What grounds may there be for concluding a fixed-term employment contract?

In the practice of working with hired personnel, situations sometimes arise when the work of employees is needed not on an ongoing basis, but for some time. In this case, it is worth concluding a fixed-term employment contract with such employees. Unlike ordinary (unlimited) contractual relationships, such contractual relations cannot last longer than the time specified by law.

Fixed-term contracts have their own nuances of conclusion, which should be observed by both parties in order to avoid misunderstandings, which will then have to be resolved in court. Let us analyze the grounds for formalizing such labor relations, their legal basis, as well as the main points that employees and employers need to take into account.

Legislative justification for fixed-term contracts

The word “urgent” in the definition of this type of contract does not mean any additional speed of its execution; it comes not from “urgency”, but from “deadline”. This is how it is declared to differ from contracts that are concluded for an indefinite period.

In the usual form of employment contractual relations, the start date of work is precisely known, but the time of separation and the reasons for dismissal cannot yet be determined. But when the last condition is known to both parties, that is, both the employee and the employer know when they will terminate their cooperation agreement, it is advisable to formalize the relationship with a predetermined period - a fixed-term employment contract .

The Labor Code of the Russian Federation calls an employment contract mandatory when formalizing the “employee-employer” relationship (Article 56 of the Labor Code of the Russian Federation), and the term is its essential condition. Options when an employer gives an employee temporary employment are defined in Art. 59 Labor Code of the Russian Federation. Their determining factor is an important circumstance: a fixed-term employment contract is legal only when, for objective reasons, it is impossible to conclude a permanent one.

NOTE! To conclude such an agreement, the will of the employer and even the consent of the employee are not enough; its execution must comply with the grounds given in the legislation. Otherwise, if you have to deal with it in court, a fixed-term contract concluded on an illegitimate basis will be recognized as unlimited.

The attractiveness of fixed-term employment contracts

The party that benefits most from entering into a fixed-term rather than an open-ended contract is the employer. The reasons are obvious:

• an employee on a temporary basis is more manageable;
• It is easier to motivate a “conscript”, since the extension of cooperation with him directly depends on the management;
• it is much easier to carry out the dismissal procedure;
• an employee dismissed at the end of his term cannot challenge such dismissal;
• In this way, you can get rid of any categories of employees, even the most socially protected ones.

For workers, as a rule, permanent employment is preferable, providing certain guarantees and confidence in their future. Domestic legislation and the International Labor Convention (ILO) adhere to the same position, seeking to minimize the number of workers employed on a temporary basis.

Features of a fixed-term employment contract

The determining factor in the choice in favor of the urgency of contractual relations is an important circumstance: a fixed-term employment contract is legal only when, for objective reasons, it is impossible to conclude a permanent one.

This reason must be indicated in the text of the contract.

The validity period of such an agreement cannot exceed 5 years. If the document does not indicate specific terms or an event that terminates the contractual relationship, it will automatically be considered a contract with an indefinite period. Likewise, if a period of more than five years is specified.

Termination of a fixed-term contract must be indicated in the text. This is possible in two ways:

• indicating a specific date when the contract will be terminated;
• designation of an event, the occurrence of which terminates the validity of the fixed-term contract.

The arrival of the final date does not mean immediate termination of work: the employee must be notified in writing 3 days in advance of the upcoming dismissal in accordance with its expiration. If this is not done, the dismissal can be challenged.

In the second case, prior notification is impossible, since the occurrence of an event automatically terminates the fixed-term contract, as provided for by its terms. Most often, such an event is the return to work of the main employee, instead of whom a temporary one was hired.

What form does the employment contract take?

An employment contract is concluded in the form of a written document (Article 67 of the Labor Code of the Russian Federation) and is endorsed by both parties participating in the agreement. It is compiled in 2 identical copies intended for each party. On behalf of the employer, it is signed by the employer himself or his authorized representative. The employee signs on the employer's copy upon receipt of his copy of the contract.

If, after signing the employment agreement, some necessary conditions are not reflected in it, this will require changing it by drawing up a bilateral written amendment, which will become an integral part of the agreement.

With an employee who was actually allowed to work before concluding an employment agreement, it is formalized no later than 3 days from the date of the establishment of the employment relationship, if the admission was carried out by a person who has such a right, and the employer has no objections to the conclusion of the agreement (Article 67, 67.1 of the Labor Code RF).

With whom can you enter into fixed-term employment contracts?

Employers formalize such relationships with those employees whose nature of work does not make it possible to determine the duration of the working relationship or, on the contrary, quite clearly indicates their end. Such categories of personnel include, for example, the following:

• seasonal workers;
• employees hired to complete a specific type of work by a specific date;
• employees who were sent to work abroad or to another branch of the organization;
• specialists hired from outside to perform work not provided for by the organization’s core activities;
• teachers who can work in the corresponding position only for the duration of the competition;
• replacing an employee on long-term sick leave or maternity leave, etc.

