Is it possible to make a fixed-term employment contract permanent?

Changing the form of an employment contract, when one concluded for a certain period becomes indefinite, does not require dismissal of the employee and rehiring. However, in this case, the management of the organization and the personnel service will have to take some actions and draw up a number of documents.

Let's figure out what such a translation should look like according to the law. And also what documents are needed.

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

How to transfer an employee from a temporary to a permanent contract?

The Labor Code (LC) of the Russian Federation provides for two main types of employment contracts:

Indefinite – valid from the moment a new employee is hired until his dismissal for any reason (own desire, layoff, etc.).
Urgent - concluded for a certain time and valid only during this period. Art. 58 of the Labor Code of the Russian Federation provides that the duration of such an agreement should be no more than 5 years, except in special cases separately provided for by law.

By default, it is considered that the contract between the employee and the employer is concluded for an indefinite period, unless a period is expressly specified in it. At the same time, the legislation allows that a fixed-term employment contract can become indefinite.

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Compilation methods:

Expiration of the contract without dismissal of the employee.
Changing the terms of the employment contract regarding the term using an additional agreement.
Recognition of a fixed-term employment contract as indefinite in court.

The last option can be used when the employer has significantly violated the rights and interests of the employee, unreasonably forcing him to enter into an employment contract not on a permanent basis, but temporarily.

The point is that Art. 59 of the Labor Code of the Russian Federation provides for a number of cases when it is permissible to conclude such an agreement (seasonal work, replacing an absent employee who, by law, retains his job, etc.) - and in the event that none of them applies to the current situation, The employer’s actions can be challenged in court, recognizing a fixed-term contract as concluded for an indefinite period.

How to draw up a contract correctly?

The employer and employee themselves agree on the period of work. Art. 58 of the Labor Code of the Russian Federation regulates:

If the parties did not indicate its validity period when drawing up a TD, then according to the Labor Code of the Russian Federation, the document is drawn up for an indefinite period and is considered unlimited.
In addition to this Art. 57 of the Labor Code of the Russian Federation regulates that an open-ended TD with an employee must contain all the required conditions specified in this article, including:

Date of registration of the TD.
General provisions, indicating the place of employment.
Rights and obligations of the parties to the agreement.
Conditions of remuneration for labor activities.
The working day or shift schedule, indicating the nature of the work (traveling, mobile, etc.), as well as rest conditions.
Compliance with health and safety regulations.
Social insurance conditions.
The procedure for changing the TD and the conditions for its termination.
Responsibility of the parties.
Final provisions.

It should be noted that this list of conditions is not exhaustive. The legislation of the Russian Federation allows the introduction of additional clauses within the framework of the Labor Code of the Russian Federation, without deteriorating the rights of the working person.

The TD is drawn up in writing in 2 copies with one signed copy being delivered to the employee and the other to the employer.

You can watch the video on how to legally register a TD with an employer.

Below we propose to consider the procedure for filling out sections with the terms of labor cooperation between the employer and the employee.

Conclusion date

When drawing up a TD, you must definitely note the name of the document, assigning a number to it, as well as the place and date of its completion.

General provisions

1) After fixing the date of the TD being compiled, it is necessary to fill out the preamble of the document showing:

Details of the employer, where the name of the enterprise and the basis for registration of the TD are noted.
Information about the employee, indicating his full name.

2) Then the general provisions are filled in, recording:

Registration of TD for an indefinite period.
Start dates.
Nature of work (part-time or main).
Test period.

3) Next, fill in the subject of the agreement, where it is noted:

The position for which the employee is being hired.
Discharge.
Place of work.

Rights and responsibilities of an employee

This section is intended to display the employee’s functional responsibilities and rights.

1) Thus, the employee has the following rights:

Receiving the work specified in the TD.
Allocation of a workplace in accordance with labor safety requirements.
In timely and full receipt of salary, in the amount indicated in the TD.
In obtaining complete information about working conditions.
In compulsory social insurance.
Participating in negotiations when concluding a collective agreement.
In changing and breaking the TD in accordance with the legislative norms of the Russian Federation.
To protect your labor rights.
To compensate for damage caused to him in the performance of his functions.
To participate in trade unions.
To rest.
Other rights provided for by the Labor Code of the Russian Federation.

