Commentary on article 59

1. Article 59 is set out in new edition. Unlike the previous one, it contains two parts, each of which provides different kinds works (cases), for the performance of which an urgent contract is concluded with the employee labor contract.

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

2. Cases (types of work) listed in Part 1 of Art. 59, match common criterion conclusion of a fixed-term employment contract, formulated in Part 2 of Art. 58 TK. That is, all the cases listed in it determine the urgent nature of the labor connection.

In this regard, the conclusion of a fixed-term employment contract in those listed in Part 1 of Art. 59 occasions is mandatory. The wording of the commented norm does not imply a different solution, because in all these cases, based on the nature of the work to be done or the conditions for its implementation labor Relations cannot be set indefinitely. It should be noted that the previous version of Art. 59 gave the parties to the employment contract the right to choose in determining its type. That is, in all cases provided for in it, both a fixed-term employment contract and an employment contract with an indefinite period could be concluded.

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

These include:

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

2) to perform temporary (up to 2 months) work, as well as seasonal work, when due to natural conditions work can be carried out only during a certain period (season), which, as a rule, does not exceed 6 months (see comments to article 293).

The conclusion of a fixed-term employment contract for 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, at the time of preparing the annual report). At the same time, in the contract, by agreement of the parties, a specific term of the employment contract must be determined within 2 months (3 weeks, 1 month, 1.5 months, etc.).

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

The conclusion of a fixed-term employment contract for the performance of seasonal work is allowed provided that these works are provided for by a special list of seasonal work. Lists of seasonal work, including individual seasonal work, which can be carried out during a period (season) exceeding 6 months, and the maximum duration of these individual seasonal work is determined by sectoral (intersectoral) agreements concluded at the federal level of social partnership (part 1 of this Code). 2 verse 293, see comments to it).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8) in case of election for a certain period to an elected body or to an elective position for a paid job. For example, for the position of dean of the faculty or head of the department of higher educational institution. According to Art. 332 of the Labor Code, these positions are filled on the basis of elections (see Art. 17, 332 of the Labor Code);

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

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

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

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

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

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

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

In accordance with Art. 5 of this Law, the term of alternative civilian service is 42 months, and for citizens who have graduated from state, municipal or state accredited non-state educational institutions of higher professional education in the relevant areas of training (specialties) - 21 months. The term of alternative civilian service for citizens undergoing this service in organizations of the Armed Forces of the Russian Federation, other troops, military formations and bodies is 36 months, and for citizens who have graduated from state, municipal or having state accreditation in the relevant areas of training (specialties) non-state educational institutions of higher professional education - 18 months.

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

3. Unlike part 1 of the commented article, in accordance with which the conclusion of an employment contract for a certain period is mandatory due to the nature of the work to be done or the conditions for its implementation, part 2 of the article provides a list of cases when the conclusion of a fixed-term employment contract is allowed by agreement of the parties . Moreover, by agreement of the parties, a fixed-term employment contract in those 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. At the same time, it must be borne in mind that such an agreement can be recognized as lawful if there was an agreement between the parties, that is, if it was concluded on the basis of the voluntary consent of the employee and employer. If the court, when resolving a dispute on the legality of concluding a fixed-term employment contract, establishes that it was concluded by the employee involuntarily, the court applies the rules of the contract concluded for an indefinite period.

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 and consumer services - 20 people). It should be noted that in the previous edition these figures were 40 and 25 respectively.

The concept and types of small businesses are defined by Art. 3 of the Federal Law of June 14, 1995 N 88-FZ "On state support small business in the Russian Federation "(СЗ RF. 1995. N 25. Art. 2343). In accordance with it, small business entities are understood as commercial organizations, in authorized capital which the share of participation of the Russian Federation, constituent entities of the Russian Federation, public and religious organizations(associations), charitable and other foundations does not exceed 25%, the share belonging to one or more legal entities, which are not small businesses, does not exceed 25% and in which the average number of employees for the reporting period does not exceed the following limit levels (small enterprises):

In industry - 100 people;

In construction - 100 people;

On transport - 100 people;

IN agriculture- 60 people;

In the scientific and technical sphere - 60 people;

IN wholesale trade- 50 people;

In retail trade and consumer services - 30 people;

In other industries and in the implementation of other activities - 50 people.

Small businesses also refer to individuals involved in entrepreneurial activity without forming a legal entity.