Transfer to a fixed-term employment contract from an open-ended one

As a rule, employees work under an open-ended contract. However, sometimes there is a need to transfer to a fixed-term contract. This can be done, but the procedure must comply with all the rules.

Reasons for transferring to a fixed-term employment contract

An employee can only be transferred to a fixed-term contract if there are sufficient grounds for doing so. If there are no such grounds, the agreement will be considered unlimited. An employer must not enter into fixed-term agreements for the purpose of deviating from providing employees with rights and guarantees. Let's look at the reasons why an employer makes a transfer:

• The employee is appointed to replace the temporarily absent employee. The latter retains his place of work.
• An employee is sent to temporary work abroad.
• The work involves a temporary expansion of production.
• The employee has a disability.

That is, transfer to a fixed-term contract is relevant in cases where the employee’s status changes. For example, he developed health restrictions.

Is it legal to transfer to a fixed-term contract?

The issue of the legality of transferring an employee to a fixed-term agreement is extremely controversial. If the employer initially signed the employee up to an open-ended contract, he must ensure compliance with the terms of this agreement. That is, the worker receives the right to work for an unlimited time.

The contract can be terminated only on the basis of the clauses established by the Labor Code of the Russian Federation.

For this reason, transferring an employee from an open-ended to a fixed-term contract is not legal. The employer cannot, for the purpose of transfer, simply enter into an additional agreement. The employee, if desired, can easily challenge this document.

Another significant mistake is drawing up a new agreement while the previous agreement is still in effect. According to the law, if two documents apply to an employee, the document with the most favorable conditions will be valid. In this case, the most advantageous would be an open-ended contract, since it provides a larger list of rights.

IMPORTANT! Many employers believe that entering into a new agreement automatically cancels the previous agreement. However, this is a wrong position. In order for only one act to be in effect, the old act must be legally repealed.

How to legally transfer a person to a fixed-term contract?

The only legal way to transfer an employee to a fixed-term contract is to terminate the previous agreement and draw up a new one. However, you need to take into account all the disadvantages of this path:

• The need to pay compensation for vacation that was not used.
• The accrual of length of service for vacation registration begins anew. In order for an employee to be able to legally go on vacation, he needs to work for 6 months. For example, an employee under the first open-ended contract worked for 5 months. That is, after a month he can go on vacation. However, if the previous agreement is terminated, another agreement is drawn up, the vacation will be legal only after 6 months.
• You will have to draw up cadastral documentation for the employee as a newly hired employee.

The legislation does not provide for a simplified procedure for dismissing an employee and rehiring him. The listed difficulties are related to preventing abuse.

Procedure for drawing up a new employment contract

Let's consider the legal procedure for transferring an employee to a fixed-term contract by drawing up a new agreement:

1. The employer conducts a conversation with the employee and offers him new working conditions. Explains the translation scheme.
2. The employee resigns at his own request or by agreement of the parties.
3. A new employment contract with a limited duration is immediately drawn up. The manager issues an order to hire a person.
4. The relevant information is entered into the work book.

This method of transfer is more complicated, but it is legal.

What documents are needed

The procedure for concluding an employment contract includes the right of the employer to ask the applicant for documents.

1. Passport or other document confirming the identity of the applicant.
2. Work book. When an applicant is employed for the first time, has lost his work permit, it is damaged, it will be taken over by the organization’s personnel service, and the part-time worker must submit a certificate or a certified copy of the work record.
3. A part-time worker entering a production facility with harmful, dangerous factors will be required to provide a certificate about the conditions at the main workplace. According to Art. 282 of the Labor Code of the Russian Federation, part-time work in hazardous, hazardous production is prohibited if the employee works in such conditions at his main place.
4. Insurance certificate of compulsory pension insurance. For those who are employed for the first time, it is formalized by the organization that accepts it.
5. Military ID or registration.
6. A document that indicates completion of a vocational educational institution or courses. For example, the driver must have a license to drive vehicles of the appropriate category.
7. A certificate that the applicant has not been convicted and has not been subject to criminal prosecution. The certificate will be needed when applying for a job:
   in air transportation;
8. in ensuring safety in transport, in the fuel industry, in the electric power industry;
9. pedagogical profile;
10. related to minors: their recreation, health improvement, medical care;
11. to sports organizations where minors are members, cultural and art organizations where they work (Articles 331, 351.1 of the Labor Code of the Russian Federation);
12. to clearing organizations.

1. A certificate that the applicant has not been administratively punished for the use of narcotic or psychoactive substances. Such a certificate is needed to conclude a contract when entering security units in transport, aviation, private security, river or sea vessels, when future work is related to operating trains.
2. Written permission of one parent, guardianship and trusteeship authorities for the admission of fourteen-year-olds and younger.

Documents not specified by the legislator cannot be required.

Legitimate reasons for urgency

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

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

The labor legislation of the Russian Federation (Part 1 of Article 59 of the Labor Code of the Russian Federation) allows 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.