2) The employee is obliged:

Performs his job duties conscientiously.
Follow the work schedule in the institution.
Maintain work discipline.
Comply with health and safety regulations.
Go through regular medical examinations.
Protect the employer's property.
Immediately inform management about the occurrence of circumstances that threaten the life and health of personnel.
Perform other duties as assigned by the TD.

Rights and obligations of the employer

The employer also has rights and obligations under the Labor Code of the Russian Federation.

1) The employer has the rights:

Changes and termination of TD on the terms established by the agreement and legislative norms of the Russian Federation.
Requirements from the working person to perform official functions and to be careful with the property of the enterprise.
Imposing disciplinary and material sanctions on an employee within the framework of the legislation of the Russian Federation.
Rewarding employees for conscientious work.

2) The employer is obliged:

Provide the specialist with work in accordance with the TD.
Provide safe working conditions.
Provide the employee with technical means, technical documentation and other attributes to perform job duties.
Provide special clothing and special clothing at the expense of enterprises. shoes and other protective equipment.
Organize periodic medical examinations, providing the employee with an average income upon passing the medical examination.
Compensate for harm caused to an employee while performing his official functions.
Organize employee training in safe working methods.
Keep records of working hours worked by the employee.
Pay the employee wages within the time limits specified in the TD.
Provide written information about the amount of accrued wages, additional payments and deductions.
Ensure the protection of personal information about the employee in accordance with the legislation of the Russian Federation.
Perform other duties in accordance with the Labor Code of the Russian Federation.

Employee remuneration

In this section of the TD it is necessary to display the size of the salary or tariff rate indicating the method of calculating the salary.

You will also need to note the additional payments and bonuses that the employee is entitled to, in accordance with the Labor Code of the Russian Federation and internal departmental regulations.

In addition, it is necessary to note the procedure and timing of salary payments.

Working time and rest time of the employee

According to the Labor Code of the Russian Federation, an employee can have a 5-day working week with 2 days off, a 6-day working week with one day off, or a working schedule with a sliding schedule, as well as part-time work for a certain category of persons.

In the TD it is necessary to display the beginning and end of the shift, and the time of the lunch break.

Also, the specialist has the right to annual leave, the duration of which must also be specified in the agreement. According to the Labor Code of the Russian Federation, an employee’s main vacation is 21 calendar days. If there are grounds, the specialist may be given additional days of rest.

Occupational Safety and Health

The management of the enterprise is obliged to provide the specialist with safe working conditions. To do this, you will need to note in the TD the working conditions indicating the class and nature of the work (normal, heavy or harmful/dangerous).

At the same time, a newly hired employee needs to undergo initial training and periodically undergo repeated training in occupational safety and health throughout his working life.

Social insurance and other guarantees

The management of the enterprise is obliged to provide compulsory pension, medical and social insurance.

In the TD, in the appropriate section, it will be necessary to specify this right, displaying such guarantees to the employee.

Other terms of the employment contract

If necessary, the employer can provide other conditions for TD, for example, for remote workers, homeworkers and individuals working for individual entrepreneurs.

It will also be possible to specify the working conditions after training the employee at the expense of the enterprise, as well as the conditions for termination of the trade agreement.

Changing the terms of the employment contract

According to the Labor Code of the Russian Federation, changes to the terms of the TD are allowed. As a rule, such changes can be made by agreement of the parties, except for the situations specified in the Labor Code of the Russian Federation.

All changes and approvals must be made in writing. These conditions may be displayed in a separate section or in the final provisions of the TD.

Responsibility of the Parties

The TD will need to note the responsibility of the parties for ignoring the terms of the signed agreement. It can be:

Violations of labor discipline or working hours.
Causing damage to an employee or enterprise.

As a rule, the parties are responsible for such violations within the framework of the Labor Code of the Russian Federation.

Final provisions

Finally, fill out the “Final Provisions” section, where the following may be noted:

Date of entry into force of the TD.
The procedure for resolving disputes between the parties.
Employer guarantees for non-disclosure of employee personal data.
The number of copies signed by the parties and having equal force, etc.

After filling out the document, the employee is obliged to carefully read the TD, and the document must be signed by the parties to the agreement, with one copy being given to the employee.