Small enterprises carrying out several types of activities (diversified) are classified as such according to the criteria of the type of activity, the share of which is the largest in the annual turnover or annual profit. The average number of employees of a small enterprise for the reporting period is determined taking into account all its employees, including those working under civil law contracts and part-time jobs, taking into account the time actually worked, as well as employees of representative offices, branches and other separate subdivisions specified legal entity;

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

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

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

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

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

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

4) to carry out urgent work to prevent catastrophes, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances (for example, to eliminate the consequences of floods, fires). Since the law does not establish a minimum or maximum period for which an employment contract can be concluded under the specified circumstances, it is determined by agreement of the parties. If the term of the employment contract does not exceed 2 months, the labor relations that have arisen are regulated taking into account the features established by Ch. 45 of the Labor Code (see comments to Art. Art. 289 - 292);

5) with creative media workers mass media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works by professional athletes in accordance with the lists of works, professions, positions of these workers approved by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations. To date, such lists have not been approved;

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

The validity of the employment contract with the head of the organization in accordance with Part 1 of Art. 275 of the Labor Code, set out in the new edition, is determined founding documents 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. It should be noted that according to the previous version of Part 1 of Art. 275 of the Labor Code, the conclusion of a fixed-term employment contract with the head of the organization was mandatory;

7) with persons studying full-time education;

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

4. In addition to the cases expressly provided for in Part 2 of Art. 59, the conclusion of a fixed-term employment contract by agreement of the parties is also allowed in other cases provided for by the Labor Code or other federal law. So, in accordance with Art. 332 of the Labor Code, as set out in the new edition, by agreement of the parties, fixed-term employment contracts may be concluded for filling positions of scientific and teaching staff in a higher education institution. According to the previous version of this article, the conclusion of a fixed-term employment contract (for a period of up to 5 years) with these employees was mandatory.

5. According to general rules conclusion of a fixed-term employment contract, established by Art. 58 of the Labor Code, a fixed-term employment contract can be concluded either in cases where labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation (part 1 of article 59), or by agreement of the parties without taking into account the named circumstances in cases provided for by the Labor Code or other federal law (part 2 of article 59). However, in some cases Labor Code provides for the conclusion of a fixed-term employment contract and without taking into account these general rules. So, according to part 14 of Art. 332 of the Labor Code, a fixed-term employment contract is concluded with vice-rectors of a higher educational institution. The named norm is stated in an imperative form, therefore, the conclusion of a fixed-term employment contract with the specified employees is mandatory by virtue of the direct prescription of the law. However, neither by its nature nor by the conditions of performance, work as a vice-rector of a higher educational institution is a job for which it is impossible to conclude an employment contract for an indefinite period. Thus, by providing for the obligatory conclusion of a fixed-term employment contract with vice-rectors of a higher educational institution, the legislator has shown a clear inconsistency in regulating the relations in question (see comments to Article 332).

Labor Code of the Russian Federation:

Article 59 of the Labor Code of the Russian Federation. Fixed-term employment contract

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

The consequences of the repeated conclusion of fixed-term employment contracts

When establishing during the trial the fact of the repeated conclusion of fixed-term employment contracts for a short period to perform the same labor function, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period.

Positions of the Constitutional Court of the Russian Federation on a fixed-term employment contract

Paragraph 6 of Part 2 of Art. 59 of the Labor Code of the Russian Federation on the conclusion of a fixed-term employment contract with persons elected by competition does not contradict the Constitution

Paragraph six of the second part of Article 59 of the Labor Code of the Russian Federation, providing for the possibility of concluding a fixed-term employment contract with persons elected by competition for the corresponding position by agreement of the parties, provides the parties to the employment contract with freedom of choice in determining its type.

This regulatory provision, in conjunction with parts one and two of Article 332 of the said Code (both in the version before the entry into force of the Federal Law of December 22, 2014 N 443-FZ, and in the current version) is aimed at taking into account the peculiarities of the labor activity of persons elected by competition, and does not imply an arbitrary establishment of the term of an employment contract with certain categories of pedagogical workers.