Employment contract vs contract: what to choose

Labor relations with an employee are formalized by concluding an employment contract (for an indefinite period, fixed-term) or a contract. Let's look at how a contract differs from other types of employment contracts, and find out when it is better for an employer to conclude a contract with an employee, and when to sign another employment contract.

Employment agreement and contract: relationship between concepts

The definitions of the concepts “employment agreement” and “contract” are contained in the Labor Code (LC). Based on the analysis of these concepts, we can conclude that the concept of “employment contract” is broader than the concept of “contract”.

Based on the classification provided for by law, all employment contracts can be divided into two types <*>:

1) for an indefinite period (unlimited) - when the employment contract does not specify the duration of its validity;

2) urgent - concluded for a period of up to 5 years. The legislation contains cases when a fixed-term employment contract is concluded, in particular:

- for the duration of certain work, when the time of its completion cannot be determined;

— for the duration of seasonal work;

- for the period of absence of the main employee, who retains his place of work (position/profession), etc.

As a general rule, a fixed-term employment contract is concluded when it is impossible to hire an employee on a permanent basis and conclude an employment contract with him for an indefinite period. Since, based on the nature of such work and the conditions for its implementation, the upcoming work is temporary in nature <*>.

Note: In some cases, a fixed-term employment contract can be concluded by agreement of the parties even when the work is permanent. For example, when an employee goes to work <*>: - part-time; - with an employer who is an individual entrepreneur or a micro-organization.

The contract is a type of fixed-term employment contract <*>. At the same time, it has a number of distinctive features compared to a fixed-term employment contract. We will consider them below in the text.

Note! It is not correct to use the phrase “employment contract”. Because there is no such concept in labor legislation. It is correct to say “contract” and/or “contract with the employee.”

Schematically, the position of the types of employment contracts can be represented as follows <*>:

Scheme 1. Provision of types of employment contracts

The main differences between the contract and other types of employment contracts

Since a contract is a type of employment contract, the general requirements for the procedure for concluding a contract, changing and terminating it, as well as for regulating the relationship between an employee and an employer also apply to a contract. At the same time, the contract has differences from other types of employment contracts and some features <*>.

The differences between the contract and other employment contracts (fixed-term and indefinite) are presented in the following table:

In what cases is it better for an employer to choose a contract?

We believe that for an employer a contract may be preferable to other types of employment contracts when he wants:

1) hire an employee for a permanent job for at least a year. At the same time, the employer is interested in the employee working the entire term and not resigning prematurely.

Let us remind you that a contract employee cannot resign at will. Employment relations with an employee under a contract are terminated according to the general rule due to the expiration of its validity <*>.

Cases when an employee can initiate his dismissal before the end of the contract: by agreement of the parties or at the request of the employee. However, in the first case, you need to obtain the consent of the employer, and in the second, you need to find valid reasons for terminating the contract. In the absence of both, the employee will have to work out the entire term of the contract <*>;

2) motivate the employee to work conscientiously and not violate production, technological, performance and labor discipline. We believe that the contract encourages the employee to be conscientious with additional incentives and punishments. We think that such motivation is also provided by the legal requirements for the timing of renewal (conclusion of a new) contract with conscientious employees in the event of the employer’s decision to continue employment relations with them after the expiration of the contract;

3) pay the employee’s salary once a month, which is only possible when concluding a contract. For example, such a need may arise when the employer does not have the opportunity to do this more often <*>.

Note! Only contracts must be concluded with some employees. For example, with heads of government organizations and civil servants <*>.

When another type of employment contract is more appropriate than a contract

The employer may have situations when it may be more appropriate for him to choose other types of employment contracts instead of a contract, in particular:

1) fixed-term employment contract when an employee is needed <*>:

- for a period of less than 1 year.

The contract can be concluded for a minimum of 1 year. If the contract is concluded for a shorter period, the expiration of such a period is not grounds for dismissing the employee. In this case, the employment relationship with the contract employee continues until the end of the minimum one-year period <*>;

- for a period that is limited by the time of completion of certain work or the occurrence of any event.

It is not advisable to enter into a contract for a period until the completion of work or before any event. The exact calendar period of work is unknown in these cases. The event may occur and the work may be completed before the contract expires. Then the employer will find himself in a difficult situation. After all, he will have to decide what to do with the employee whose work he no longer needs;

2) contract for an indefinite period , when an employee is required on an ongoing basis for a long period. Especially when such a period will be more than 5 years.

Concluding an agreement for an indefinite period will relieve the employer of the need to track the duration of the agreement, since such an agreement does not contain it <*>. The employer also does not have to deal with extending the contract (concluding a new one) when its term expires.

Note: The legislation establishes sample forms that provide all the necessary conditions and information: - an employment contract; - a contract between an employer and an employee. For some categories of employees, special sample forms of contracts are provided, for example: with the head of a government organization, with a temporary manager, etc.

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