Article 59 of the Labor Code of the Russian Federation is urgent. Reasons for termination of a fixed-term employment contract. Prolongation by agreement of the parties

An employee whom the manager accepts as a member of the enterprise for a certain period is a temporary worker. With such a subordinate he always signs employment contract only for a specified period. IN this document The period of its validity must be specified. Otherwise, the contract is considered to be of unlimited duration, and the temporary worker is considered a permanent employee. The latter, in turn, has the right to monthly receipt wages and compensation for unused rest periods upon dismissal.

What you need to know

Most citizens carry out their official activities at enterprises and institutions of our state. Almost all of them work under an employment contract, which is concluded on However, the situations are different. Sometimes the head of an enterprise is forced to look for a replacement for a permanent employee who is on sick leave or on vacation. In this case, the organization often hires a temporary worker who performs the duties of an absent subordinate. After the departure of a permanent employee, a person working under a fixed-term contract is subject to dismissal.

Important

The head of an organization must always remember that not all citizens can sign a fixed-term employment contract. Article 59 of the Labor Code of the Russian Federation contains a list of persons with whom the formation of official relations is not prohibited, even for a certain period of time. These include the following:

People who are sent to work abroad;

Persons applying for implementation labor activity in organizations created only for a certain period;

Citizens accepted for execution certain work, the completion date of which is unknown in advance (for example, the construction of a private house);

People who were sent from the labor exchange to public works;

Persons sent to the civil service.

In addition, in cases established by law, it is possible for an employee to be hired under a fixed-term employment contract. Article 59 of the Labor Code of the Russian Federation provides for the following:

A citizen is hired to replace a temporarily absent employee;

If you need to perform work, the completion period of which is no more than 2 months;

Implementation of internship;

To carry out work that goes beyond the scope of the organization’s activities (for example, reconstruction of a building);

For the period of seasonal work (performing the duties of a wardrobe attendant).

A small characteristic

So, a temporary worker is a person who is hired for a specific position in an enterprise for established by contract term. Therefore, such an employee knows in advance that he will not be able to work permanently in this organization. After all, the date of completion of his official duties is fixed in advance in the employment contract.

Reception

Before hiring a new person for a temporary job, the head of the enterprise must make sure that his actions do not violate the rules labor legislation. That's the order. If the latter hires an employee to carry out seasonal work (for example, a gardener for the summer period or a cloakroom attendant at a clinic), then he has every right to sign a fixed-term employment contract with him.

In addition, the hiring of temporary workers is no different from the employment of those citizens who will serve in the organization on a permanent basis. Indeed, in cases specified by law, employees hired for a certain period of time must provide the employer with all the necessary documents (for example, a diploma, a certificate of no criminal record, etc.).

Nuances

If the head of an enterprise hires an employee for a period of up to two months, then he needs to know about all the existing features of such work activity. IN in this case there should be no trial period. After all, the person is already a temporary worker. The Labor Code of the Russian Federation also warns managers that if such an employee is hired to work on a weekend or holiday, the latter is entitled only to material remuneration for his work. He is not entitled to an additional day of rest.

Completion of work and payment

In practice, the head of a company often faces a number of difficulties when dismissing a temporary employee. And in most cases, he seriously violates labor laws. After all, not every employer remembers that before dismissing an employee who was hired for a position for a certain period of time, the latter must be notified three times in advance. calendar days before the date of termination of the fixed-term contract.

Therefore, many subordinates often file complaints with the prosecutor’s office and the labor inspectorate. To prevent this from happening, the employer must follow the norms of the current law even when dismissing an employee who was temporarily performing the duties entrusted to him.

Therefore, on the last day of the employee’s work, the HR specialist must prepare the corresponding order and all other documents related to the latter’s work. In certain cases, the employee immediately asks to see a certificate of his latest income. This document is required for registration with the employment service.

On the last day of the subordinate’s work, the employer must pay him in full. This means that the latter must transfer wages and additional remuneration for unused vacation by the temporary employee.

Translation

When carrying out official activities, it often happens that one of the employees goes on vacation or sick leave, and another person begins to perform his duties. But in this case, the latter has the right to receive additional income. After all, he will perform not only his duties, but also work for another employee. But how does this work out in practice?

The manager may offer the employee a transfer to a temporary position while maintaining his average income or the earnings of the employee whose duties he will perform. As a rule, the latter always agrees. The transfer of an employee is formalized by an appropriate order.

Also in this case, it is possible to combine two positions. Then the employee will perform his duties and the duties of the absent employee at the same time. This must be confirmed by an order and an additional agreement.

Recording in labor

So, as was written earlier, a temporary employee is hired only for the period established by the contract. But what will be written in his work book in this case? Everything here is actually quite simple.

First, the head of the enterprise signs an employment contract with the employee, which fixes the date of completion of the latter’s official activities. Then the HR specialist prints the order and makes an entry in the temporary worker’s work book. In this case, you may not immediately indicate the validity period of the employment contract. Because when dismissing a temporary employee, you will need to indicate in the work book the reason for the termination of the official relationship. In this case, the entry should contain the following content: “Dismissed due to the end of the period of validity of the employment contract”, paragraph two of the first part of Article 77 of the Labor Code of the Russian Federation.

By agreement

Here it is necessary to point out once again that when concluding an employment contract with an employee for a certain period of time, the head of the organization must comply with the requirements of the law. Otherwise, it will be impossible for him to avoid problems with the law. If a pensioner wants to get a job, then the boss has the right to offer him. By mutual agreement of the parties, a fixed-term contract can be concluded with full-time students and part-time students. Most often, the latter do not object to such a proposal from the head of the enterprise. After all, part-time workers are not the main employees, because they already have their main place of work. Entrepreneurs engaged in small businesses and employing less than thirty-five people can enter into fixed-term employment contracts with employees.

Conclusion

Every employee whom an employer employs only for a certain period must be aware that he will be dismissed after the end of his official duties. In practice, this is most often what happens. If a person was hired for two months, then it is prohibited to set him on a probationary period. In addition, when choosing an employee, even for a certain period, the head of the company needs to be more careful.

This is especially true in cases where the boss hires a pregnant woman to work during the absence of a permanent employee. After all, ending an employment relationship with such a subordinate is not so easy. Because she can ask her boss to transfer her to another position (after the departure of the permanent employee whose duties she performed) and extend the employment relationship with her until the birth.