Transformation of cooperation due to expiration of TD time

The easiest option to transfer an employee to a new employment option is to simply wait until the term of the employment relationship specified in the contract expires. Here the parties must be guided by the norms of Art. 58 Labor Code of the Russian Federation. It provides that in the case when the period has expired, but neither party wanted to terminate the contract, it is considered extended, but indefinitely.

To do this you need the following:

During the period before expiration, neither the employee nor the employer must contact the other party to the employment relationship in writing and express a desire to terminate the employment contract.
After the validity period has expired, the employee must return to work - at least once. The moment he reappears at the workplace on the first day after the end of the contract, the employment relationship automatically turns into an open-ended one, and the previous conditions regarding the term lose legal force and are no longer taken into account.

Formally, the Labor Code of the Russian Federation in this case does not require the execution of any additional documents. However, in practice it is recommended to write:

An additional agreement to the employment contract, fixing its unlimited duration.
An order or instruction on behalf of the employer that approves this document.

The period of time during which contracts are valid

The concept of a “ fixed-term employment contract ” is spelled out in Art. 58 Labor Code of the Russian Federation. It also establishes the unconditional priority of a labor agreement without an end date over a fixed-term one. It is important to understand the difference between the documents.

Contract with a set end date

When a person gets a job, management may offer him to enter into a fixed-term employment contract, that is, an agreement that clearly states the calendar date of its end. But this is only possible in the presence of certain circumstances, an exhaustive list of which is presented in Art. 59 Labor Code of the Russian Federation. The list includes:

performing a certain type of work that requires no more than 2 months;
performing seasonal work when the “rules of the game” are dictated by natural conditions. That is, specific work can only be performed during the season, for example, harvesting;
performing work duties outside of Russia;
performing work not included in the list of main activities of the enterprise. This includes reconstruction of the building, commissioning of new equipment, installation and dismantling of new and old equipment;
signing a labor contract with persons applying for work in a legal entity, which was initially created for a specified period or to perform certain work;
concluding an employment agreement with a person who guarantees the completion of a certain amount of work within a specified period of time;
performing work directly related to the production or graduate practice of students at universities, colleges, and technical schools;
in other cases prescribed in Art. 59 Labor Code of the Russian Federation.

The given list is exhaustive. For other circumstances, management does not have the right to demand that a newly hired person enter into a fixed-term employment agreement.

Download the form for a fixed-term employment contract to fill out

A contract without a specified end date

If a person is hired for a job and the reason for employment is not included in the list given in Art. 59 of the Labor Code of the Russian Federation, management is obliged to conclude an employment contract with him without a predetermined expiration date. That is, the date of breakup is not written in the “body”. Termination of the agreement occurs on grounds, an exhaustive list of which is presented in Art. 77 Labor Code of the Russian Federation. This:

initiative of the employee himself;
written agreement of both parties to the relationship;
management initiative, but only in those cases specified in Art. 81 Labor Code of the Russian Federation;
circumstances that do not depend in any way on the will of the parties or on their desires.

That is, the algorithm for severing relationships for which the calendar date for their termination has not been determined in advance is strictly regulated by current labor legislation.

For example , hired personnel cannot simply not show up for work, motivating their actions by dismissal. He must write an application at least 2 weeks in advance, receive a payment and documents. The employer, in turn, also cannot declare that a particular employee has been fired. He must comply with the regulations. Otherwise, the termination of the relationship between the parties can be challenged. Judicial practice in such cases is quite extensive.

Download the form for an open-ended employment contract to fill out

Additional agreement on changing the term

In fact, an additional agreement in the case when the contract is extended due to the fact that the period has expired, but no one expresses a desire to terminate it, is a purely formal document.

However, it should be drawn up to avoid confusion in personnel documentation. If there is no agreement that changes the term of employment in the employer’s materials, the question may arise as to whether the employee was fired at all - or continued to work.

It is stipulated that this document must meet the following conditions:

Be in writing.
Be prepared in two copies, one for each party. Since one of the copies is given to the employee, he must put a mark on the second one indicating that he received his.