Such legal regulation applies equally to all teaching staff belonging to the teaching staff, and cannot be regarded as violating the rights of the applicant (determination of the Constitutional Court of the Russian Federation of 06.23.2015 N 1240-O)

Paragraph 3 of Part 2 of Art. 59 of the Labor Code of the Russian Federation on the conclusion of a fixed-term agreement with pensioners does not contradict the Constitution

As the Constitutional Court of the Russian Federation pointed out in Ruling No. 378-O-P of May 15, 2007, the normative provision of the third paragraph of the second part of Article 59 of the Labor Code of the Russian Federation, providing that a fixed-term employment contract with pensioners by age can be concluded by agreement of the parties, provides the parties with a labor of the contract freedom of choice in determining its type: by mutual agreement, the contract can be concluded both for a fixed and for an indefinite period.

Since a fixed-term employment contract is concluded on the basis of the voluntary consent of the employee and the employer, in the case when the consent to the conclusion of the contract was given by the employee involuntarily, he has the right to challenge the legality of concluding a fixed-term employment contract with him in a court of general jurisdiction. If the court, on the basis of an examination and assessment of all the actual circumstances of the case, establishes that the consent of the employee to conclude such an agreement is not voluntary, the court applies the rules of the agreement concluded for an indefinite period.

Thus, the disputed provision cannot be considered as violating the applicant's rights (Ruling of the Constitutional Court of the Russian Federation of December 24, 2013 N 1911-O).

Employment contract with a pensioner, forced consent

Checking the provisions of Article 59 of the Labor Code of the Russian Federation for their compliance with the Constitution of the Russian Federation, the Constitutional Court of the Russian Federation in the ruling of the Constitutional Court of the Russian Federation of May 15, 2007 N 378-O-P expressed a number of the following legal positions:

The employer does not have the right to reissue an employment contract already concluded with a pensioner (for an indefinite period) for a fixed-term employment contract

The conclusion of a fixed-term employment contract with pensioners by age may take place without taking into account the nature of the work to be done or the conditions for its implementation. At the same time, the establishment of labor relations for a certain period without taking into account the nature of the work and the conditions for its implementation is allowed only with those pensioners who go to work. The law does not give the employer the right to reissue an employment contract concluded with an employee for an indefinite period to a fixed-term employment contract (as well as to terminate the employment contract) in connection with the achievement of retirement age by this employee and the assignment of a pension to him.

Retirement age is not a sufficient basis for concluding a fixed-term employment contract. A pensioner is a citizen who has been assigned a pension!

The applicant, substantiating his position on the inconsistency of the contested provision of Article 59 of the Labor Code of the Russian Federation with the Constitution of the Russian Federation, in particular, the requirements arising from its Articles 19 (parts 1 and 2) and 55, proceeds from the fact that this legal provision provides the employer with the opportunity to conclude an urgent employment contract solely because of reaching retirement age. Meanwhile, according to its meaning, the retirement age of a citizen as such is not a sufficient basis for concluding an employment contract with him for a certain period. Old-age pensioners include only those persons who have reached retirement age, who, in accordance with the pension legislation, have been assigned an old-age (old-age) pension. A citizen who has reached the age required for granting a pension, but who has not acquired the right to it, or whose pension has not been assigned due to other circumstances, cannot be considered a pensioner and, therefore, is not among the persons with whom a fixed-term employment contract can be concluded on the basis of paragraph three of part two of Article 59 of the Labor Code of the Russian Federation.

The conclusion of a fixed-term employment contract with a pensioner does not limit the freedom of labor

The normative provision of the third paragraph of the second part of Article 59 of the Labor Code of the Russian Federation, which allows the conclusion of a fixed-term employment contract with pensioners by age in the absence of objective reasons requiring the establishment of labor relations for a certain period, does not limit, contrary to the applicant's assertion, freedom of labor, their right to freely dispose of their abilities to work, choose the type of activity and profession, enshrined in Article 37 (part 1) of the Constitution of the Russian Federation. Providing that a fixed-term employment contract with old-age pensioners can be concluded by agreement of the parties, it provides the parties to the employment contract with freedom of choice in determining its type: by mutual agreement, the contract can be concluded both for a fixed and indefinite period.

The forced consent of the employee to conclude a fixed-term contract is the basis for recognizing the contract as concluded for an indefinite period

Since a fixed-term employment contract is concluded by agreement of the parties, i.e. on the basis of the voluntary consent of the employee and the employer, in the case when the consent to the conclusion of the contract was given by the employee involuntarily, he has the right to challenge the legality of concluding a fixed-term employment contract with him in a court of general jurisdiction. If the court, on the basis of an examination and assessment of all the actual circumstances of the case, establishes that the consent of the employee to conclude such an agreement is not voluntary, the court applies the rules of the agreement concluded for an indefinite period.

