Labor wars: is it possible to extend a fixed-term employment contract?

An order to extend a fixed-term employment contract is an important local regulatory act, as well as the only acceptable way to document the agreement reached between the employee and the employer in this area.

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There are two types of contracts: fixed-term and unlimited. It is possible to change the conditions in both. Only the former require a special occasion.

Reasons for extending an employment contract

Extension of a fixed-term employment contract may be necessary for a variety of reasons; they are all described in Articles 261, 348 and 332 of the Labor Code. These are exceptions to the general rule. For other cases, such an extension is not provided. So, an extension is possible if:

• The position held by the employee is elective. When elected again, a separate fixed-term contract must be concluded with him or the previous one must be extended. This applies to university teachers and rectors. These points are referred to in Article 332 of the Labor Code.
• To the athlete when extending his employment relationship with management. This is mentioned in Article 348 of the Labor Code, in its fourth paragraph.
• An employee who has entered into a fixed-term employment contract with an organization is pregnant. This is a particularly common case. In order to extend the agreement for this reason, one of the parties must have a certificate from the antenatal clinic. The latter must indicate that the gestational age exceeds 12 weeks.
• The scope of temporary work on the project has not been completed. This is a non-trivial situation that requires particularly compelling reasons and the involvement of piles of additional documentation in the process. In addition, such actions may be considered illegal in some cases.
• The employee liked him, the employer plans to enter into an open-ended employment contract with him in the future, but has not yet decided to take this step.
• The employee, who was replaced by another, decided to take maternity leave or sick leave again.

When replacing one pregnant employee with another pregnant second lady, the contract may not be renewed. Each specific situation requires a special approach. But it is important to understand that the period can only be extended with a valid document. It is impossible to conclude an additional agreement to a fixed-term employment contract if its validity period has already expired.

Hiring for temporary work and dismissal.

When applying for such a job, the employee presents to the employer on a general basis all the necessary documents referred to in Art. 65 Labor Code of the Russian Federation.

When concluding an employment contract, in addition to the mandatory conditions provided for in Art. 57 of the Labor Code of the Russian Federation, it should be noted that the employment relationship is temporary in nature, indicate the duration of the contract and the reasons for its conclusion, for example: “An employee is hired for a temporary job as an “auditor assistant” to conduct an audit of accounting documentation for two months. The contract period is from 10.10.2011 to 09.12.2011.” An employment order is issued on the basis of a fixed-term employment contract.

The instructions for filling out work books, approved by Resolution of the Ministry of Labor of the Russian Federation dated October 10, 2003 No. 69, do not provide for making an entry in the work book about the urgent nature of the concluded employment contract. And according to clause 3.1 of these instructions, when hiring, in column 3 of the employee’s work book, an entry is made about acceptance or appointment to a structural unit of the organization, indicating its specific name (if the condition for working in a specific structural unit is included in the employment contract), the name of the position ( work), specialty, profession indicating qualifications. The entry will look like this: “Admitted to the accounting department as an assistant auditor.”

Do not forget that when hiring temporary workers for a period of up to two months, they are not subject to a probationary period (Article 289 of the Labor Code of the Russian Federation).

Regarding the dismissal of a temporary employee, the conditions for termination of a fixed-term employment contract are established in Art. 79 Labor Code of the Russian Federation. In this case, it will terminate upon expiration of its validity period. At least three days before, the employee should be notified of the termination of the employment contract on the above grounds. Upon dismissal, the following entry is made in the work book: “The employment contract was terminated due to the expiration of its validity period, paragraph 2 of part 1 of Article 77 of the Labor Code of the Russian Federation.”

If the employee, after the expiration of the two-month term of the fixed-term employment contract, actually continues to work and the employer did not demand termination of the employment relationship due to the expiration of the contract, then it is considered to be concluded for an indefinite period (Part 4 of Article 58 of the Labor Code of the Russian Federation).

Let us remind you that a temporary employee has the right to paid leave at the rate of two working days per month of work. If an employee does not take a vacation, he is paid compensation upon dismissal (Article 291 of the Labor Code of the Russian Federation).

Nuances

In most cases, a fixed-term employment contract cannot be extended. Then the parties will have to resort to terminating existing papers and signing new ones.

It is also worth keeping in mind that, according to the Labor Code, if a fixed-term employment contract is concluded with an employee for two months or less, then he should not have a probationary period. If the urgency is limited to six months or less, then the probationary period should not exceed two weeks.

Therefore, when extending a fixed-term contract, it is possible to simultaneously extend the probationary period. This move could also be aimed at extending the duration of the temporary agreement.

If neither the employer nor the employee takes the initiative to terminate the fixed-term contract, then without recording any information in the employment contract it becomes indefinite. This is clearly stated in Article 58 of the Labor Code.

Legislator's position

According to the position of the Supreme Court of the Russian Federation, in particular, following from Determination No. 41-КГ14-10 of June 27, 2014, incorrect extension of a TD is grounds for recognizing it as indefinite. At the slightest violation by the manager of the legal rights and interests of the hired employee, business owners will face penalties (compensation for moral damage, payment of compensation for forced absence, etc.). However, the employer’s actions can be declared illegal only through the court if an employee files a claim.

Opinions on this issue are divided. For example, in the report of Rostrud for the third quarter. 2021 it is expressly stated that in most cases the extension of the period of temporary TD is unacceptable.