The document must contain the following information:

Name of the organization or name of the individual entrepreneur.
The name and position of the manager, by virtue of the law and the Charter, acting on behalf of the organization. If the employer is a citizen-entrepreneur, this clause is not required.
Full name of the employee whose fixed-term employment contract is being transformed into an open-ended one.
The position he holds in the company.
Details of a previously concluded employment contract (its date and number according to the internal document flow rules established at the enterprise).
The essence of the changes being made. The wording will be approximately as follows: “Due to the expiration of the validity period and due to the requirements of Art. 58 of the Labor Code of the Russian Federation, consider the employment contract No.... dated... concluded for an indefinite period.” The above version is indicative; the parties may use other wording.
Signatures of the parties. A copy given to the employee will also require a company seal.

An additional agreement, as a rule, is prepared by employees of the enterprise’s personnel service on the orders of its head.

Employer's order

After the additional agreement is signed, it is approved by order of the manager.

This is necessary because, by virtue of Art. 68 of the Labor Code of the Russian Federation, registration of labor relations with an employee is carried out using an order.

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

If the conditions of the relationship change significantly, a document of equal legal force is required to record this fact - that is, an order. A similar conclusion can be drawn from Art. 9 Federal Law “On Accounting”.

This is important to know: Concluding a fixed-term employment contract with pensioners

Previously, orders of this kind had to be issued in form No. T-1, approved by Resolution of the State Statistics Committee of the Russian Federation No. 1 of 2004.

Therefore, in order to approve an additional agreement to an employment contract, you can use not only this form, but also your own form developed and approved by the employer. The order must contain:

Name of the organization.
Document number and date.
Full name of the employee, his position and structural unit.
The conditions under which his work takes place from this moment on.
Position and name of the manager.

The order must be communicated to the employee against signature , so the corresponding column should be included in the form. But since it is an internal document, there is no stamp on it.

Necessary documents when changing conditions by agreement of the parties

In the event that the employee and employer decide to convert the contract into an open-ended one without waiting for its expiration, an additional agreement will be required. How to do it and when does it take effect?

Preparation and preparation of papers

The law does not indicate who can initiate the transfer of fixed-term employment relationships to indefinite ones. This can be done either by the employee by submitting a corresponding application during the contract period, or by the employer by inviting the employee in writing to change the conditions.

Regardless of who proposes to do this, the procedure will be the same:

An additional agreement to the employment contract is being prepared.
The employer issues an order that approves the document signed by the parties.

The specific wording used by the parties in the document remains at the discretion of the parties: the legislation does not provide standard forms and forms for employment contracts. In practice, changing the deadline can be formalized using statements like:

“Consider the employment contract No.... dated... concluded for an indefinite period.”
“Exclude from the employment contract No.... dated... clause number...” (here is the clause of the original contract that stated the validity period).

The parties may use other wording if they wish. The main thing in this case is to clearly and unambiguously establish in the employment contract the conditions under which it ceases to be limited to a certain period of validity.

In what cases can a fixed-term employment contract become indefinite?

An agreement that specifies its validity period can easily become indefinite if the following circumstances exist:

the agreement has expired, but the parties have not terminated their relationship;
the validity period was established without legislative grounds, which can easily be proven in court;
it was established that the organization, by concluding a fixed-term agreement, thus evaded compliance with the rights and guarantees of the worker.

It is necessary to conclude a new contract with the employee, which will no longer indicate the duration of its validity.

The procedure for changing a fixed-term employment contract to an open-ended one: when and how to make the transfer?

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

This process does not require a complete termination of the relationship and its resumption, that is, it is carried out without dismissing the employee: you just need to conclude an additional agreement to the contract that already exists and is urgent, and then ceases to be so.

However, when the employer intends to extend the joint work for a specific, definite period, then it will actually be necessary to formalize a full dismissal and rehire, with the signing of a new contract for a certain period, since the law does not provide for the option of extending a fixed-term contract, the maximum duration of which may be 5 years (Article 58, 59, 275 of the Labor Code of the Russian Federation).

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

But under some circumstances, a transfer from a fixed-term employment contract to an open-ended or permanent one occurs as if automatically.

When does a fixed-term employment contract become permanent? After the expiration date of the fixed-term contract, if the employee has not approached the administration with proposals regarding his further cooperation, and the administration, for its part, has not made any counter-proposals, then from the day following the expiration date of the fixed-term contract, the contract of unlimited cooperation begins to operate (Part 4, Article 58 of the Labor Code of the Russian Federation).