[Labor Code of the Russian Federation] [Chapter 10] [Article 59]

A fixed-term employment contract is concluded:

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

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 work beyond the scope ordinary activities 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 practice, vocational training or additional professional education in the form of an internship;

in cases of election for a certain period to an elected body or to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies or officials in government bodies and bodies local government, 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 Russian Federation, work of an exclusively temporary nature is permitted;

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;

for 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 media workers mass 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 jobs, professions, positions of these workers, approved by the Government of the Russian Federation taking into account the opinion of the Russian Tripartite regulatory commissions social and labor relations;

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

with persons receiving full-time education;

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

with persons applying for part-time work;

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

2 comments on the entry “Article 59 of the Labor Code of the Russian Federation. Fixed-term employment contract"

Article 59. Fixed-term employment contract

Commentary on Article 59

In the previous version of Art. 59 in one row listed cases when a fixed-term employment contract must be concluded either due to objective obligations or due to legal requirements, as well as cases when a fixed-term employment contract can be concluded on the initiative of one of the parties. New edition The commented article divides these cases into two independent groups.
Part 1 of the commented article lists cases when the conclusion of a fixed-term employment contract is mandatory, since the employment contracts listed in this part of the article cannot be anything other than fixed-term. A fixed-term employment contract is concluded for the duration of the duties of an absent employee. Such an agreement is concluded when the absent employee retains his place of work (for example, while the employee is on parental leave or while the employee is on a long business trip, as well as in other cases provided for by labor legislation). The duration of the employment contract in these cases is determined by the time of absence of the employee, who, by law, retains his place of work. The date of return of the absent employee is the end date of the fixed-term employment contract.
A fixed-term employment contract is concluded for the duration of temporary (up to two months) work. The conclusion of such an agreement is possible provided that the work is obviously temporary in nature and cannot exceed two months. The specific term of the contract in this case is established by agreement of the parties. If the work is permanent, then concluding a fixed-term employment contract for a period of up to two months is unlawful (Articles 289 - 292 of the Labor Code and commentary thereto).
To perform seasonal work, a fixed-term employment contract is also concluded. Seasonal work is work that, due to climatic and other natural conditions, is carried out during a certain period (season), usually not exceeding six months. Lists of seasonal work, including individual seasonal work, which can be carried out over a period (season) exceeding six months, and the maximum duration of these individual seasonal works are determined by industry (inter-industry) agreements concluded at the federal level of social partnership.
A fixed-term employment contract is concluded with persons sent to work abroad (see Articles 337 - 341 of the Labor Code and commentary thereto). Fixed-term employment contracts are concluded with employees recruited to work at diplomatic missions and consular offices of the Russian Federation, as well as with employees sent to representative offices of federal executive authorities and state institutions of the Russian Federation abroad. For example, an employment contract is concluded with employees of diplomatic missions and consular offices for a period of up to three years. The term of the employment contract with employees of representative offices of federal executive authorities and government agencies abroad is determined by agreement of the parties on the basis of protocols concluded by the relevant bodies and institutions with the Russian Ministry of Foreign Affairs.
To carry out work that goes beyond the normal activities of the organization (reconstruction, installation, commissioning and other work), as well as to carry out work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided, a fixed-term employment contract is concluded. This provision provides two grounds for concluding a fixed-term employment contract:
a) to perform work outside the normal activities of the organization. The normal activities of an organization are determined by its organizational and registration documents. As an example, the legislator names such types of work as reconstruction, installation and commissioning work. However, the list of such works is open, since the specified norm also refers to other works. When concluding such an agreement, the law does not define its deadline, therefore, as a general rule, it should not exceed five years;
b) to carry out work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided. Unlike the previously considered case, these works are carried out as part of the organization’s normal activities and it is known that the need for them will continue for more than one year.
A fixed-term employment contract is concluded with persons entering work in organizations created for a predetermined period or to perform a predetermined job. The constituent documents of such an organization must necessarily state that it was created to perform a specific job and for a specific period (for example, a directorate for holding anniversary events, exhibitions, competitions, etc.). The term of an employment contract with persons entering work in such organizations cannot exceed the period stipulated by the constituent documents of this organization, however, in our opinion, the term of such an employment contract may be less than the period of activity of the organization due to the fact that the involvement of certain specialists is determined by the types (nature) as well as schedules (plans) of the work performed. 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 duties in the order of succession to other persons (Article 61 of the Civil Code).
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 8, part 1, article 59 of the Labor Code), such an agreement, by virtue of part 2 of art. 79 Labor Code is terminated upon completion of this work.
When installed during judicial trial the fact of multiple conclusions of fixed-term employment contracts for a short period to perform the same labor function, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period.
If it is established during the trial that the 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 (clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 17.03 .2004 N 2).
A fixed-term employment contract is concluded with persons hired to perform a clearly defined job in cases where its implementation (completion) cannot be determined by a specific date, which must indicate that it is concluded for the duration of the specific work (for example, drawing up a report , organization and conduct of elections, etc.). The basis for termination of such an employment contract will be the completion (completion) of the specified work.
A fixed-term employment contract is concluded to perform work directly related to the employee’s internship and professional training. The term of the contract in such cases is determined by the duration of the internship or the period vocational training. There are no internship periods in the legislation; they are determined by agreement of the parties to the contract based on the specialty in which the internship is taking place and the level of knowledge of the interns.
A fixed-term employment contract is concluded with persons elected for a certain period of time to an elected body or to an elective position for paid work. For example, for the position of dean of a faculty or head of a department of a higher educational institution (see Articles 17 and 332 of the Labor Code and commentary thereto).
A fixed-term employment contract is also concluded when applying for a job related to the direct support of the activities of members of elected bodies or officials in government bodies, local governments, as well as in political parties and other public associations. The law provides for the conclusion of a fixed-term employment contract to perform work that is directly aimed at ensuring the activities of an elected body or officials (for example, an assistant to a deputy, an adviser to the chairman (his deputies) of a legislative (representative) body, an adviser to the governor, an assistant to the party chairman, etc.). P.).
It should be noted that in accordance with the Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation” with persons holding positions established to assist persons holding public positions, managers government agencies, heads of territorial bodies of federal executive bodies and heads of representative offices of state bodies in the exercise of their powers, a fixed-term service contract is concluded, the conditions, content, procedure for conclusion and termination of which are regulated by this Law. It should be borne in mind that state civil servants and municipal employees are subject to labor legislation and other acts containing labor law norms, with the features provided for by federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of constituent entities Russian Federation on state civil service and municipal service.
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Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation” (as amended on November 21, 2011) // SZ RF. 2004. N 31. Art. 3215; 2006. N 6. Art. 636; 2007. N 10. Art. 1151; N 16. Art. 1828; N 49. Art. 6070; 2008. N 13. Art. 1186; N 30 (part 2). Art. 3616; N 52 (part 1). Art. 6235; 2009. N 29. Art. 3597; N 29. Art. 3624; N 48. Art. 5719; N 51. Art. 6159; 2010. N 5. Art. 459; N 7. Art. 704; N 49. Art. 6413; 2011. N 1. Art. 31; N 27. Art. 3866; N 29. Art. 4295.

A fixed-term employment contract is concluded with persons sent by the employment service authorities to temporary work and public works. The term of the contract in such cases is determined by agreement of the parties. In accordance with Art. 24 of the Law of the Russian Federation “On Employment of the Population in the Russian Federation”, a fixed-term employment contract for a period of up to six months is concluded with persons wishing to participate in public works.
According to Art. 6 of the Federal Law of July 25, 2002 N 113-FZ “On Alternative Civil Service” (as amended on March 9, 2010), a fixed-term employment contract is concluded with citizens performing alternative service for the period of service. The term of the contract is established by paragraphs 1 and 2 of Art. 16 of the Law.
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NW RF. 2002. N 30. Art. 3030; 2004. N 35. Art. 3607; 2006. N 1. Art. 22; N 29. Art. 3122; 2010. N 11. Art. 1176.

It should be borne in mind that Part 1 of the commented article provides, in addition to the listed cases, other cases defined by the Labor Code or other federal laws. For example, heads of consumer cooperation organizations created by consumer societies and (or) unions are appointed to positions for a period of up to five years (see Law of the Russian Federation of June 19, 1992 N 3085-1 “On consumer cooperation (consumer societies, their unions) in the Russian Federation" (as amended on March 21, 2002)).
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VSND and the Armed Forces of the Russian Federation. 1992. N 30. Art. 1788; NW RF. 1997. N 28. Art. 3306; 2000. N 18. Art. 1910; 2002. N 12. Art. 1093.

