in accordance with the Code, other federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of constituent entities of the Russian Federation, regulatory legal acts of local government bodies, constituent documents of a legal entity (organization) and local carries out the management of this organization in accordance with regulatory acts, including performing the functions of its sole executive body. The previous version of Art. 275 of the Code provided for the obligation to conclude an employment contract with the head of the organization for a period determined by the constituent documents or the contract itself. The new version of this article does not contain such a requirement, but clarifies that in the case of concluding a fixed-term employment contract, its duration is determined by the constituent documents of the organization or by agreement of the parties. It should be taken into account that the legislation in some cases provides for the obligation to conclude a fixed-term employment contract with the head of certain types of organizations. Yes, Art. 40 of the Federal Law of 02/08/1998 No. 14-FZ “On Limited Liability Companies” establishes that the sole executive body of a limited liability company (general director, president, etc.) is elected by the general meeting of the company’s participants for a period determined by the company’s charter.

A fixed-term employment contract can be concluded with persons studying full-time (schoolchildren, students, graduate students).

By agreement of the parties, the law allows the conclusion of a fixed-term employment contract with persons applying for part-time work. At the same time, the presence or absence of a term in an employment contract with a part-time worker has important legal significance for the procedure for terminating the employment contract. So, in accordance with Art. 288 of the Labor Code of the Russian Federation, in addition to the grounds provided for by the Code and other federal laws, an employment contract concluded for an indefinite period with a person working part-time may be terminated in the event of hiring an employee for whom this work will be the main one, about which the employer in writing form warns the specified person at least two weeks before termination of the employment contract. In relation to a fixed-term employment contract with a part-time worker, the Code does not provide for such a simplified termination procedure.

The Code or other federal laws may provide for other grounds for concluding a fixed-term employment contract by agreement of the parties. Yes, Art. 344 of the Labor Code of the Russian Federation provides for the possibility of concluding a fixed-term employment contract between an employee and a religious organization (see also the commentary to this article).

It is not allowed to establish additional grounds for concluding fixed-term employment contracts by other regulatory legal acts, except for the Code and other federal laws.