The fact of the repeated conclusion of fixed-term employment contracts is the basis for the recognition by the court of an employment contract concluded for an indefinite period

When establishing during the trial the fact of the repeated conclusion of fixed-term employment contracts for a short period to perform the same labor function, the court has the right, taking into account the circumstances of a particular case, to recognize the employment contract as concluded for an indefinite period (paragraphs 13 and 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17 2004 N 2). The court of general jurisdiction considering such a labor dispute must also verify that the employer complies with the prohibition established by part six of Article 58 of the Labor Code of the Russian Federation on concluding fixed-term employment contracts in order to evade granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.

Thus, the normative provision of the third paragraph of the second part of Article 59 of the Labor Code of the Russian Federation cannot be regarded as violating the equality of citizens in exercising their right to work and, therefore, there are no grounds for accepting the request of the Amur City Court of the Khabarovsk Territory for consideration.

A fixed-term employment contract is:

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

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

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

with persons sent to work abroad;

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

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

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

to perform work directly related to practice, vocational training or additional vocational education in the form of an internship;

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

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

with citizens sent for alternative civilian service;

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

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

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

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

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

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

with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers approved by the Government of the Russian Federation Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations;

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

with persons receiving full-time education;

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

with persons entering a part-time job;

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

Commentary on Art. 59 Labor Code of the Russian Federation

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

Judicial practice under article 59 of the Labor Code of the Russian Federation

Determination of the Constitutional Court of the Russian Federation of May 15, 2007 N 378-O-P

1. The request of the Amur City Court of the Khabarovsk Territory disputes the constitutionality of the provision of the article of the Labor Code of the Russian Federation, which provides for the possibility of concluding a fixed-term employment contract with pensioners by age (paragraph fourteen of this article in the original wording that was in force until October 6, 2006; paragraph three of part two of this article as amended by the Federal Law of June 30, 2006 N 90-FZ).

"Review of legislation and judicial practice of the Supreme Court of the Russian Federation for the second quarter of 2007"

On the refusal to accept for consideration the request of the Amur City Court of the Khabarovsk Territory to verify the constitutionality of the provision of an article of the Labor Code of the Russian Federation

Determination of the Constitutional Court of the Russian Federation of May 15, 2007 N 378-O-P

On the refusal to accept for consideration the complaint of citizen Alexander Mikhailovich Blinov about the violation of his constitutional rights by paragraph 6 of Article 9 of the Federal Law "On the Features of the Management and Disposition of Property railway transport"and paragraph 15 of Article 43 of the Federal Law "On the privatization of state and municipal property"

Determination of the Supreme Court of the Russian Federation of April 18, 2007 N 72-Г07-3

Thus, in accordance with the article of the Labor Code of the Russian Federation, a fixed-term employment contract for a certain period is concluded in cases of election to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies and officials in public authorities.

Determination of the Supreme Court of the Russian Federation of September 20, 2006 N 83-Г06-14

Articles and the Labor Code of the Russian Federation stipulate that the effect of labor legislation and other acts containing labor law norms on state civil servants and municipal employees applies with the features provided for by federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory acts of the constituent entities of the Russian Federation. Federation on State Civil and Municipal Service. A fixed-term employment contract may be concluded in case of employment related to the direct support of the activities of members of elected bodies or officials in state authorities and local governments, as well as in political parties and other public associations. Other cases of concluding fixed-term employment contracts may be established only by federal laws.

Determination of the Supreme Court of the Russian Federation of April 13, 2004 N 35-Г04-5

According to the plaintiff, the actions of the employer to reduce the salary are illegal, the contract for a certain period was also initially concluded with her in violation of the requirements of Part 5 of Art. Labor Code of the Russian Federation, since the employer did not have sufficient grounds provided for in Art. Labor Code of the Russian Federation, for the conclusion of a fixed-term employment contract. In addition, Part 4 of Art. The Labor Code of the Russian Federation provides that if none of the parties demanded the termination of a fixed-term employment contract due to the expiration of its term, and the employee continues to work after the expiration of the contract, the employment contract is also considered concluded for an indefinite period. The change in the essential terms of the employment contract occurred without her written consent, as required by paragraph 1 of Art. Labor Code of the Russian Federation, in addition, she was not notified in writing 2 months before the expiration of the contract, as prescribed by paragraph 2 of Art. TK RF. B. asked that the contract concluded with her be considered concluded for an indefinite period, initially with a salary of 3,500 rubles. and a reward of 1.25% of the profit, and then - with a salary of 5,000 rubles. and remuneration up to 5% of the profit.