Thus, the list of cases when a fixed-term employment contract is concluded cannot be expanded by any other regulatory legal acts or agreements.
In contrast to Part 1 of the commented article, Part 2 provides for cases when, by agreement of the parties, a fixed-term employment contract can be concluded. Both the employee and the employer can initiate the conclusion of such an agreement. Thus, in the cases listed below, it is possible to conclude an employment contract both for a certain period and for an indefinite period. The conclusion of such contracts does not depend on the nature of the work to be performed or the conditions for its implementation, i.e. requirements of Art. 58 TC do not apply. However, it must be borne in mind that such an employment contract is concluded only by mutual agreement between the employee and the employer. If the court, when resolving a dispute about the legality of concluding a fixed-term contract, establishes that it was concluded by the employee involuntarily, the court applies the rules of a contract concluded for an indefinite period (clause 13 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).
The criteria allowing the conclusion of a fixed-term employment contract with employers - small businesses - have been changed. The right to conclude fixed-term employment contracts remains only with employers with up to 35 employees, and in retail trade and consumer service organizations - up to 20 people. The concept of small businesses is contained in Federal Law dated July 24, 2007 N 209-FZ “On the development of small and medium-sized businesses in the Russian Federation” (as amended on July 1, 2011). Such an agreement can be concluded for a period of no more than five years.
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NW RF. 2007. N 31. Art. 4006; N 43. Art. 5084; 2008. N 30 (part 1). Art. 3615; N 30 (part 2). Art. 3616; 2009. N 31. Art. 3923; N 52 (part 1). Art. 6441; 2010. N 28. Art. 3553; 2011. N 27. Art. 3880.

A fixed-term employment contract can be concluded with old-age pensioners entering work. The new edition of the commented article clarifies that the conclusion of a fixed-term employment contract applies only to age pensioners, i.e. for persons who have already been assigned a pension, taking into account age and length of service. If the employee does not have the necessary conditions To assign a pension, even if the employee has reached retirement age, an employment contract is concluded with such employee on general terms. Age pensioners also include persons who have been assigned a pension on preferential terms (due to harmful and difficult working conditions).
Thus, one of the parties to the employment contract is the person who has acquired the status of a pensioner, i.e. has reached retirement age and has been assigned an old-age pension.
Part 2 of this norm is applicable to persons who are allowed to work temporarily for health reasons. The state of health and duration of work must be established by a medical report (for example, medical and social examination institutions, clinical expert commissions). The term of the employment contract is determined by agreement of the parties and cannot exceed that specified in the medical report.
A fixed-term employment contract is concluded with persons applying for work in organizations (enterprises) located in the regions of the Far North and equivalent areas. However, such an agreement can only be concluded with those persons who have moved to their place of work from other regions of Russia. The list of regions of the Far North and equivalent areas was approved by Resolution of the Council of Ministers of the USSR dated November 10, 1967 N 1029 (as amended on January 3, 1983).
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SP USSR. 1967. N 29. Art. 203; 1983. N 5. Art. 21.

It should be borne in mind that a fixed-term employment contract can be concluded with local residents, those who permanently reside in the regions of the Far North and equivalent areas, only on the general basis provided for in Art. 58 Labor Code (see Art. 313 - 327 Labor Code and commentary thereto).
However, it must be borne in mind that the conclusion of a fixed-term employment contract may be considered justified if the work is temporary due to certain circumstances.
To carry out urgent work to prevent accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances (earthquakes, fires, floods, etc.), a fixed-term employment contract is also concluded. The term of the employment contract is determined by agreement of the parties, since the law does not define either the minimum or maximum terms of such an agreement. It seems that the term of the employment contract in these cases may be determined by the completion date of work to eliminate the circumstances specified in this norm (for example, the completion of work to eliminate an accident, catastrophe, earthquake, etc.).
A fixed-term employment contract may be concluded with persons selected through a competition to fill the relevant position; with scientific, teaching and other workers based on the results of a competition held in the manner established by law (or other regulatory act). The basis for concluding a fixed-term employment contract with these categories of workers is the fact that the person passed the competition (see Article 332 of the Labor Code and the commentary thereto).
On the basis of a competition, positions of researchers, heads of laboratories, departments, and sectors in research institutions are filled (see Article 18 of the Labor Code and commentary thereto).
A fixed-term employment contract can be concluded with creative workers of the media, cinema organizations, theaters, theatrical and concert organizations, circuses and other persons who participate in the creation and (or) performance (exhibition) of works. The list of these professions, in accordance with which fixed-term employment contracts are concluded, was approved by Decree of the Government of the Russian Federation of April 28, 2007 N 252, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations.
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NW RF. 2007. N 19. Art. 2356.

A fixed-term employment contract is concluded with managers, their deputies and chief accountants of organizations, regardless of their organizational and legal forms and forms of ownership (see Article 275 of the Labor Code and commentary thereto).
A fixed-term employment contract with full-time students can be concluded not only with students, but also with graduate students, and not only for the period of their holidays, but also for other periods. However, it should be borne in mind that the work they perform should not interfere with the educational process.
Since the legislator has not determined the term of the employment contract with students (graduate students) studying full-time, it is established on a general basis (but not more than five years) or the term of the contract may be determined by the period of study (but not more than five years). When concluding a fixed-term employment contract with persons studying full-time, the employer, in addition to the documents provided for by the Labor Code, may, in our opinion, require a certificate confirming the fact of the student’s (postgraduate) full-time education.
A fixed-term employment contract can be concluded with persons who are employed part-time. Part-time work can be performed by an employee as at the place of his main job ( internal part-time job), and from other employers (external part-time work). Part-time work is allowed only during free time from the main job (see Articles 282 - 288 of the Labor Code and commentary thereto).
Other cases when it is possible to conclude fixed-term employment contracts, in addition to those contained in Part 2 of the commented article, may be provided for by the Labor Code and other federal laws.

