An employer who has entered into an employment contract with an employee is obligated. Should an employment contract be concluded with an employee who was hired at a time when employment contracts have not yet been introduced? If yes, then with a retired employee, Zak

According to the Labor Code of the Russian Federation, this is an agreement between the employee and the employer, according to which the employee undertakes to perform work in a certain specialty corresponding to his qualifications, and the employer, in turn, undertakes to pay the employee wages and provide him with working conditions, corresponding to the labor legislation of the Russian Federation.

In fact, labor contract it is nothing more than an agreement between the employer and the employee, according to which the parties have mutual rights and obligations, but in fact, the employment contract provides the employee social guarantees and is more beneficial to the employee than to the employer, in contrast to a civil contract.

It is worth noting that recently amending the employment contract has undergone some changes, thus, now the employment contract indicates:

Surname, name and patronymic of the employer who entered into the employment contract;

Employee and employer identity documents;

TIN (for employers);

Date and place of conclusion of the employment contract.

While earlier in the employment contract only:

Surname, name and patronymic of the employee;

Surname, name and patronymic of the employer who entered into the employment contract.

According to the employment contract, the employer is obliged to:

Provide the employee with work according to the specified labor function;

Provide working conditions provided for by the Labor Code of the Russian Federation, laws and other regulatory legal acts, collective agreements, agreements, local regulations containing norms labor law;

Pay wages to the employee on time and in full.

According to the employment contract, the employee is obliged to:

Personally comply with the terms of this agreement labor function;

Comply with the internal labor regulations in force in the organization.

Recall that these general obligations of the parties are enshrined in the very definition of an employment contract, given in Art. 56 of the Labor Code of the Russian Federation.

A detailed list of data that must be reflected in the employment contract is established in Art. 57 of the Labor Code of the Russian Federation. However, before moving on to the content of the employment contract, you should first consider its form.

Following the provisions of Art. 67 of the Labor Code of the Russian Federation, the employment contract is concluded in writing, is drawn up in duplicate, each of which is signed by both parties. One copy is given to the employee, and the second remains with the employer.

In addition, I would like to note that hiring by order is far from consistent with the conclusion of an employment contract, because in an order for hiring it is impossible to reflect all the conditions relating to the mutual rights and obligations of the employee and the employer.

An equally important advantage of an employment contract is that all the mutual rights and obligations of the employee and the employer are recorded in a single act, binding on both parties, thus, in the event of a labor dispute, the possibility of checking and comparing the terms of the contract with the relevant provisions of the law becomes obvious.

An employment contract that is not properly executed is considered concluded if the employee has started work with the knowledge or on behalf of the employer or his representative. With the actual admission of the employee to work, the employer is obliged to conclude an agreement with him in writing no later than three days from the date of admission to the performance of the labor function.

The employment contract comes into force from the date of its signing by the parties or from the date of the actual admission of the employee to the performance of labor duties.

Analyzing the content of the employment contract, it should be noted that the composition of the essential terms of this contract is not advisory, but mandatory.

The following are essential the necessary conditions an employment contract, without the approval of which the conclusion of such a contract is impossible. So, the employment contract specifies:

Surname, name, patronymic of the employee and the name of the employer (last name, first name, patronymic of the employer - an individual);

Place of work (indicating structural unit);

Start date of work;

The name of the position, specialty, profession with an indication of qualifications in accordance with staffing table organization or work function. Article 57 of the Labor Code of the Russian Federation specifically stipulates that distortion of the name of the profession (position) in order to exclude or reduce the cost of providing benefits or guarantees to employees will be regarded as a violation of labor legislation with all the ensuing consequences;

Employee's rights and obligations;

Employer's rights and obligations;

Characteristics of working conditions, compensation and benefits to employees for work in difficult, harmful and (or) dangerous conditions;

The mode of work and rest (if it is in relation to this employee differs from general rules established in the organization);

Terms of remuneration (including the size of the wage rate or official salary, additional payments, allowances and incentive payments);

Types and conditions of social insurance directly related to work.