Determination of the Supreme Court of the Russian Federation of March 27, 2003 N 46-Г03-5

By virtue of Art. The Labor Code of the Russian Federation, a fixed-term labor contract may be concluded to replace a temporarily absent municipal employee, for whom, in accordance with the law, the place of work is retained.

Thus, the general rules established by paragraph 4 of Art. and paragraph 2 of Art. The Labor Code of the Russian Federation cannot be applied to municipal employees with whom it is possible to conclude a fixed-term employment contract, since the special rules established by Art. Labor Code of the Russian Federation and clause 3 of Art. 4, art. 8 of the Federal Law "On the Fundamentals municipal service In Russian federation"

Determination of the Supreme Court of the Russian Federation of 03.10.2008 N 89-В08-6

In considering the case, the court referred to Art. of the Labor Code of the Russian Federation, according to which a fixed-term employment contract can be concluded by agreement of the parties with retirees entering work by age.

In accordance with the amendments made to the articles and the Labor Code of the Russian Federation by the Federal Law of June 30, 2006 N 90-FZ, the conclusion of a fixed-term employment contract with pensioners by age may take place without taking into account the nature of the work ahead or the conditions for its performance.

Determination of the Supreme Court of the Russian Federation of February 17, 2010 N 73-Г10-1

Article 3 of the above-mentioned Law of March 2, 2007 N 25-FZ provides that the legal foundations of the municipal service in the Russian Federation are the Constitution of the Russian Federation, this Federal Law and other federal laws, other regulatory legal acts of the Russian Federation, constitutions (charters), laws and other regulatory legal acts of the constituent entities of the Russian Federation, charters municipalities, decisions taken at citizens' gatherings, and other municipal legal acts. Part 2 Art. 6 of the same Law provides that the positions of the municipal service are established by municipal legal acts in accordance with the register of positions of the municipal service in the subject of the Russian Federation, approved by the law of the subject of the Russian Federation, and part 2 of Art. 7 provides that the register of municipal service positions in a constituent entity of the Russian Federation may provide for municipal service positions established to directly ensure the execution of the powers of a person replacing municipal position. Such positions of the municipal service are replaced by municipal employees by concluding an employment contract for the term of office of the specified person. The above provisions of this norm are consistent with Art. Art.

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

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

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

For undefined period;

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

When they conclude

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

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

Table.

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

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

We draw up a fixed-term employment contract

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

Mandatory terms of an employment contract

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

place of work;

labor function;

date of commencement of work;

salary;

mode of operation;

compensation;

the nature of the work;

condition on compulsory social insurance, etc.

How to determine the terms of the contract

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

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

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

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

Example 1

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

Solution

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

"2. Contract time

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

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

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

illness of an employee;

• performance of seasonal work.

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

Example 2

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

Solution

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

"2. Contract time

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

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

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

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

Probation

Is it possible to establish a probationary period when concluding a fixed-term employment contract? It all depends on how long and for what work the employee is hired.

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

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

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

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

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

under the age of 18;

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

elected to an elective position for a paid job;

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

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

We draw up a fixed-term employment contract

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

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

Example 3

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

Solution

The fixed term contract is below.

Entry in the work book upon employment

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

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

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

Vacation of a conscript worker

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

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

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

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

Extension of a fixed-term employment contract

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

Mandatory extension of the contract

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

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

Extension by agreement of the parties

Part 4 of Article 58 of the Labor Code states the following. In the event that neither of the parties demanded the termination of a fixed-term employment contract due to its expiration and the employee continues to work, the condition on the urgent nature of the employment contract becomes invalid. After that, the employment contract is considered concluded for an indefinite period. Does the fact of changing the status of a fixed-term contract to an open-ended contract need to be documented?