Article 59. Fixed-term employment contract

Commentary on Article 59

1. Article 59 contains two parts, each of which provides for different types of work (cases), for the performance of which a fixed-term employment contract is concluded with the employee.
Lists of works (cases) provided for in both Part 1 and Part 2 of Art. 59 are not exhaustive. The Labor Code or other federal laws may provide for other cases when the conclusion of a fixed-term employment contract is either mandatory by law or permitted by agreement of the parties to the employment contract. Since in Art. 59 we are talking about the Labor Code or another federal law; neither the law of a subject of the Russian Federation, nor the decree of the President of the Russian Federation, nor the decree of the Government of the Russian Federation, nor any other subordinate regulatory legal act can establish any additional grounds (cases) for concluding a fixed-term employment contract.
2. Cases (types of work) listed in Part 1 of Art. 59, correspond general criterion concluding a fixed-term employment contract, formulated in Part 2 of Art. 58 TK. That is, all the cases listed in it determine the urgent nature of the labor relationship.
Thus, the conclusion of a fixed-term employment contract in the areas listed in Part 1 of Art. In 59 cases it is determined by the very nature of the work or the conditions of its implementation, and is therefore mandatory.
Part 1 art. 59 names 11 specific cases when a fixed-term employment contract is concluded with an employee:
1) for the duration of the duties of a temporarily absent employee. Such an employment contract is concluded when an absent employee, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, retains his place of work (for example, while the employee is on a long business trip , on maternity leave). The term of the employment contract in this case depends on the time of the absent employee’s return to perform his labor (official) duties. Since the law speaks of the temporary absence of an employee whose place of work (position) is retained, a fixed-term employment contract cannot be concluded to perform the duties of a vacant position until another permanent employee is hired for this position;
2) to perform temporary (up to 2 months) work, as well as seasonal work, when, due to natural conditions, work can only be carried out during a certain period (season), not exceeding, as a rule, 6 months (see commentary to Art. 293).
Concluding a fixed-term employment contract for a period of up to 2 months is possible provided that the work is obviously temporary, i.e. it is known in advance that it will last no more than 2 months (for example, during the preparation of the annual report). In this case, the contract by agreement of the parties must determine the specific term of the employment contract within 2 months (3 weeks, 1 month, 1.5 months, etc.).
It will be unlawful to conclude a fixed-term employment contract for a period of up to 2 months to perform work that is permanent for the employer.
Concluding a fixed-term employment contract to perform seasonal work is permitted provided that this work is provided for in a special list of seasonal work. Lists of seasonal work, incl. individual seasonal work, the implementation of which is possible during a period (season) exceeding 6 months, and the maximum duration of these individual seasonal work are determined by industry (inter-industry) agreements concluded at the federal level of social partnership (Part 2 of Article 293, see comment. To her).
Concluding a fixed-term employment contract for a specific season to perform work not covered by the above list will be considered unlawful;
3) with persons sent to work abroad. It does not matter to which organization abroad the employee is sent. These may be diplomatic missions and consular offices of the Russian Federation abroad, as well as representative offices of federal executive authorities and government agencies of the Russian Federation, commercial organizations, scientific and educational institutions and etc.;
4) to carry out work that goes beyond the normal activities of the employer, as well as to carry out work related to a deliberately temporary (up to 1 year) expansion of production or the volume of services provided.
In this case, the usual activities of the employer should be understood as those types of work that correspond to the main directions of the organization’s activities as enshrined in its charter.
As an example of work that goes beyond the normal activities of an organization, the law names reconstruction, installation, and commissioning work. Depending on the nature (type) of the organization’s normal activities, this may include other work, such as repairs and construction. However, in all cases, work that goes beyond the normal (core) activities of the organization, for which fixed-term employment contracts can be concluded, must be temporary (urgent) in nature. Since the law does not establish any special deadline for which such an employment contract can be concluded, the term of the employment contract is determined in each specific case by agreement of the parties based on specific circumstances and the period of time during which there remains a need to perform work beyond outside the normal activities of the organization. Here the general rules on the maximum term of the employment contract established by Art. 58 TK, i.e. 5 years.
Unlike an employment contract concluded to carry out work outside the scope of the employer’s normal activities, the term of an employment contract concluded in connection with the need to temporarily expand production or the volume of services provided is limited. It cannot exceed one year. This is due to the fact that work under such an agreement is carried out as part of the organization’s normal activities and the need to expand production or the volume of services provided is limited to certain time limits, known to the employer.
The specific validity period of an employment contract for the performance of work related to a deliberately temporary expansion of production or the volume of services provided is determined within one year by agreement of the parties. For example, due to the increase in the number of tourists in summer time and, in connection with this, expanding the volume of services provided to hotels, cafes, restaurants, transport organizations and others can hire an additional number of workers by concluding employment contracts with them for a certain period (1, 2, 3 months, etc.);
5) with persons entering work in organizations created for a predetermined period of time or to perform a predetermined job.
The fact that an organization was created for a certain period or only to perform a certain job must be recorded in the charter of this organization. The charter of the organization also defines the specific period of time for which it was created or during which the work will be completed, the implementation of which is the purpose of creating the organization (for example, for 2, 3, 4 years).
The term of an employment contract with persons entering an organization created for a predetermined period of time or to perform a predetermined job 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 (clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2);
6) with persons hired to perform obviously defined work in cases where its implementation (completion) cannot be determined by a specific date.
In these cases, the employment contract with employees must indicate that it is concluded for the duration of this particular work (for example, during the renovation of an office, during the construction of a facility). The completion (completion) of the specified work will be the basis for termination of the employment contract due to the expiration of its validity. At the same time, it should be borne in mind that if during the trial it is established 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 ( clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2);
7) to perform work directly related to the employee’s internship or professional training. In this case, the employment contract is concluded for the period of internship or vocational training.
Internship or vocational training of employees in an organization can be carried out either on the basis of an agreement with another organization that sent its employee for an internship or vocational training, or on the basis of an apprenticeship agreement concluded by the organization with the student himself (see commentary to Article 198 - 208);
8) in case of election for a certain period to an elected body or to an elective position for paid work. For example, for the position of rector of a state or municipal higher educational institution, dean of a faculty or head of a department of a higher educational institution. According to Art. 12 of the Law on vocational education, art. 332 of the Labor Code, these positions are filled on the basis of elections held in the manner established by the charter of the educational institution (see Article 17, 332 of the Labor Code);
9) when applying for a job related to the direct support of the activities of members of elected bodies or officials in state authorities and local governments, in political parties and other public associations. In this case, we are talking about work related to directly supporting the activities of members of these bodies or officials. This means that not all persons applying for work in these elected bodies can be entered into a fixed-term employment contract. We are talking about agreements concluded to perform work that is directly aimed at ensuring the activities of members of the relevant elected bodies or officials (for example, work as an assistant, secretary, adviser to the governor; assistant, assistant to the party chairman).
The term of the employment contract in these cases is established by agreement of the parties within the term of office of the relevant elected body or official.
Early termination of the powers of certain bodies or officials should entail the termination of employment contracts with persons hired to ensure the specified activities;
10) with persons sent by the employment service authorities to temporary work and public works. Such work is organized as additional social support citizens looking for work. The term of the employment contract for such work is determined by agreement of the parties.
If the work to which a citizen is directed by the employment service is permanent, concluding a fixed-term employment contract with him is not allowed;
11) with citizens sent to perform alternative civil service. When concluding an employment contract with this category of citizens, it should be borne in mind that the status of citizens performing alternative civil service is established by Federal Law of July 25, 2002 N 113-FZ “On Alternative Civil Service” (SZ RF. 2002. N 30. Art. 3030) in accordance with the Constitution of the Russian Federation. Alternative civil service is a special type of labor activity in the interests of society and the state, carried out by citizens in return military service on call. The procedure for sending citizens to alternative civil service is determined by the said Law, other federal laws, and the Regulations on the procedure for performing alternative civil service, approved. Decree of the Government of the Russian Federation of May 28, 2004 N 256 (SZ RF. 2004. N 23. Art. 2309), and other regulatory legal acts of the Russian Federation adopted in accordance with them.
The labor activity of citizens performing alternative civil service is regulated by the Labor Code, taking into account the features provided for by the specified Federal Law.