The fact that the Labor Code of the Russian Federation provides a detailed list of essential conditions makes it possible to develop a standard form of an employment contract. The form of an employment contract is not unified and, therefore, can be developed in each organization based on the specifics of the activity.

In addition to essential (mandatory) conditions, the employment contract may provide conditions for testing, on nondisclosure of secrets protected by law (state, official, commercial and other), on the employee's obligation to work after training for at least the period established by the contract, if training was carried out at the expense of the employer, as well as other conditions that do not worsen the position of the employee in comparison with the requirements of documents containing labor law norms.

The terms of the employment contract can be changed only by agreement of the parties and in writing.

Labor contracts can be concluded:

For undefined period;
for a specified period not exceeding five years (fixed-term employment contract).

One of the most discussed problems in the adoption of the Labor Code of the Russian Federation was the problem of the possibility of concluding fixed-term contract... It is considered that the right to choose between the contract concluded for an indefinite period and the fixed-term employment contract, given to the employer, significantly worsens the situation of the employee. Article 57 of the Labor Code of the Russian Federation provides for a condition that makes such reasoning practically pointless: if a fixed-term employment contract is concluded, it indicates its validity period and the circumstance (reason) that served as the basis for concluding the fixed-term contract.

In comparison with the norms of the Labor Code of the Russian Federation, the Labor Code of the Russian Federation significantly limited the employer's ability to conclude fixed-term employment contracts with employees:

firstly, the term for which such an agreement can be concluded cannot exceed five years;
secondly, a fixed-term employment contract can be concluded only if labor Relations cannot be established for an indefinite period, taking into account the nature of the work ahead or the conditions for its implementation. In this case, an employment contract concluded for a specified period, in the absence of sufficient grounds for that established by an authorized body or court, is considered concluded for an indefinite period;
thirdly, if the term of its validity is not stipulated in the employment contract, then the contract is also considered concluded for an indefinite period;
fourthly, if none of the parties demanded termination of the fixed-term employment contract due to the expiration of its term, and the employee continues to work after the expiration of this period, then again the employment contract is considered concluded for an indefinite period. This means that if at the time of the expiry of the term of the employment contract the employer has not announced the employee about his dismissal, the contract ceases to be urgent;
fifth, Art. 58 of the Labor Code of the Russian Federation, it is expressly prohibited to conclude fixed-term employment contracts in order to evade the provision of rights and guarantees provided for employees with whom the contract is concluded for an indefinite period;
sixth, in art. 59 of the Labor Code of the Russian Federation, there are cases in which the conclusion of a fixed-term employment contract is possible.

And although this list is not exhaustive, nevertheless it contains a reference to the fact that such agreements can be concluded in other cases, but only provided federal laws... Thus, the legislator did not leave the solution to this issue at the mercy of the employer, which is a certain guarantee to the employee against the arbitrariness of managers who have the authority to hire.

By general rule an employment contract can be concluded with persons who have reached the age of sixteen. In some cases, an employment contract can be concluded by persons who have reached the age of fifteen and fourteen years. In addition, in organizations of cinematography, theaters, theater and concert organizations, circuses, it is allowed to conclude an employment contract with persons under the age of fourteen. Article 64 of the Labor Code of the Russian Federation provides for certain guarantees to the employee when concluding an employment contract. For example, unjustified refusal to conclude an employment contract is prohibited. Any limitation of rights and the establishment of advantages in hiring, depending on gender, race, skin color, nationality, language, origin, property, social and official position, place of residence, as well as other circumstances not related to business qualities employee. The only exceptions are cases directly provided for by federal law. In practice, the question often arises about the possibility of finding a job in Moscow for persons registered in the regions closest to Moscow. As can be seen from the analysis of the norms of the Labor Code of the Russian Federation, no restrictions on this matter have been established either in the Labor Code of the Russian Federation itself, or in other federal laws. By the way, at the request of the person who is refused to conclude an employment contract, the employer is obliged to inform the reason for the refusal in writing. Refusal to conclude an employment contract can be appealed against in judicial procedure... Currently arbitrage practice on this issue exists.