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

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

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

Fixed term contract with pensioner

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

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

Termination of a fixed-term employment contract

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

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

Dismissal order

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

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

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

Entry in the workbook

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

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

On a note

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

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

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

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

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

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

Taxation and retirement benefits

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

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

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

The first two payments are subject to:

• insurance premiums (clause 1, article 7 of the Federal Law of July 24, 2009 No. 212-FZ “On insurance premiums in Pension Fund of the Russian Federation, the Social Insurance Fund of the Russian Federation, the Federal Compulsory Medical Insurance Fund and the Territorial Compulsory Medical Insurance Funds).

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

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

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

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

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

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

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

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

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

Features of termination of an employment contract with seasonal workers are discussed in the article "Dismissal of a seasonal worker // Salary, 2010, No. 7". There are also examples of filling out documents. - Note. ed.

Chapter 11. CONCLUSION OF AN EMPLOYMENT CONTRACT

Chapter 12. AMENDMENT OF AN EMPLOYMENT CONTRACT

Chapter 13. TERMINATION OF AN EMPLOYMENT CONTRACT

Chapter 14. PROTECTION OF THE PERSONAL DATA OF THE EMPLOYEE

Section IV. WORK TIME

• Chapter 15. GENERAL PROVISIONS
• Chapter 16. WORKING HOURS

Section V. REST

• Chapter 17. GENERAL PROVISIONS
• Chapter 18 WEEKENDS AND NON-WORKING HOLIDAYS
• Chapter 19

Section VI. PAYMENT AND REGULATION OF LABOR

• Chapter 20. GENERAL PROVISIONS
• Chapter 21. WAGES
• Chapter 22

Section VII. WARRANTY AND REFUND

• Chapter 23. GENERAL PROVISIONS
• Chapter 24
• Chapter 25
• Chapter 27
• Chapter 28. OTHER GUARANTEES AND COMPENSATIONS

Section VIII. WORK REGULATION. WORK DISCIPLINE

• Chapter 29. GENERAL PROVISIONS
• Chapter 30. DISCIPLINE OF LABOR

SECTION IX. EMPLOYEE QUALIFICATION, PROFESSIONAL STANDARD, TRAINING AND ADDITIONAL PROFESSIONAL EDUCATION OF EMPLOYEES (as amended by Federal Law No. 122-FZ of May 2, 2015)

• Chapter 31. GENERAL PROVISIONS
• Chapter 32

Section X. LABOR SAFETY

• Chapter 33. GENERAL PROVISIONS
• Chapter 34. LABOR PROTECTION REQUIREMENTS
• Chapter 35. ORGANIZATION OF LABOR PROTECTION
• Chapter 36

Section XI. MATERIAL RESPONSIBILITY OF THE PARTIES TO THE EMPLOYMENT CONTRACT

• Chapter 37. GENERAL PROVISIONS
• Chapter 38
• Chapter 39

PART FOUR

• Section XII. FEATURES OF LABOR REGULATION OF CERTAIN CATEGORIES OF EMPLOYEES
  • Chapter 40. GENERAL PROVISIONS
  • Chapter 41
  • Chapter 42
  • Chapter 43
  • Chapter 44
  • Chapter 45
  • Chapter 46
  • Chapter 47
  • Chapter 48
  • Chapter 48.1. PECULIARITIES OF LABOR REGULATION OF PERSONS WORKING FOR EMPLOYERS - SMALL BUSINESS ENTITIES, RELATED TO MICRO-ENTERPRISES (introduced by Federal Law of 03.07.2016 N 348-FZ)
  • Chapter 49
  • Chapter 49.1. FEATURES OF REGULATION OF THE LABOR OF REMOTE WORKERS (introduced by the Federal Law of 05.04.2013 N 60-FZ)
  • Chapter 50
  • Chapter 50.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES WHO ARE FOREIGN CITIZENS OR STATELESS PERSONS (introduced by Federal Law No. 409-FZ of December 1, 2014)
  • Chapter 51
  • Chapter 51.1. PECULIARITIES OF LABOR REGULATION OF EMPLOYEES EMPLOYED IN UNDERGROUND WORKS (introduced by Federal Law No. 353-FZ of November 30, 2011)
  • Chapter 52
  • CHAPTER 52.1. PECULIARITIES OF REGULATION OF THE LABOR OF SCIENTIFIC WORKERS, HEADS OF SCIENTIFIC ORGANIZATIONS AND THEIR DEPUTIES (introduced by Federal Law No. 443-FZ of December 22, 2014)
  • Chapter 53.1. PECULIARITIES OF REGULATION OF THE LABOR OF EMPLOYEES SENT TEMPORARYLY BY THE EMPLOYER TO OTHER INDIVIDUALS OR LEGAL ENTITIES UNDER THE LABOR AGREEMENT FOR EMPLOYEES (PERSONNEL) (introduced by Federal Law of 05.05.2014 N 116-FZ)
  • Chapter 54
  • Chapter 54.1. PECULIARITIES OF LABOR REGULATION OF ATHLETES AND COACHES (introduced by Federal Law No. 13-FZ of February 28, 2008)
  • Chapter 55