If the employee himself decides to continue further cooperation, or if the employer wishes to use the services of a person after the expiration of the Employment Contract, then 3 days before the end of this term a written notification must be received from one of the parties.

In one or the other option, no additional entries are required to be made in the person’s work book if the position or nature of the work has not changed .

How to terminate a contract without mistakes

If the employer warns the employee in writing about the termination of the fixed-term contract three days before the expiration of its term, the contract is terminated. Also, a temporary employee can resign early at his own request by notifying the employer two weeks in advance, or three days in advance if the term of his contract is less than two months. Or you can terminate the contract by agreement of the parties.

Oksana Vasilyeva, expert on legal issues in business, General Director of Mariox Center LLC:

According to labor law, a fixed-term employment contract can only be extended if the woman is pregnant. In other cases, either the term of the employment contract is changed, or the fixed-term employment contract is renegotiated. By agreement of the parties, three days before the expiration of the contract, a new fixed-term employment contract is concluded, or the employee is invited on an indefinite basis and an indefinite employment contract is drawn up in the same manner.

Waiting for the expiration date of the employment contract

Can a fixed-term employment contract become permanent? Although, in accordance with Part 4 of Article 58 of the Labor Code of the Russian Federation, changing a fixed-term employment contract to an open-ended or permanent one can be implemented automatically, however, it is still necessary to bring personnel documents into compliance. But it is more correct when all these papers are prepared in advance, on the eve of the expiration date of the contract.

What documents are required?

So, if the term of your contract with your employer is coming to an end, and you are increasingly asking the question: “How can a fixed-term employment contract be converted into an open-ended one?”, then it’s time to start preparing a number of documents. However, first you need to inquire about the willingness of your superiors to accept you on a permanent basis .

We receive an agreement

An additional agreement to change the term of the employment contract and its conditions is a document that is absolutely necessary (after all, the working conditions will be different), and it must be drawn up 3 days before the final date specified in the fixed-term contract. This is based on the logic that, in accordance with Article 79 of the Labor Code of the Russian Federation, in the event of separation, the administration must prepare and deliver to the employee a written notice of its decision exactly 3 days before the expiration of the contract period.

There are some nuances when compiling this paper:

it must be stipulated that the initial period is not extended (the law does not provide for this, except when a temporary worker becomes pregnant), but rather changes;
if a person at the same enterprise holds a different position (Article 72.2 of the Labor Code of the Russian Federation), which is the reason for changing the term of the contract, then this circumstance must necessarily be reflected in the additional. agreement.

Sample additional agreement on changing a fixed-term employment contract into an open-ended one:

When drawing up this paper, use the usual form.
This is important to know: An example of a completed employment contract for 2021

: name - additional agreement No. on changing the TD (number, date), lower left - date, right in the same line - name of the locality. So-and-so, referred to as “the parties,” have entered into this agreement as follows:

In connection with the transfer of an employee from position such and such to such and such and a change in the validity period of the TD on the basis of Articles 72, 72.2 of the Labor Code of the Russian Federation, the parties agreed to amend certain provisions of the fixed-term contract No.. from such and such date, concluded in the meantime -this and that, setting them out in the following wording:

point such and such (an employee is hired for a position such and such with a salary such and such);
clause such and such (this TD is unlimited from such and such a date).

The remaining clauses of the main TD remain in force. This is followed by the details and signatures of the parties. Below you can see examples of writing an additional agreement in 2 copies:

However, if you want to transfer an employee to another department or assign him other job responsibilities, then you need a completely different form of an additional agreement to the employment contract for a change in position. You may also be interested in the article “Changing passport data in an employment contract,” which contains useful information for cases when an employee for some reason changed his last name.

Order

Such an order is drawn up on the basis of an employee’s application to continue working at the enterprise on a permanent basis, that is, under a contract whose duration is not defined. The date in the application must be indicated 3 days before the expiration of the fixed-term contract, and the request to continue cooperation on an ongoing basis - from the date following the end of the TD. The application would not have been required if the terms of the TD had not changed.