For the first time in the Labor Code of the Russian Federation, a list of documents required to be presented to the employer when applying for a job has been determined. According to Art. 65 of the Labor Code of the Russian Federation, such documents are:

Passport or other identity document;

Labor book, except for cases when an employment contract is concluded for the first time or an employee goes to work part-time;

Insurance certificate of state pension insurance;

The documents military registration- for those liable for military service and persons subject to conscription;

A document on education, qualifications or special knowledge - when applying for a job that requires special knowledge or special training.

In some cases, regulatory legal acts may provide for the need to present additional documents.

As already noted, hiring, in addition to concluding an employment contract, is formalized by an order (order) of the employer. The content of the order (instruction) must comply with the terms of the concluded employment contract.

The order (order) for employment is announced to the employee against receipt within three days from the date of signing the employment contract. At the request of the employee, the employer is obliged to issue him a duly certified copy of the said order (instruction).

When hiring, the employer is obliged to familiarize the employee with the internal labor regulations in force in the organization, other regulations related to the employee's labor function, and the collective agreement.

As an additional condition of the employment contract, the agreement of the parties may stipulate the testing of the employee in order to verify his compliance with the assigned work.

The test condition must be specified in the employment contract. The absence of a record of this means that the employee was hired without a test. In practice, there are situations when the employer, when hiring an employee, sets him a test condition, but nothing is said about this in the employment contract and in the order. Subsequently, when trying to dismiss an employee due to an unsatisfactory test result, the employer loses the case in court.

During the trial period, the employee is subject to the provisions of the Labor Code of the Russian Federation and other regulatory legal acts containing labor law norms.

However, there are also categories of workers for whom a probationary period is not established. It:

Persons applying for a job on a competition to fill the relevant position;

Pregnant women;

Persons under the age of eighteen;

Persons who graduated from educational institutions of primary, secondary and higher vocational education and for the first time applying to work in the received specialty;

Persons elected to an elective position for a paid job;

Persons invited to work by transfer from another employer as agreed between employers.

The test is not established in other cases provided for by the Labor Code of the Russian Federation, other federal laws and the collective agreement.

The trial period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies - six months. The period of probation does not include periods of temporary disability of the employee, as well as other periods when he was actually absent from work.

According to the test results, the employee either continues to work on a general basis, or quits his job. In the second case, the employer is obliged to notify the employee in writing about the dismissal not later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test. The employee can appeal against such a decision in court.

In the event of termination of the employment contract on the specified basis, the payment of severance pay to the employee is not made.

If during the period probationary period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract for on their own by notifying the employer about this in writing three days in advance.

Thus, in conclusion, it can be noted that labor relations between an employee and an employer arise on the basis of an employment contract, which in turn is an agreement of the parties on its main (essential) conditions. Labor contracts are concluded in writing in duplicate and are kept by each of the parties. Changes to the terms of the contract can only be made in writing. In case of non-fulfillment of the terms of the contract by one of the parties, the other party may appeal the violated right to the commission on labor disputes or in court.

Termination of an employment contract

Before going directly to comparative analysis norms of the Labor Code of the Russian Federation and the Labor Code of the Russian Federation, it is necessary to understand the basic concepts that are encountered when considering this issue.

The concept of "termination of an employment contract" is the most general one, which includes all the grounds for the termination of an employment contract provided for by the Labor Code of the Russian Federation and other federal laws.

Termination of an employment contract means its termination at the initiative of one of the parties - the employee or the employer. The term "dismissal", used in many articles of the Labor Code of the Russian Federation, is associated with the presence or absence of the will of the parties to the terminated employment contract.

Chapter 13 "Termination of an employment contract" of the Labor Code of the Russian Federation establishes the grounds and procedure for terminating an employment contract.