At the same time, law enforcement practice shows that in some cases a painless conclusion of additional agreement still takes place, namely when:

• maintaining the criterion of urgency;
• compliance with the maximum period for temporary TD, namely up to 5 years;
• compliance with the established (written) form of the agreement (Article 72 of the Labor Code of the Russian Federation);
• there are grounds for continuing cooperation (Article 59 of the Labor Code of the Russian Federation).

But this was not always the case. For a long time, the courts interpreted the very fact of concluding an additional agreement under a temporary contract as a violation of the rights of employees, and issued a ruling on recognition of the additional agreement. agreements are void, and the TD is unlimited. Fortunately for entrepreneurs, in the resolutions since 2014, after the official publication of the new position of the RF Armed Forces, a different situation has been observed. The legislator has provided business owners with the potential opportunity to extend urgent trade agreements. The employer's right is determined by the absence of contradictions in Art. 58, 59, 72 and 79 of the Labor Code of the Russian Federation. But there are certain restrictions.

Elements of an order

The order is issued on the organization’s letterhead or on a regular A4 sheet, on which the organization’s details are indicated at the top. At the very beginning, the name of the order, its number, date of signing and city should be written down.

The main part of the order should include the following data:

• Reasons for extension. The most common reason is the employee's pregnancy. According to existing legislation, it is impossible to terminate employment contracts with this category of workers, and they are unable to perform their functional duties for some time. Therefore, they resort to extending deadlines.
• Documentary grounds for issuing the order. This can only be an application from the employee, a certificate from the antenatal clinic and any other document explaining the need to extend a fixed-term employment contract. The number and date of the application are indicated. A reference to the latter is a mandatory part of the order.
• Full name of the employee.
• New contract term. It can be formulated as follows: “Until the end of pregnancy”, “Until the expiration of the sick leave for pregnancy and childbirth” or using a specific date.
• Which employee remains responsible for carrying out the order.

The order to extend a fixed-term employment contract is certified by the signature of the head of the organization. Another obligatory “autograph” is from the employee himself, who appears in the order. If a person other than the manager is responsible for carrying out the order, then he must also sign.

In addition, copies of the documents mentioned in the text are attached to the order.

Extension of deadlines due to coronavirus

Until the end of 2021, taking into account the innovations, if necessary, the order execution period is extended by agreement of the parties (Part 65 of Article 112 44-FZ). A change on this basis is permissible if:

1. Justifications for changes and decisions of authorities. For example: a decision by the local administration to extend the contract due to coronavirus.
2. Security deposited by the contractor to the customer's account.

In Part 65 of Art. 112 FZ-44 indicates how long the contract can be extended due to the pandemic - until the end of 2021. When making changes, we recalculate the collateral, if necessary, upward or downward, and set a new deadline for returning these funds to the supplier. We do not refund the warranty that was provided. There is no need to request the transfer of funds under this document.

Extend the execution extension in the form of an additional agreement, the fact of signing of which will be reflected in the register of contracts.

Order storage period

The order relates to personnel documentation. Therefore, it is advisable to preserve it for 75 years. It regulates the duration of work of staff in the institution. In possible proceedings regarding deadlines, it may be useful as documentary evidence of the fact that the employee’s time for performing his duties has been increased.

In short, an order to extend a fixed-term employment contract is concluded in special cases. In most situations, it is much better to terminate the agreement and enter into a new one.

Conditions

In order for the mutual consent of the counterparties to be a sufficient condition for the continuation of existing agreements, the main agreement must stipulate:

• Validity.
• What methods of extending the agreement exist?
• How many times can the contract be renewed (one, two, unlimited).
• How one of the parties (or both) can terminate the contract.

It is also worth considering that it is impossible to extend something that has already ended. The contract must be renewed before it is terminated.

Otherwise, there is a possibility of errors and the possibility of fraud by one of the parties.

In most cases, if there is a constructive business relationship between the parties and the terms are clearly stated, misunderstandings are eliminated.

Extension by decision of the authority

If the contract cannot be fulfilled due to circumstances that the customer and supplier cannot change, the authorities have the right to decide to shift the closing date. The basis for extending the terms will be a government decree or an administration resolution on changing the terms of the contract (Resolution No. 1186 of December 19, 2013).

Which authority is authorized to make a decision depends on the parameters of the contract:

Automatic extension of contracts under Federal Law No. 44

The contract legislation does not provide for automatic extension of the contract for the next financial year. In this regard, customers are recommended to annually purchase goods, works, and services in accordance with needs. Including those contracts that are concluded on an ongoing basis - the supply of electrical energy, water resources, gas supply, etc.

At the same time, the Civil Code allows for the extension of the contract for the supply of electrical energy (clause 2 of Article 540 of the Civil Code). This means that if the customer decided to change the utility provider and did not notify him of this during the validity of the contract that was concluded, its terms continue to apply. The resources consumed by the customer are subject to payment, and if a debt arises, penalties are assessed in the form of fines and penalties.

Extension of government contracts with a single supplier

Changing the closing date of the contract, which was concluded with unit. source, it is permissible if (clause 10, part 1, article 95 44-FZ):

1. The agreement is concluded with the monopolist.
2. The subject of the purchase are:
   utilities (water supply, gas supply, etc.);
3. management of an apartment building, etc.;
4. building maintenance, etc.;
5. transmission of electrical energy;
6. rent

1. An agreement was concluded by an authority for the treatment of a citizen of the Russian Federation abroad.
2. The purpose of the order is to ensure the interests of the Russian Federation abroad through legal services.