Regular order form

: at the top - the name of the enterprise, below in the center - the Order, the line below on the left - the number and date, on the right - the name of the locality. Place the essence of the order in a short column on the left: Concerns changing the conditions of TD No. ... with employee XXXX, and then the wording contains instructions:

- based on application XXXX fixed-term agreement No.... dated.... treat it as indefinite;

HR officer and lawyer draw up an additional agreement to the Employment Agreement;
accounting department, personnel officer to make changes to the documentation.

The order is signed by the first person of the enterprise; visas must be issued by the head of the safety and health department (if there is one), and in his absence - by the chief accountant, lawyer and the person responsible for personnel work. Making changes does not mean making entries in the work book, no, this applies to other official documents - personal cards, accounting papers.

If you are interested in converting the document back, then read the article “Transferring an employment contract from an open-ended to a fixed-term one.”

NTVP "Kedr - Consultant"

LLC "NTVP "Kedr - Consultant" » Services » Legal consultations » Labor disputes » On replacing an open-ended employment contract with a fixed-term one

An open-ended employment contract was concluded with the manager. The founder proposes to the manager to make the employment contract fixed-term by concluding an additional agreement on this.

Question

Is this proposal legal?

Lawyer's answer.

Establishing a limited duration of an employment contract is possible only upon its conclusion. During your working life, you cannot change the term of an employment contract from open-ended to fixed-term.

According to Part 1 of Art. 58 of the Labor Code of the Russian Federation, employment contracts can be concluded:

1) for an indefinite period;

2) a certain period of not more than five years (fixed-term employment contract), unless a different period is established by the Labor Code of the Russian Federation and other federal laws.

A fixed-term employment contract is concluded when 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, namely in the cases provided for in Part 1 of Art. 59 Labor Code of the Russian Federation. In cases provided for in Part 2 of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract can be concluded by agreement of the parties to the employment contract without taking into account the nature of the work to be done and the conditions for its implementation (Part 2 of Article 58 of the Labor Code of the Russian Federation).

In accordance with paragraph. 4 hours 2 tbsp. 57 of the Labor Code of the Russian Federation, the date of commencement of work, and in the case where a fixed-term employment contract is concluded, also its validity period and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with the Labor Code of the Russian Federation or other federal law, are mandatory for inclusion in employment contract terms and conditions.

{Question: Is it possible, with the consent of the employee, to carry out a permanent transfer to a temporary rate (introduced temporarily for seasonal work) and conclude an additional agreement with the employee in this regard to the employment contract, changing the term of the contract from open-ended to fixed-term? (“Website “Onlineinspection.RF”, 2017) {ConsultantPlus}}

Based on the above, the current legislation does not provide for a change in an employment contract from an open-ended to a fixed-term one. A specific term of an employment contract can only be established upon its conclusion.

Selection of documents:

Question: The company has decided to convert all open-ended employment contracts to fixed-term ones. Is this legal? Is there any responsibility for transferring all employees to fixed-term employment contracts? (“Kadrovik.ru”, 2015, N 6) {ConsultantPlus}

Question: Can we transfer an employee permanently to another position in our organization by terminating an open-ended employment contract and concluding a fixed-term one? (“Human Resources Department of a State (Municipal) Institution”, 2013, No. 12) {ConsultantPlus}

Question: Does the founder, when changing the type of municipal institution to a new budgetary one, have the right to conclude a fixed-term employment contract with its director? (Expert Consultation, 2012) {ConsultantPlus}

Question: ...Is it necessary to conclude a new employment contract when an employee is internally transferred to the position of General Director under a fixed-term employment contract with a probationary period? (Expert Consultation, 2016) {ConsultantPlus}

The explanation was given by Igor Borisovich Makshakov, legal consultant of LLC NTVP Kedr-Consultant, August 2017.

When preparing the answer, SPS ConsultantPlus was used.

This clarification is not official and does not entail legal consequences; it is provided in accordance with the Regulations of the CONSULTATION LINE ().

Transformation of a fixed-term employment contract into an open-ended one

This letter clearly states that if the parties did not declare their intentions, and the person continued to work after the expiration of the contract (Article 58 of the Labor Code of the Russian Federation), then this document has lost its legal force, and the TD becomes unlimited. However, to bring the documents into compliance, additional information is required. agreement, and no entries need to be made in the employee’s work book.