Article 77 of the Labor Code of the Russian Federation sets out the general grounds for terminating an employment contract. Already here there are differences from Article 29 of the Labor Code of the Russian Federation, which regulated a similar issue. The fact is that the Labor Code of the Russian Federation presented an exhaustive list of grounds for terminating an employment contract, and the Labor Code of the Russian Federation, in addition to general ones, provides for other grounds set forth in this Code and other federal laws. An example is the norms contained in article 288 of the Labor Code of the Russian Federation. They provide for the termination of an employment contract with persons working part-time in the case of hiring an employee for whom this work will be the main one. Article 336 of the Labor Code of the Russian Federation sets out additional grounds for terminating an employment contract with teaching staff.

Comparing article 77 of the Labor Code of the Russian Federation and article 29 of the Labor Code of the Russian Federation, the following differences can be distinguished:

1) four new grounds have been added: the employee's refusal to continue working in connection with a change in the owner of the organization's property, a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75). The norm of the Labor Code of the Russian Federation assumed that when the owner of the enterprise changes, as well as its reorganization (merger, acquisition, division, transformation), labor relations with the consent of the employee continue; termination in these cases of an employment agreement (contract) on the initiative of the administration was possible only with a reduction in the number or staff of employees; the employee's refusal to transfer to another job due to the state of health in accordance with the medical report (part two of article 72); circumstances beyond the control of the parties (Article 83); violation of the established rules for concluding an employment contract, if this violation excludes the possibility of continuing work (Article 84);

2) the conscription of an employee for military service or his assignment to alternative service is now among the circumstances beyond the control of the parties, and is governed by Art. 83 of the Labor Code of the Russian Federation;

3) the basis for termination of the employment contract at the request of the trade union body is excluded. The ego is driven by a general change in the role of trade union organizations in the organization's human resources management;

4) such a basis as the entry into force of a court verdict by which the employee was sentenced (except for cases of conditional conviction and suspension of execution of the sentence) to imprisonment, correctional labor outside the place of work, or other punishment excluding the possibility of continuing this work is excluded. In accordance with the Labor Code of the Russian Federation, this ground is a special case of termination of an employment contract due to circumstances beyond the control of the parties;

5) The Labor Code of the Russian Federation, in contrast to the Labor Code of the Russian Federation, separately considers the grounds for terminating an employment contract in cases of employee refusal to continue work in connection with a change in significant working conditions, as well as the employee's refusal to transfer due to the relocation of the employer to another locality (clauses 7 and 9 Article 77 of the Labor Code of the Russian Federation). The transfer of an employee to work in another locality, as a rule, implies a change in the essential terms of the employment contract. Clause 7 applies to other cases of transfer - in the same organization and in the same locality. You should pay special attention to clause 9 of Art. 77 of the Labor Code of the Russian Federation (the employee's refusal to transfer due to the relocation of the employer to another locality). The Labor Code of the Russian Federation does not clarify what is meant by the relocation of an employer to another locality. In particular, it has not been determined whether the change of the legal address of the organization (in another locality) should be considered such a movement, or whether the movement is understood as the need for an employee to actually move to another locality. By the way, a significant change in the terms of the employment contract can also take place when the employer moves within the boundaries of one settlement(for example, for such a metropolis as Moscow). Thus, it seems necessary to clarify the concepts of "other locality" and "relocation of the employer".

Articles 78-84 of the Labor Code of the Russian Federation regulate the termination of an employment contract on separate grounds.

An attempt has been made to detail the procedure for terminating a fixed-term employment contract (Article 79 of the Labor Code of the Russian Federation). Article 32 of the Labor Code of the Russian Federation regulated the termination of a fixed-term employment contract ahead of schedule at the request of the employee. This was possible in the event of illness or disability of the employee, i.e. the occurrence of circumstances that prevent the performance of work under an agreement (contract), violation by the administration of labor legislation, a collective or labor agreement (contract) and for other valid reasons.