In accordance with Art. 5 of this Law, the period of alternative civil service is 1.75 times longer established by law on military duty, the period of military service is 21 months for citizens sent to serve it after January 1, 2008. The period of alternative civil service for citizens undergoing this service in organizations of the Armed Forces of the Russian Federation, other troops, military formations and bodies is 1.5 times greater than the period of conscription military service established by the Law on Military Duty and is 18 months for citizens sent for it. passing after January 1, 2008.
In accordance with the specified deadlines, the term of the employment contract with citizens sent to perform alternative civil service is determined. When concluding an employment contract, the parties do not have the right to establish a different duration of its validity.
3. Unlike part 1 of the commented article, according to which the conclusion of an employment contract for a certain period due to the nature of the work to be done or the conditions for its implementation is mandatory, part 2 of the article provides a list of cases when the conclusion of a fixed-term employment contract is allowed by agreement of the parties . Moreover, by agreement of the parties, a fixed-term employment contract listed in Part 2 of Art. In 59 cases, it can be concluded without taking into account the nature of the work to be done or 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, i.e. if it is concluded on the basis of the voluntary consent of the employee and the employer. If the court, when resolving a dispute 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 (clause 13 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).
According to Part 2 of the commented article, by agreement of the parties, a fixed-term employment contract can be concluded:
1) with persons entering work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people).
The concept and types of small businesses are defined by the Federal Law of July 24, 2007 N 209-FZ “On the development of small and medium-sized businesses in the Russian Federation” (SZ RF. 2007. N 31. Art. 4006). In accordance with Art. 3 small and medium-sized businesses - economic entities (legal entities and individual entrepreneurs), classified in accordance with the conditions established by this Federal Law, as small enterprises, incl. to micro- and medium-sized enterprises.
According to Art. 4 small and medium-sized businesses include consumer cooperatives and commercial organizations included in the Unified State Register of Legal Entities (with the exception of state and municipal unitary enterprises), as well as individuals entered into the Unified State Register of Individual Entrepreneurs and carrying out entrepreneurial activity without forming a legal entity (hereinafter referred to as individual entrepreneurs), peasant (farm) enterprises that meet the following conditions:
— for legal entities — the total share of participation of the Russian Federation, constituent entities of the Russian Federation, municipalities, foreign legal entities, foreign citizens, public and religious organizations(associations), charitable and other funds in the authorized (share) capital (mutual fund) of these legal entities should not exceed 25% (except for the assets of joint-stock investment funds and closed-end mutual investment funds), the share of participation owned by one or more legal entities, which are not small and medium-sized businesses, should not exceed 25%;
— the average number of employees for the previous calendar year should not exceed the following maximum values ​​of the average number of employees for each category of small and medium-sized businesses:
a) from 101 to 250 people inclusive for medium-sized enterprises;
b) up to 100 people inclusive for small enterprises; Among small enterprises, microenterprises stand out - up to 15 people;
— revenue from the sale of goods (work, services) excluding value added tax or the book value of assets (residual value of fixed assets and intangible assets) for the previous calendar year should not exceed the limit values ​​​​established by the Government of the Russian Federation for each category of small and medium-sized businesses .
Newly created organizations or newly registered individual entrepreneurs and peasant (farm) enterprises during the year in which they are registered can be classified as small and medium-sized businesses if their indicators of the average number of employees, revenue from the sale of goods (work, services) or the book value of assets (residual value of fixed assets and intangible assets) for the period elapsed from the date of their state registration, do not exceed the limit values ​​​​established by the said article.
The average number of employees of a micro-enterprise, small enterprise or medium-sized enterprise for a calendar year is determined taking into account all its employees, incl. employees working under civil contracts or part-time, taking into account actual time worked, employees of representative offices, branches and other separate divisions of the specified micro-enterprise, small enterprise or medium-sized enterprise;
2) 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.
It is necessary to pay attention to what the law says about age pensioners entering work, i.e. about those who for the first time or again (after dismissal) enter into an employment contract with this employer. In this regard, the employer has no right, incl. and with the consent of the employee who is in an employment relationship with him and has reached retirement age, renew the employment contract concluded with this employee for an indefinite period into a fixed-term employment contract. It should be borne in mind that the number of old-age pensioners includes persons who have reached retirement age and who, in accordance with pension legislation, have been assigned an old-age pension. If a citizen has reached the age required to assign a pension, but in accordance with pension legislation has not acquired the right to it or the pension has not been assigned to him due to any other circumstances, he cannot be considered a pensioner and, therefore, the rules for concluding a fixed-term employment contract provided for in the commented article norm, should not be applied to it.
The fact that an employee due to health reasons can perform work of an exclusively temporary nature must be established by a medical report. A medical report of this kind has the right to issue only the body or institution to which such a right is granted (for example, medical and social examination institutions).
The term of the employment contract is determined in this case based on the duration that, according to a medical report, is allowed for a given employee in accordance with his state of health. The employer does not have the right, at its discretion, to set for the employee a term of an employment contract of greater or lesser duration than that prescribed by the medical report;
3) 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. Since the law connects the possibility of concluding a fixed-term employment contract with these persons with their relocation to their place of work in organizations located in the regions of the Far North and equivalent areas, this rule should not apply to citizens permanently residing in these areas and localities. A fixed-term employment contract is concluded with them on the grounds specified in Part 1 of Art. 59, by agreement of the parties in the cases specified in Part 2 of the same article (for example, when applying for a part-time job), as well as in other cases provided for by the Labor Code or other federal laws.
The list of regions of the Far North and equivalent areas was approved by Resolution of the Council of Ministers of the USSR of November 10, 1967 N 1029 (SP USSR. 1967. N 29. Art. 203) and is valid today as amended. Resolution of the Council of Ministers of the USSR of January 3, 1983 N 12 (SP USSR. 1983. N 5. Art. 21) with additions and amendments made by the legislation of the Russian Federation;
4) 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 (for example, to eliminate the consequences of a flood, fire). Since the law does not establish a minimum or maximum term, for which an employment contract can be concluded under the specified circumstances, it is determined by agreement of the parties. If the term of the employment contract does not exceed 2 months, the resulting labor relations are regulated taking into account the specifics established by Chapter. 45 Labor Code (see commentary to Art. 289 - 292);
5) 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 in accordance with the lists of works, professions, positions of these workers, approved by the Government RF, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations. Decree of the Government of the Russian Federation dated April 28, 2007 N 252 approved the List of professions and positions of creative workers in the media, cinematography organizations, television and video crews, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, the specifics of labor activity of which are established by the Labor Code of the Russian Federation;
6) with managers, deputy managers and chief accountants of organizations. It does not matter what the organizational and legal form and form of ownership of these organizations is - joint stock company, limited liability company, state unitary enterprise etc.
The validity period of the employment contract with the head of the organization in accordance with Part 1 of Art. 275 of the Labor Code is determined by the constituent documents of the organization or by agreement of the parties. That is, by agreement of the parties, the term of the employment contract with the head of the organization is determined if it is not established by the constituent documents of the organization;
7) with persons studying full-time;
8) with persons applying for part-time work (on the procedure and conditions for concluding an employment contract for part-time work, see the commentary to Articles 282 - 288).
4. In addition to the cases expressly provided for in Part 2 of Art. 59, the conclusion of a fixed-term employment contract by agreement of the parties is also permitted in other cases provided for by the Labor Code or other federal law. So, in accordance with Art. 332 of the Labor Code, by agreement of the parties, fixed-term employment contracts can be concluded to fill positions of scientific and pedagogical workers in a higher educational institution.
5.According to general rules concluding a fixed-term employment contract established by Art. 58 of the Labor Code, a fixed-term employment contract can be concluded either in cases where the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation (Part 1 of Article 59), or by agreement of the parties without taking into account the above-mentioned circumstances in cases provided for by the Labor Code or other federal law (Part 2 of Article 59). However, in some cases the Labor Code provides for the conclusion of a fixed-term employment contract without taking into account these general rules. So, according to Part 14 of Art. 332 of the Labor Code, a fixed-term employment contract is concluded with the vice-rectors of a higher educational institution. This norm is set out in imperative form; therefore, the conclusion of a fixed-term employment contract with these employees is mandatory by virtue of a direct requirement of the law. However, neither by the nature nor by the conditions of performance, work as a vice-rector of a higher educational institution does not relate to work for the performance of which it is impossible to conclude an employment contract for an indefinite period. Thus, by providing for the mandatory conclusion of a fixed-term employment contract with the vice-rectors of a higher educational institution, the legislator showed obvious inconsistency in regulating the relations in question (see commentary to Article 332).