Additional agreement on changing conditions

This paper is drawn up by a lawyer, or a personnel officer under the guidance of a lawyer. The essence of the document is that the wording should sound like this: Due to the fact that none of the parties to the urgent TD demanded its termination at the end of its validity period, and the employee continues his activities, clause of such and such TD should be stated as follows: “This The TD was concluded for an indefinite period. All other conditions of such and such’s TD are considered unchanged.”

In order to correctly and legally make a change in the “Wages” column, we recommend reading the article “Changes in wages in an employment contract.”

This means that the document turns into another one, with an indefinite period, which is more preferable for the employee. A person who has received a job for a while while a permanent employee is absent often would like to stay and continue cooperation.

In this case, he needs to approach the management 3 days before the expiration of the TD and find out how realistic the prospects of remaining a member of this work collective are , and if the answer is positive, write a statement, or wait - suddenly there will be no reaction from the administration, and then everything will happen automatically . We hope the article helped answer the question: “How to turn a fixed-term employment contract into an open-ended one?”

Didn't find the answer to your question? Find out how to solve exactly your problem - call right now:

Common Mistakes

The main mistake of the employer is the opinion that benefits do not apply to an employee under a fixed-term contract and it is easier to fire him. Violation of established procedures leads to the automatic transfer of a fixed-term employment contract to an open-ended one. If 3 days before the expected date of completion of cooperation a person has not received a notice of termination of the contract, it can be considered extended for an indefinite period, i.e. before a decision is made to dismiss an employee.

If, upon termination of cooperation, difficulties arise in determining the last working day, it is advisable to draw up an acceptance certificate for the work performed.

What is a fixed-term employment contract?

A fixed-term employment contract is a contract with an employer concluded for a certain period. According to Article 57 of the Labor Code of the Russian Federation, the maximum period is 5 years, the minimum is up to two months (seasonal activity).

The period of the agreement depends on the nature of the activity. It ceases to operate due to absolute, relative or conditional circumstances.

Example. The LLC company is hiring citizen E.L. Naumova. The future employee has age pensioner Guided by Part 2 of Art. 59 of the Labor Code of the Russian Federation, the company, with his voluntary expression of will, drew up a temporary employment contract.

What is the term of the contract

The Civil Code, which establishes the general rules for the conclusion and validity of an agreement, does not define its duration. But there is Article 425 of the Civil Code of the Russian Federation, which indicates that the contract comes into force and becomes binding on the parties from the moment of its conclusion.

If the agreement specifies the date of conclusion, but there is no date or event with which the termination of the contract is associated, then it is recognized as unlimited. In this case, it is possible to dismiss an employee without his consent only for a number of reasons (Articles 71 and 81 of the Labor Code of the Russian Federation).

In a fixed-term employment contract, the validity period may be tied to a specific date or to the occurrence of a certain event. For example, before the main employee returns from maternity leave or returns from study without work.

In what cases is it signed?

According to the general procedure, employment agreements are signed for an indefinite period of validity. A temporary contract may be concluded if it is expressly permitted by law. The Labor Code also provides for situations in which this can be done by mutual will of the parties.

Let us list the unconditional grounds for signing a temporary agreement (Part 1 of Article 59 of the Labor Code of the Russian Federation):

the employee takes a temporary job in the place of another employee;
non-permanent activity (up to two months);
seasonal work;
the citizen is sent to another country;
a person is hired for a position related to temporary activities for the reconstruction of production;
the company was created for a certain period;
the result of work activity is tied to a specific date;
a citizen is accepted for an internship;
a person has been elected to an elected position;
the unemployed person is sent by the labor exchange to short-term or public work;
a citizen undergoes alternative civilian service.

This is important to know: Employment contract for individual entrepreneurs

The Labor Code of the Russian Federation and federal legislation may establish other grounds.

By agreement of the participants, the document is signed in the following situations (Part 2 of Article 59 of the Labor Code of the Russian Federation):

the employer is a small business with up to 35 employees (in retail trade, consumer service organizations - up to 20);
the employee has received a pension due to age or disability, and therefore cannot work permanently;
a citizen moves to work in a company located in the northern regions;
the person is hired for work related to emergency situations;
the employee is hired for a position through a competition;
a citizen is accepted to perform creative activities;
The company hires a director, his deputy, and a chief accountant;
the employee is a full-time student;
a citizen is accepted into the crew of all types of ships;
the person gets a part-time job with the employer.