Article 79 of the Labor Code of the Russian Federation establishes that, in the general case, a fixed-term employment contract is terminated upon the expiration of its validity period. Moreover, the employee must be warned in writing about the onset of the deadline at least three days before dismissal. If a fixed-term employment contract is concluded for the duration of the certain work, then it is terminated upon completion of this work. An employment contract concluded for the duration of the performance of the duties of an absent employee is terminated when this employee leaves for work. An employment contract concluded for the duration of seasonal work is terminated at the end of a certain season.

The procedure for terminating an employment contract on the initiative of the employee has been preserved. The main distinguishing feature of this order is still the need to warn the administration two weeks in advance. If the dismissal is due to the inability to continue performing the labor function from a certain period (admission to educational institution etc.), the employment contract must be terminated by this date. In addition, the employer is obliged to terminate the employment contract within the time period specified in the employee's application, in cases of established violation by the employer of laws and other regulatory legal acts containing labor law, the terms of a collective agreement, agreement or employment contract. If the employer does not object, the employment contract may be terminated even before the expiration of two weeks from the day the employee submits the application for dismissal. In this case, the reason for dismissal may be re-qualified to terminate the contract by agreement of the parties. The employee has the right to withdraw the letter of resignation, and the contract will not be considered terminated, but only if workplace no other employee invited. After two weeks, the employee has the right to terminate the performance of the labor function. At the same time, the employer does not have the right to terminate the contract for gross violation by the employee of the labor regulations (absenteeism).

Significant changes have been made by the legislator to the list of grounds under which an employment contract can be terminated at the initiative of the employer. Compared with the norms of the Labor Code of the Russian Federation, it is supplemented with five points:

change of the owner of the organization's property (in relation to the head of the organization, his deputies and the chief accountant);
the adoption of an unreasonable decision by the head of the organization (branch, representative office), his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;
submission by the employee to the employer of forged documents or deliberately false information when concluding an employment contract;
termination of admission to state secrets, if the work performed requires such admission;
cases provided for by an employment contract with the head of the organization, members of the collegial executive body organizations.

Excluded the basis according to which the employee could be dismissed in case of failure to appear for work for more than four months in a row due to temporary incapacity for work, excluding maternity leave. Now dismissal is possible for health reasons and only with a medical certificate. Moreover, the dismissal in this case is made if it is impossible to transfer the employee with his consent to another job. Looking ahead, I would like to note that in Art. 83 of the Labor Code of the Russian Federation contains an almost similar norm with the only difference that it deals with the unconditional termination of labor relations in connection with the recognition of the employee as completely incapacitated in accordance with the medical report.

The reason is excluded when an employee could be dismissed in case of reinstatement of an employee who had previously performed this work. This issue is governed by Art. 79 of the Labor Code of the Russian Federation (termination of a fixed-term employment contract). It has been clarified that termination of an employment contract at the initiative of the employer can take place not only in the event of liquidation of the organization, but also in the event of termination of activities by the employer - an individual. The concept of a one-time gross violation of labor duties by an employee is disclosed in more detail. It now includes:

absenteeism (absence from the workplace without good reason more than four consecutive hours during the working day). According to the Labor Code of the Russian Federation, absenteeism was equated with being absent from work for more than three hours in a row;
appearance at work in a state of alcoholic, drug or other toxic intoxication. In Art. 33 of the Labor Code of the Russian Federation, this basis for terminating an employment contract was indicated as a separate one. In the Labor Code of the Russian Federation, only two words "or otherwise" have been added, as a result of which the text of this paragraph has become not entirely accurate: it turns out that both alcoholic and narcotic intoxication are varieties of toxic intoxication;
disclosure of secrets protected by law (state, commercial, official and other), which became known to the employee in connection with the performance of his labor duties. This view gross violation is new - the Labor Code of the Russian Federation did not provide for the possibility of dismissal on this basis;
committing at the place of work theft (including minor) of someone else's property, embezzlement, deliberate destruction or damage, established by a court verdict that has entered into legal force or by a resolution of a body authorized to apply administrative penalties. This ground for termination of an employment contract is not fundamentally new - in Art. 33 of the Labor Code of the Russian Federation, it was distinguished as a separate one. The changes affected only the terminology: in the Labor Code of the Russian Federation, it was not about someone else's, but about state or public property;
violation by the employee of labor protection requirements, if this violation entailed grave consequences (industrial accident, accident, catastrophe) or deliberately created a real threat of such consequences. There was no such basis in the Labor Code of the Russian Federation. Although, in fact, dismissals on this basis took place, as a rule, with the admission of this violation, the employee was brought to criminal responsibility and dismissed from work by a court decision.