Fixed-term employment contract: instructions for use

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 language, 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 comprehensive. 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 given 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 for child care, but also annual paid leave, or leave without pay), temporary transfer according to a medical certificate for another job, the employee’s performance of state or public duties, undergoing a medical examination or advanced training while taking time away from work.

Let's note one more important point: It is impossible to draw up a fixed-term employment contract, according to 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 the industry agreement or normative act. 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 column “by” of this order The expiration date of an 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

Following legal basis to conclude a fixed-term employment contract - this is the performance of work that goes 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.

Art. 59 Labor Code of the Russian Federation: official text

Art. 59 Labor Code of the Russian Federation outlines the circle of persons with whom it is mandatory or possible to conclude a fixed-term employment contract. In the article we will tell you when this is required and when it is allowed, and also answer the most common questions related to the conclusion of such agreements and the application of rules Article 59 of the Labor Code.

What does the article talk about? 59 of the Labor Code of the Russian Federation with comments 2015–2016?

An employment contract (EA) for a specific period can only be concluded in cases where an open-ended agreement is not possible due to the nature of the work proposed or the circumstances in which it will be performed. If there are no grounds for limiting the contract to a time frame, it is recognized as concluded for an indefinite period. The employer’s evasion from concluding a permanent contract in this case may entail liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation.

Art. 59 Labor Code of the Russian Federation with comments clearly defines the categories of persons and cases when the conclusion of an urgent TD is mandatory, and when it is allowed by agreement of the parties. We'll talk about them further.

In what cases, according to Article 59 of the Labor Code of the Russian Federation, is a fixed-term employment contract required (Part 1 of Article 59 of the Labor Code of the Russian Federation)?

Conclude a TD limited in time, Article 59 of the Labor Code of the Russian Federation requires with a candidate being employed:

• in the place of a temporarily replaced employee, whose place must be retained in his absence (a fairly common case is registration of an urgent TD in place of a maternity leave);
• to perform temporary work for a period of no more than 2 months;
• for seasonal work (for example, in agriculture);
• for work abroad;
• for work that is not typical of the candidate’s normal activities (they can be called one-time - reconstruction, installation, commissioning, etc.), as well as for a deliberately temporary (up to a year) expansion of the business;
• to an organization that was created for a clearly defined period or to perform a clearly defined job;
• to perform any work in cases where its completion cannot be determined by a specific date (for example, office renovation, if the completion date is initially unknown);
• for the duration of practice, vocational training, internship;
• for work in elected bodies;
• in the direction of the employment service for temporary and public work;
• for alternative civil service;
• in some other cases in accordance with the Labor Code of the Russian Federation or other federal laws.

When is it allowed to conclude an agreement with an employee for a limited period (Part 2 of Article 59 of the Labor Code of the Russian Federation)?

According to Art. 59 Labor Code of the Russian Federation fixed-term employment contract by agreement with the employee may be:

• employers (firms and individual entrepreneurs) – small businesses employing less than 35 people (less than 20 people in retail and consumer services);
• with old-age pensioners, as well as with persons who, for medical reasons, can only work in temporary jobs;
• “northern” companies if employment requires moving to the place of work;
• to carry out urgent work during various emergencies, both to prevent them and to eliminate the consequences;
• with persons elected to positions through competition;
• with creative workers of the media, cinema, theaters, circuses, etc. - according to the list from the Decree of the Government of the Russian Federation dated April 28, 2007 No. 252;
• with managers, their deputies, chief accountants, regardless of the legal form and form of ownership of the company;
• with full-time students;
• with crew members of sea vessels, inland navigation vessels and mixed (river - sea) navigation vessels registered in the Russian Maritime Register of Shipping;
• for part-time work;

• in other cases, in accordance with the Labor Code of the Russian Federation or other federal laws.

In these cases (part 2 Art. 59 TK) the nature of the work and the conditions of its implementation do not play a role. The parties agree to temporary employment, which means that the TD can be urgent.

For how long is temporary employment possible?

The issue of the duration of temporary TD is regulated by Art. 58, not Art. 59 Labor Code. However, only a maximum of 5 years has been established. The minimum terms are not specified anywhere. Which means they can be anything. It all depends on the job for which a new, albeit temporary, member of the workforce is hired.

This period must be specified in the contract. At the same time, as follows from the rules Article 59 of the Labor Code of the Russian Federation, it can be determined not only by a calendar date, but also by some event. For example, the departure of the replaced employee, the end of work or the season, etc.

What conditions, in addition to the validity period, must be included in a fixed-term employment contract?

The contract must describe all the circumstances and reasons why it is limited in time. This is directly required by Art. 57 of the Labor Code of the Russian Federation, which establishes requirements for the content of trade agreements in general and a fixed-term contract in particular.

A detailed procedure for drawing up an urgent TD and its sample can be found in the article.

Is a record of work under a fixed-term contract entered into the work book?

Of course they do. Work books of conscripts are filled out according to general rules.

However, an indication that the contract is urgent is not made in the admission record, since this is not provided for by the regulations governing the maintenance and execution of books.

Moreover, the reflection of this information may be regarded as a violation of labor legislation and entail liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation.

The fact that an employee worked under a contract limited in time can only be found out if he is dismissed due to the expiration of the TD - when, in order to justify the dismissal, the employer refers to clause 2, part 1, art. 77 Labor Code of the Russian Federation.

Is it allowed to extend an employment contract concluded for a certain period?

The law provides for the possibility of extending an urgent TD, but in exceptional cases.

One of them is the pregnancy of a woman working under such a contract. If the contract ends while the employee is pregnant, then, at her request and with appropriate medical confirmation, the urgent TD with her must be extended until the end of the pregnancy, and in the case of the birth of a child, until the end of maternity leave (we are talking about maternity leave, not to be confused with maternity leave!).

Read about calculating maternity leave.

The remaining cases of extension are specific and less common; they concern individual employees of some educational organizations and athletes. Therefore, we will not consider them.

This exhausts the legally established list of situations when the contract can be extended. However, from the practice of the courts it follows that an extension is possible in other cases by agreement of the parties. The main thing is that the requirements of Art. 59 Labor Code of the Russian Federation.

Also, if it is necessary to continue cooperation with a “temporary worker,” it is allowed to renew the TD with him for a new term. This will not be considered an extension. The employee will be dismissed due to the expiration of the TD and hired again. But here it should be remembered that regular repeated re-conclusion of a short-term contract for the same work can lead to the fact that in the event of a dispute, the court recognizes the contract as indefinite. And this is fraught with the reinstatement of a person dismissed due to the expiration of the TD.

What is the procedure for terminating a temporary employment contract?

The rules for terminating urgent TD are specified in Art. 79 Labor Code of the Russian Federation. The moment of termination depends on how the term clause was formulated in the contract itself.

If an exact date is specified, the TD ends on its arrival.

A TD concluded for the duration of any work terminates when it is completed, a “seasonal” TD - with the end of the season.

The contract for replacing a temporarily absent employee will expire only upon his return to work.