PART FIVE

• Section XIII. PROTECTION OF LABOR RIGHTS AND FREEDOM. REVIEW AND RESOLUTION OF LABOR DISPUTES. RESPONSIBILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW NORMS (as amended by Federal Law No. 90-FZ of June 30, 2006)
  • Chapter 56. GENERAL PROVISIONS
  • Chapter 57
  • Chapter 58
  • Chapter 59
  • Chapter 60. REVIEW AND RESOLUTION OF INDIVIDUAL LABOR DISPUTES
  • Chapter 61. CONSIDERATION AND RESOLUTION OF COLLECTIVE LABOR DISPUTES
  • Chapter 62. RESPONSIBILITY FOR VIOLATION OF LABOR LEGISLATION AND OTHER ACTS CONTAINING LABOR LAW

PART SIX

• Section XIV. FINAL PROVISIONS

Article 59 of the Labor Code of the Russian Federation. Fixed-term employment contract

A fixed-term employment contract is:

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

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

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

with persons sent to work abroad;

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

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

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

to perform work directly related to practice, vocational training or additional professional education in the form of an internship;

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

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

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

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

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

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

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

with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with lists jobs, professions, positions of these employees, approved by the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations;

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

with persons receiving full-time education;

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

with persons entering a part-time job;

What is the difference between a contract with a temporary worker and a contract with a permanent one?

Most workers are much more willing to take permanent jobs than temporary ones. An employee who has entered into a contract with an indefinite duration has much more rights than a temporary worker. Permanent employees do not have to worry about finding a new job after the expiration of the contract, unlike citizens who have entered into a temporary contract. Labor legislation in our country is structured in such a way that the majority of workers, in order to guarantee their rights, must be employed on a permanent basis. Employment on a permanent basis implies the conclusion of an employment contract for an indefinite period. There is only the start date of the contract. When concluding an indefinite employment contract, it is impossible to specify in advance the date of its termination. This is its main difference from the contract with a temporary worker, concluded for a specific period. In general, the labor code does not contain such a thing as a “temporary worker”. It is understood that this is an employee who performs work for a certain period of time. According to Art. 59 of the Labor Code of the Russian Federation, temporary work is work that takes up to two months to complete. Probation for employees performing temporary work is not established. In the context of the issue under consideration, a temporary worker is an employee with whom a fixed-term contract (not necessarily for two months) has been concluded, setting the end date for the period of cooperation. The employer cannot, on his own initiative, decide with which employee he will conclude a temporary contract, and with which - a permanent one. For this, Art. 59 of the Labor Code of the Russian Federation provides for grounds on which an agreement concluded with an employee may be of an urgent nature. If, in the absence of the grounds listed in the article, the employer concludes a fixed-term contract with the employee, his actions can be considered unlawful. A fixed-term contract cannot be concluded for a period of more than 5 years. So, the main difference between a contract with a temporary worker and a contract with a permanent one is due date temporary contract. A fixed-term contract may expire on a certain date or event. The return to work of the main employee, the end of the work season, or simply the end of the term of work (for example, when the project is completed) entails the termination of the temporary employment contract. A permanent employee, unlike a temporary employee, is not limited to a specific period and feels more secure.

Can the temporary contract be extended? On what period?

The law allows for the possibility of extending a temporary contract for certain categories of employees. This is due to the occurrence of certain life situations. The categories of workers for whom a temporary employment contract can be extended include pregnant women, athletes and university employees. The term of the contract with a pregnant woman is extended until the end of pregnancy. To do this, the employee must provide a certificate and write a statement. An employer can dismiss an employee on the day the maternity leave ends. For athletes, there is the possibility of a temporary transfer to another employer with the conclusion of an agreement for a period of not more than a year. This contract can be extended for an indefinite period or a period determined by the parties if:

• the athlete continues to work in a new place at the end of the time period;
• neither the first nor the second employers require termination of the temporary contract.