From Art. 254 of the Labor Code of the Russian Federation in Art. 81 of the Labor Code of the Russian Federation, three grounds for terminating an employment contract have been transferred, which can be applied to only certain categories of employees. It:

the commission of guilty acts by an employee directly serving money or commodity values if these actions give rise to the loss of confidence in him on the part of the employer;

the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;

one-time gross violation the head of the organization (branch, representative office), his deputies of their job duties. The list of grounds when an employment contract can be terminated at the initiative of the employer in the Labor Code of the Russian Federation (unlike the Labor Code of the Russian Federation) is not exhaustive - in accordance with paragraph 14 of Art. 81 labor contracts can be terminated in other cases provided for by law (examples of such cases have already been given earlier).

The requirement according to which the dismissal of an employee due to the liquidation of the organization, reduction of the number or staff of employees is allowed if it is impossible to transfer the employee with his consent to another job, has been retained. In addition, the prohibition on the dismissal of an employee on vacation or during a period of temporary disability has been retained.

It was clarified that the procedure for terminating employment contracts provided for cases of liquidation of an organization applies to cases of termination of the activities of a branch, representative office or other separate structural unit of an organization located in another locality.

Article 82 of the Labor Code of the Russian Federation establishes the procedure for the participation of trade union bodies in the consideration of issues related to the dismissal of employees at the initiative of the employer. As already noted, the role of trade unions in managing the organization's personnel in the Labor Code of the Russian Federation has been significantly revised in comparison with the Labor Code of the Russian Federation. This circumstance was reflected in Art. 82 of the Labor Code of the Russian Federation.

In particular, it was established that in the event of liquidation or reduction of the number (staff) of employees, the employer is only obliged to inform the trade union body about the planned measures: in general, no later than two months, if the measures lead to mass layoffs, no later than than three months.

The criteria for mass layoffs should be defined in sectoral and / or territorial agreements.

At the same time, the Labor Code of the Russian Federation does not determine the further actions of the employer, the trade union organization, as well as the procedure for implementing the decision adopted by the trade union body during the liquidation of the organization.

The employer is obliged to take into account the opinion of the trade union body if a union member is dismissed on the following grounds: reduction in the number or staff of the organization's employees in case of insufficient qualifications, confirmed by the results of attestation, as well as in the case of repeated non-performance of labor duties by the employee without good reason, if he has a disciplinary penalty. The procedure for taking into account the opinion of the trade union body is regulated by Art. 373 of the Labor Code of the Russian Federation. In particular, taking into account the opinion of the trade union presupposes (in case of disagreement of the trade union with the dismissal) consultations with the employer with the obligatory execution of the corresponding protocol. Regardless of the results of the consultations, the employer has the right to dismiss the employee within ten days after sending the draft dismissal order and copies to the trade union required documents(for the development of an opinion by the union). The decision to dismiss can be appealed to the federal labor inspectorate and, of course, in court. It should be emphasized that the decision of the trade union must be motivated. An unmotivated opinion is not taken into account by the employer. The criteria for motivating the Labor Code of the Russian Federation have not been determined.

Note that the additional right to trade union organizations is still granted by Art. 82 of the Labor Code of the Russian Federation is the right to send its representatives to attestation commission(when carrying out certification, which may serve as a basis for dismissing employees).

Most of the provisions of Art. 83 of the Labor Code of the Russian Federation, which regulates the termination of an employment contract due to circumstances beyond the control of the parties, is not new - to one degree or another, the relevant grounds were provided for by several articles of the Labor Code of the Russian Federation.