IMPORTANT! The employer must notify the employee in writing of the upcoming dismissal at least 3 days before termination of the contract. An exception is a TD concluded to replace a temporarily absent employee.

If the TD period has expired and neither party has taken any action to terminate the relationship and the employee continues to work, the working agreement automatically turns into an open-ended one.

How to properly register an employee hired to replace a temporarily absent one?

When hiring a person who will replace one of the employees during his absence, Labor Code-article 59- prescribes the conclusion of an urgent TD. The reasons for the absence of a specialist may be different:

• maternity or any other leave;
• long-term disability;
• off-the-job training, etc.

The length of his absence is not important either. But here the requirement for a maximum 5-year term of TD should not be violated.

We have already indicated above that such an agreement is valid until the moment the person being replaced returns to duty. Of course, at the time of registration of the replacement, the date of its return may be unknown. In this regard, you should pay attention to the wording of the terms of the contract. It should be stated in it that the contract was concluded for the duration of the duties of X.H.H. (full name of the person being replaced) for the period, for example, maternity leave, until X.H.X returns to work .

An admission order is issued in a similar manner. So, in the column “Hire by” they indicate “before X.H.H. goes to work”, and in the line “Conditions of employment, nature of work” they write “for the duration of the duties of X.H.H., absent for the period of maternity leave.”

When the absent employee returns from vacation, a dismissal order is issued to the temporary employee under clause 2, part 1, art. 77 Labor Code of the Russian Federation.

How to conclude an agreement to perform temporary, seasonal or work outside the scope of normal activities?

Temporary, in the context of Art. 59 of the Labor Code of the Russian Federation, work that will take no more than 2 months to complete is considered. For example, this could be cleaning the area, landscaping, landscaping, etc.

The TD with the employee accepted for such work indicates:

1. Type of work. He is cited in the order of admission instead of the position.
2. Its start date.
3. The completion date, which in this case, as a rule, is determined not by a specific date, but by an event - the completion of the entire set of works. It is indicated in a similar order in the order.

Seasonal work is considered to be work that, for natural reasons, can only be performed during a certain period (season). The 46th chapter of the Labor Code of the Russian Federation is devoted to the work of seasonal workers. She sets possible duration season - 6 months, but does not strictly limit it. Therefore, the season may last shorter or longer. The list of seasonal work, as well as their maximum duration, are established by industry agreements (Part 2 of Article 293 of the Labor Code of the Russian Federation).

Features of TD with employees for the season are as follows:

1. Of course, an indication of the seasonal nature of the work. If there is none, the contract is recognized as unlimited.
2. It is possible not to indicate a specific date for the end of the employment relationship, since the end of the labor contract is associated with natural factors.

By analogy with the above, work that goes beyond the scope of normal activities or is associated with a temporary expansion of its scope is also formalized. The contract with those hired to carry out the work specifies the temporary nature, the start date of the work and the date or event with which the end of the work is associated. The latter is reflected in the acceptance order (for example, “until the end of reconstruction”).

Another possible case concluding an urgent TD - hiring people for a clearly defined job, the completion date of which cannot be predicted in advance. For example, to repair a building or premises. It is characteristic of such contracts that only an event can be indicated as their expiration date - the completion of the agreed work, which should be reflected in the text of the TD and in the acceptance order.

What to consider when concluding a fixed-term contract by agreement of the parties?

There are two key points here.

Firstly, the situation in which the contract is concluded must be included in the list from Part 2 of Art. 59 Labor Code of the Russian Federation. We cited it above. The inclusion of individual situations in the list may require documentary evidence. For example, a certificate from an educational institution, if the potential “fixed-term” employee is a full-time student.

Secondly, there must be mutual consent of the parties to conclude an urgent TD. If the fact that the employee was forced to agree to this suddenly comes to light and is proven, the contract may be reclassified by the court as permanent.

In terms of formalizing labor relations with “conscripts by agreement,” there are no special rules or differences from “conscripts by law.” The contract itself indicates its urgent nature and the reasons why the parties limited the labor relationship in time. The date or event determines the termination period of the contract.

The same information should be reflected in the admission order. In general, a work book and a personal card are issued.

Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract and the procedure for its preparation are strictly regulated, which describes in two parts the conditions for forming with an established group of persons. Categories of citizens are not as important as the types of activities that can be performed under fixed-term contracts with companies. Also, both parts of Article 59 of the Labor Code of the Russian Federation are devoted to a list of works that are not limited. Non-exhaustive regulations are presented in other legislative acts that are not defined by this article of the Labor Code of the Russian Federation.

The nature of fixed-term types of employment

Full list types of similar activities in Part 1 of Art. 59 reflect their classification and essence in the second part, so when signing agreements you can be guided by the first, relying on the second.

Art. 59 of the Labor Code also provides for the main 11 types of positions according to the types of provisions when it is necessary to conclude a fixed-term contract with an employee:

1. In the case where the employee is a substitute in the company. There are situations when a person replaces another due to special circumstances, and in these cases the fulfillment of temporary obligations requires formal reflection. For this purpose, a fixed-term contract is concluded for the period when it is necessary to replace a colleague or transfer affairs to an acting one. It is especially important to pay attention to the wording of the position: if it is not vacant, but is occupied by another person temporarily, then the date of the period is indicated until the person is reinstated or a real employee is found for the vacant position. This is necessary when the operation of the enterprise is impossible without the position of a specific person.
2. Full-fledged contracts that do not provide for the use of other people's resources. Let's say that seasonal work is carried out on behalf of the company and this requires hiring several workers for a period of two to six months. For this period, you need to conclude a fixed-term contract with the employee. Such situations include construction, temporary placement of employees, etc. It may also depend on natural conditions, when the excess of labor in time cannot be six months according to Article 293 of the Labor Code of the Russian Federation.
3. Separately, there is a position with temporary employment, which lasts up to 2 months. Such employees are hired on a fixed-term contract so that they have time to complete an annual report or go on an urgent business trip.

This list is legally closed. The Labor Code provides comprehensive information about a fixed-term employment contract. Therefore, before signing such a document, you need to carefully study the legislation.

You cannot conclude an agreement that will provide for work that requires 3-4 months to complete, but for the employer it is permanent. For example, you cannot constantly hire an incoming accountant under a fixed-term contract when the position is required on an ongoing basis. This gives rise to staff turnover at the enterprise, which arouses the interest of tax and labor inspectors.

Separately, it is worth mentioning seasonal work. It is permissible to employ workers similar species activities only on condition that the type of work is included in the list of urgent seasonal ones. There are special lists that the employer knows about, and they must be followed.

If a particular position has nothing to do with seasonal employment, the company is not entitled to provide a position on a fixed-term contract. In these cases, the work period should be established by specifying the work rate limits in the contract. This is usually achieved by entering into an annual agreement between both parties with the right to change the terms. When all the work is done, the managing person can terminate the employment agreement by mutual consent.

There are cases when employment contracts can be concluded on a fixed-term basis for more than six months, but subject to seasonality, which provides for such employment. Typically, these are positions that are established at the federal level, and then a regular fixed-term contract can be extended or modified.

The extension provides for an additional period, and the type of work is noted as temporary-seasonal. The manager of such activities must notify the working staff in advance, since the urgency for seasonal work that exceeds 6 months cannot be extreme and abrupt - there is a plan that must be followed. And since long-term plans include a change of personnel, it means that the fact is known in advance constant shortage temporary employed personnel.