An employee of the university, who initially works under a fixed-term contract, can count on its extension for a period of not more than 5 years or for an indefinite period. To do this, he must be elected by competition for a previously occupied, or for new position. The term of the contract is changed by agreement of the parties. There is also the possibility that it will be necessary to continue the performance of certain works after the expiration of the fixed-term contract. In this case, the employer will not have a conditional need to transfer the employee to a permanent basis. Is it possible in this case to extend the temporary contract without transforming it into an open-ended one? Legislative norms are interpreted in different ways, and at the moment there is no consensus on this issue. If we proceed from a literal interpretation, then it is possible to extend the term of an employment contract only in cases specified by law. We have already listed them. but arbitrage practice shows that there is a possibility of extending the term of the temporary contract in cases not provided for by law. For example, if, in fact, at the time of termination of the fixed-term contract, which was concluded in order to replace the main employee, the main employee did not enter the service. Even if the court recognizes the lawful extension of the employment contract, its total period, taking into account this extension, should not exceed 5 years. This is the maximum duration of a fixed-term contract, in accordance with Article 59 of the Labor Code of the Russian Federation. Sometimes it is more expedient for an employer to wait for the termination of a fixed-term contract in order to conclude a new temporary employment contract with the same employee, provided that the grounds for concluding such an agreement remain. Otherwise, the employer always remains at risk of recognizing the extended contract as open-ended. If, nevertheless, the procedure for extending the temporary contract is used, then it is formalized by an additional agreement. Additional agreement you need to have time to draw up before the expiration of the temporary contract, otherwise it will again be recognized as indefinite.

The possibility of renewing a fixed-term contract

The very word "reconclusion" implies the signing of a new urgent work. contracts with the same employee. The previous contract with the employee has expired, and the organization needs to continue the employment relationship with him. However, it is illegal to constantly or unreasonably pass a fixed-term contract with a temporary worker - if the labor relations of the parties contain signs of permanence, then the employer is obliged to issue an open-ended contract with him. Otherwise, it can be done through the court. So when is it legal to renegotiate a fixed-term contract? There are two situations that enable the employer to renew the contract with a temporary employee for new term. The first situation: the employee is related to any of the categories listed in Part 2 of Art. 59 of the Labor Code of the Russian Federation, and agree to a new temporary contract. Part two of this article contains a list of persons who sign a fixed-term contract by agreement of the parties. For example, a citizen works under a fixed-term contract in an organization that is a small business entity with no more than 35 employees. At the expiration of the period of validity of his contract, with the consent of the citizen, a new line contract can be signed with him (Article 59 of the Labor Code of the Russian Federation). In addition, in part 2 of Art. 59 of the Labor Code of the Russian Federation, the following persons are listed:

• pensioners who are on honey. only temporary work is allowed;
• citizens moving to work in the regions of the Far North;
• persons preventing catastrophes, accidents, epidemics;
• creative workers of the media, theaters, cinema, etc. according to the list approved by the Government;
• managers, their deputies and chief accountants;
• full-time students;
• ship crew members;
• persons who work part-time;
• and other persons specified in the Labor Code of the Russian Federation and Feder. laws.

The above list is not closed. So, with the citizens specified in Art. 59 of the Labor Code of the Russian Federation or other norms. acts, it is possible, with their consent, to renegotiate a temporary contract for a new term. The second situation: the term of the contract with the employee has expired, but the management can offer him new job, the conditions of which do not allow to conclude a permanent job. contract. For example, an employee who was replaced under a fixed-term contract came out of parental leave. But at the same moment, another employee leaves on maternity leave, whose position can be offered to an urgent worker. According to the explanations of Rostrud, in such a situation, renewing a temporary contract for a new term is considered lawful. In addition, Article 338 provides for the right of the employer to renew a fixed-term contract with an employee sent to work abroad. So, it turns out that it is possible to extend a temporary contract for a new term with the same employee only in certain situations and under special circumstances. To renew a fixed-term contract, an employee must be fired due to the expiration of the contract, and then rehired under a new temporary agreement.