These circumstances are:

conscription of an employee for military service or his direction to replace it with an alternative civil service(previously a separate basis provided for by Article 29 of the Labor Code of the Russian Federation);
reinstatement of an employee who previously performed this work, by decision state inspection labor or court;
non-election to office;
conviction of the employee to a punishment that excludes the continuation of the previous work, in accordance with the court verdict, which entered into legal force;
recognition of an employee as completely incapacitated in accordance with a medical report;
death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as deceased or missing;
the onset of extraordinary circumstances that prevent the continuation of labor relations. In order for a circumstance to be recognized as extraordinary, it is necessary to have a decision of a public authority.

The norms of Art. 84 of the Labor Code of the Russian Federation, which regulates the procedure for terminating an employment contract due to violation of mandatory rules established by law when concluding an employment contract.

Only three possible violations of the rules are indicated:

conclusion of an employment contract in violation of a court verdict on deprivation of a specific person of the right to occupy certain positions or engage in certain activities;
conclusion of an employment contract for the performance of work contraindicated for this person for health reasons in accordance with the medical opinion;
lack of an appropriate education certificate, if the performance of work requires special knowledge in accordance with federal law or other regulatory legal acts;
in other cases provided for by federal law.

It is easy to see that in all three cases the conclusion of an employment contract is hardly possible without a certain insincerity on the part of the employee. It is difficult to assume that the employee does not know the verdict of the court and that he is in good faith mistaken about his physical condition or does not know that special education is required for the job for which he is applying. Nevertheless, Art. 83 of the Labor Code of the Russian Federation specifically stipulates that the termination of the employment contract in the above cases is made if it is impossible to transfer the employee with his written consent to another job available to the employer. In addition, the last part of Art. 83 of the Labor Code of the Russian Federation establishes the employer's obligation to pay the employee severance pay in the amount of the average monthly earnings, if the violation of the rules for concluding an employment contract was not committed through the fault of the employee.

And the last thing I would like to note when analyzing the norms of the Labor Code of the Russian Federation and the Labor Code of the Russian Federation. Article 135 of the Labor Code of the Russian Federation provided for the quality disciplinary action dismissal for very specific reasons. But Art. 192 of the Labor Code of the Russian Federation defines "dismissal on appropriate grounds" as a type of disciplinary sanction. It seems necessary to specifically state these grounds using a reference rule in order to avoid ambiguous application of the mentioned type of disciplinary sanction.

Material liability of the parties to the employment contract:

1. The concept of liability

Material liability under labor law can be defined as the obligation of one party employment relationship(employee or employer) to compensate for the damage caused by her to the other party by non-performance or improper performance by the party of her labor duties.

Failure to fulfill or improper fulfillment by the party to the employment contract of the duties assigned to it, if this entailed damage, is the basis for material liability. The party to the employment contract (employee, employer) that caused damage to the other party shall compensate for the damage in accordance with the norms of the Labor Code of the Russian Federation and other federal laws (Article 232 of the Labor Code of the Russian Federation).

2. Under what conditions does material liability parties to the employment contract?

Material liability as a type of legal liability arises only if there are a number of mandatory conditions of legal liability. First of all, it is the presence material damage... Other mandatory conditions for the occurrence of material liability of a party to an employment contract are:

a) the unlawfulness of the action (inaction) that caused the damage;

b) a causal relationship between the wrongful act and material damage;

c) guilt in committing an unlawful act (inaction) (Article 233 of the Labor Code of the Russian Federation).

The exception is the material liability of the employer for the delay in the payment of wages (Article 236 of the Labor Code of the Russian Federation).

3. What should be understood as damage caused by a party to an employment contract?

Labor legislation does not provide a general definition of the concept of damage. Article 232 of the Labor Code of the Russian Federation, speaking about the material liability of the parties to an employment contract, applies to them (the employee and the employer) a single term "compensation for damage".