Such circumstances are possible in the case of employment under a social collective agreement on industry events in the timber industry. The following and similar services are considered seasonal jobs with annual employment:

• the logging industry, when resin, spruce and barras are mined;
• timber rafting, when leftovers and waste are sold. This includes temporary types of work such as primary and raft rafting, sorting on water, loading and unloading wood onto a ship. In this case, they are guided by Article 293 of the Labor Code of the Russian Federation;
• When a person is employed in a job that is not included in the list of federal employment services, sanctions may be imposed on enterprises responsible for hiring and firing people, and the movement of personnel in employment conditions at the federal level.

Such situations also include those when people are sent under a contract to serve abroad.

If we talk about business trips and fixed-term contracts, the only difference is that in the first case, individuals perform work abroad that is supposed to be on behalf of the enterprise where the person is employed. In the second case, when a fixed-term contract is really needed, long trips are discussed, for a period of 1 - 3 years or more, possibly with subsequent transfer to another company. It does not matter for whom the work is performed.

The main thing is the conclusion of a contract based on Article 338 of the Labor Code of the Russian Federation. In addition, this type of travel may involve expanding the company's base when it enters the international market, and there is a need to send a person to fulfill all the conditions.

For example, a base or factory is being built, and a company employee must be present there for almost a year. Then his responsibilities are different, and they are supplemented in the fixed-term contract with various entries and additions.

Under other legal provisions, staff are not relieved of their rights and responsibilities. They are entitled to the same annual leave, paid sick leave and other benefits provided for a certain category of citizens.

Termination of this type of contract occurs automatically when its terms expire. This can be done ahead of schedule only for previously completed work or upon dismissal under article or at will.

Retirement is also provided for if at that moment the pensioner is on such assignments. He draws up all the documents, after which the contract is re-signed with him, indicating new conditions. As a rule, they are duplicated.

The commentary to paragraphs 338 of the article also states that types of activities that require additional obligations from a person should not necessarily be reflected in temporary contracts, because additional obligations can be regarded as overtime.

However, if we talk about seasonality and the temporary need to be absent from work, in order to exclude the fact of absenteeism, it is best to insure yourself with such fixed-term contracts. This will be beneficial for both parties, since the employee will not be fired (if anything happens) for absence from work, and the employer will not be fined for the documents not matching the positions held by the staff.

There are some enterprises that provide only seasonal employment of personnel. There contracts for a year or more cannot be concluded. For example, the situation with children's camps, when they operate only during the summer holidays.

The same can be said about recreation centers, resort hotels, etc., where recruitment of personnel is provided exclusively on temporary terms. Having arranged a person for a maximum of six months, there will already be serious violation, since it is no longer possible to fire him, and the employer is obliged to provide a salary for the fall, when there are no more responsibilities.

In such cases, only fixed-term contracts are used:

• there are conditions that meet all the requirements of temporary work;
• the enterprise really only operates in the summer or during a certain season;
• management assesses staff work as temporarily necessary;
• management does not need staff year-round.

Situations should not be confused with ski resorts or beaches, where seasonality may vary depending on the climate and the type of management of the enterprises.

If competitions, training of athletes, and workers are constantly held on the seas, they can be there under regular contracts. If we are talking about swimming pools, whose license is valid for only 3-4 months, it means that a private or urban enterprise cannot hire people for a period of six months. These types of companies also include other companies whose areas are affected by the seasonality of work.

The agreement ceases to be valid at the end of the period for which it was concluded. At the same time, it is unacceptable for responsibilities to be transferred to the powers of other persons, since companies, taking into account such conditions, cannot carry out such turnover of documents and personnel. The only face that remains on permanent job, this is a director and an accountant, who can often act as one person.

It is also impossible to fire a person before the termination of a fixed-term employment contract due to the decision to hire someone else, a more competent employee. This is temporary fixed-term position, and it is urgent precisely for the company, which is obliged to either consider hiring options in advance, or agree to what the employment center offers. In similar situations, you should refer to Resolution of the Plenum of the Supreme Council No. 2 of 2004.

There are situations when contracts with a duration are concluded for two or more months, however, the work can be completed in a few days or weeks. This is only feasible if it is explained to the person in advance that his activity consists, for example, of installing a security system in another subsidiary, and she is ready to take him on for 2-3 weeks, but by law a contract must be drawn up for 2 months.

In such cases, at the initiative of both parties, a fixed-term employment contract is concluded under Art. 59 of the Labor Code of the Russian Federation, which describes the type of work and the period required to translate the planned work plan into reality.

This separate species citizens who can get a job as apprentices or students. If in the first case, students can work up to eighteen years in camps or other enterprises of this type, then students can be constantly employed.

For example, a person is a correspondence student, but he decided to get a job with the right to attend sessions and go on vacation. Thus, if he joins a company as a main employee, he is provided with the usual type of contracts. If he works on behalf of the university in connection with advanced training, internship or for professional growth, he is hired on a fixed-term contract.

This is also stated in the Labor Code in Art. 59, where the work of such personnel is regarded as an internship. If a person is actually sent for an internship to another branch of the company, another city or country, only the length of stay at the company and the expiration date of the contract change. If an extension is required, the contract is renegotiated, or, if conditions allow, extended.

This practice is often found in educational institutions, when teachers and lecturers are forced to take wages from other enterprises. This can be explained as temporary employment or Urgent measures for employment. To put it bluntly, almost every teacher works this way, but there are exceptions.

For example, a university urgently needs a dean of a faculty or scientist to the chemistry room. Then a suitable person is selected from the staff who has the appropriate education, and until a new employee is found, the university will cooperate under a fixed-term contract with an interim person for the missing personnel unit.

But there are some features:

1. Do not confuse temporary obligations and a replacement position.
2. Replacing personnel is not a transfer of affairs, but a temporary permission to manage them.
3. As soon as a new person is found, all matters are transferred to her on behalf of the previous employee, and not the one who performed the deputy position.

According to Art. 59th Labor Code In the Russian Federation, a new team member can first get a job under a fixed-term contract (due to the urgent need for personnel with the right not to undergo an internship or probationary period), and then switch to full-time employment for the contract period.

Full-time employment under a fixed-term contract is a part-time working day with 100% pay. A fixed-term contract limits the rights of employees who have the responsibilities of other competent persons and cannot contain conditions that would indicate incomplete payment.

In fact, this is not possible, which is why full-time employment applies to both types of contracts. At the same time, a fixed-term agreement only allows you to come to work temporarily in order to leave at any time if you don’t like something, because it is the company that needs personnel, and the employee (as if giving in and making adjustments) agrees to the position on his own conditions.

In practice, everything is different, since people are afraid of temporary circumstances, temporary work and salary. However, this may only be “scary” for medical students who are forced to do residency training. This is not the same as a master's degree at other institutions, when you can take an academic leave or quit studying altogether. The doctor is obliged to go into practice to consolidate knowledge, since theory and practical experience associated with studying for decades, and a manager can apply his knowledge in a year or two. Of course, sick leave, vacation and pregnancy are not excluded, but this is reflected in studies as work activity.

These types of professions include the industrial sector and the educational sector, as well as medicine, where you constantly need to improve your skills. Here practice and experience are reflected in work and knowledge, and often study or travel is necessary as part of industrial relations responsibilities to improve the quality of services. Otherwise, additional education can be a plus, but not for “budget” areas of activity. Such personnel will always work under fixed-term contracts, especially if the activity involves business trips lasting several years.