Important! It is allowed to hire citizens for temporary work to replace an employee signed under a fixed-term contract.

Legitimate reasons for urgency

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

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

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

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

A fixed-term employment contract, by agreement of the parties, can be concluded only on a limited list of grounds:

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

Employer, remember:

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

Is it possible to convert a fixed-term contract into a permanent one?

The possibility of transferring an employee from a fixed-term employment contract to an open-ended one is provided for by the general rules on changing the contract (Article 72 of the Labor Code of the Russian Federation).

A temporary contract can be extended for an unlimited period in the following cases:

the parties decided to recharacterize the agreement by mutual consent;
the temporary agreement expired, but the parties to the relationship continued to cooperate;
the court recognized the temporary employment relationship as permanent.

Despite the fact that the agreement can be renewed automatically, it is advisable to prepare personnel documents.

How to secure the procedure to avoid claims from the employee

If an employee decides that the transfer violates his labor rights, he can complain to a supervisory authority or to court. Then the actions of management will be considered illegal. He will be fined and the employee will be returned to a permanent relationship. To avoid this, you can take one of the following actions:

ask the person to write an application for resignation of his own free will, and then an application for employment, but under a fixed-term employment contract. This path is quite cumbersome. You need to issue a dismissal order, fill out a personal card, pay wages and compensation for unused vacation. Then take the job again, issue an order, draw up a new contract (for example, a pensioner’s contract) with a certain validity period, make entries in your personal card and work book. In addition, the employee may think that they want to get rid of him in this way and refuse to be fired. It's a matter of trust;
Any agreement with an employee must be drawn up in writing in the form of an additional agreement. You should not rely on verbal understanding. Documents signed by both parties will help protect management, avoid fines and prove your case in court.

The Labor Code of the Russian Federation provides for the responsibility of the employer for violation of the rights of a working person.

In what cases is it impossible to extend an employment contract?

In some situations, it is not possible to extend the relationship. These include seasonal work, employment during the absence of a permanent employee, holding an elective position, and other cases listed in Part 1 of Article 59 of the Labor Code of the Russian Federation.

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

If the employer is interested in further cooperation with the employee, he can offer another place and arrange a transfer. It is also possible to sign a new document for another position for an indefinite period.

Duration of the labor union

The concept of a fixed-term employment contract is introduced into the relationship between employee and employer by Article 58 of the Labor Code of the Russian Federation. It also establishes the unconditional priority of open-ended documents over urgent ones and limits the chances of concluding the latter .

Indefinite

The majority of agreements to work in Russia do not have a validity period and end in cases specified by the Labor Code. It could be (Article 77 of the code):

decision of both parties;
poor test result;
employer initiative (only legal cases);
employee initiative;
circumstances beyond the control of both;
a number of more special cases.

In order for an open-ended employment contract to be terminated, something must happen. And the conditions of this “something” are established not by the employer, but by the law. At the same time, the employee can leave his place at any time, giving two weeks' notice . This is how the state compensates the employee for his dependent position on the employer, although sometimes it goes too far.

By signing the employment papers, the employee and the employer can agree that their relationship will last for a certain period, predicted in advance. This period cannot be more than five years, and its end may be linked to:

exact date;
the end of the work front;
exit of the person being replaced;
the end of the season.

Not every employee can be hired on an urgent basis

– TC considers this type of relationship as a necessary measure. Article 59 offers an exhaustive list of cases when an employment contract can be fixed-term due to the nature of the work and another, also closed list - when the end of the work period can be established with the consent of the recruit.

A contract with a term can easily become indefinite if:

the employee and employer did not terminate the relationship on time;
there were no sufficient grounds to set a time limit;
The organization avoided the guarantees and rights of the employee.

In the second and third cases, the court can begin to restore the contract in an unlimited form; the first, in fact, is an agreement of the parties.

You may also be interested in the article “Fixed-term employment contract with a pregnant woman,” in which we will talk in detail about all the pitfalls that you will have to face when concluding this document with an employee in an interesting position.