However, when it comes to specific rules for compensation for damage by the parties to an employment contract, the content of this concept in relation to the employee and the employer is not equivalent. As applied to the employer, it does not coincide with the concept of damage provided for by the Civil Code of the Russian Federation. In accordance with the Labor Code of the Russian Federation, the employer compensates the employee for both real damage and lost profits (Articles 234, 235 of the Labor Code of the Russian Federation), i.e. losses; the employee reimburses the employer only real (direct actual damage) (Article 238 of the Labor Code of the Russian Federation).

4. What is meant by direct actual damage?

The concept of direct actual damage is provided for in Art. 238 of the Labor Code of the Russian Federation. Direct actual damage means a real decrease in the employer's cash assets or deterioration of the specified property (including property of third parties held by the employer, if the employer is responsible for its safety). And also the need for the employer to make costs or unnecessary payments for the acquisition or restoration of property.

Direct actual damage can include, for example, a shortage of monetary or property values, damage to materials and equipment, the cost of repairing damaged property, payments for the time of forced absence or idle time, the amount of the fine paid.

The obligation to compensate for direct actual damage arises for the employee both in cases where such damage is caused directly to the employer (for example, due to a shortage of values entrusted to him), and in cases where damage through the fault of the employee is caused to other persons, and the employer, in accordance with the applicable law is obliged to compensate for this damage. For example, if, as a result of illegal actions of an employee in the performance of his job duties, he caused damage to the property of another organization.

Lost income (lost profits) cannot be recovered from the employee.

5. What are the similarities and differences between the material responsibility of an employee under labor law and the property responsibility of citizens under the norms of civil law?

The material liability of an employee under labor law has some similarities with the property liability of citizens under the norms of civil law. Both liability is based on the obligation to compensate for the damage caused. However, there are significant differences between the material liability of an employee under labor law and property liability under civil law.

Unlike civil legislation, according to which the parties to property relations, as a general rule, are equal and any of them has the right to demand full compensation for the losses caused to it, the subjects of the labor relationship are in an unequal position in relation to each other.

In accordance with labor legislation, the employee, as a general rule, bears limited financial liability and compensates only for direct actual damage, while the employer is obliged to compensate the employee for the losses caused to him through his fault in full.
The norms of labor law governing the grounds, limits and procedure for compensation for material damage are imperative. They are established by law and cannot be changed by agreement of the parties.

So, protecting the interests economically more weak side- an employee, the Labor Code of the Russian Federation determines that by agreement of the parties, the material liability of the employer cannot be defined below, and the employee's liability to the employer is higher than that provided for by the Labor Code of the Russian Federation (part 1 of article 235, article 241) or other federal laws. Only within the specified limits, the parties have the right to establish a specific amount of material liability. According to the norms of civil law, the parties themselves have the right to determine the grounds, limits and conditions of property liability.

6. In what cases does the employer's financial liability to the employee arise?

The employer's liability to the employee arises in the event of non-fulfillment or improper fulfillment of the duties assigned to him, if this entailed the infliction of property damage on the employee.

The Labor Code of the Russian Federation distinguishes three groups of offenses on the part of the employer, which entail his obligation to compensate employees for the damage caused to them as a result of these offenses. These include:

Illegal deprivation of an employee of the opportunity to work (Article 234 of the Labor Code of the Russian Federation);

Causing damage to the property of an employee (Article 235 of the Labor Code of the Russian Federation);

Delay in the payment of wages to the employee, vacation pay, dismissal payments and other payments due to the employee (Article 236 of the Labor Code of the Russian Federation).

7. In what cases does an employee who is deprived of the opportunity to work have the right to demand compensation for the damage caused to him?

Unlawfully depriving an employee of the opportunity to work is the most serious offense. This is not only a failure to fulfill the obligation to provide work, enshrined in the Labor Code, stipulated by the employment contract, but also a violation of the constitutional right of an employee to freely dispose of his ability to work, to choose a type of activity and profession. In this regard, the legislator obliges the employer to compensate the employee for the earnings not received by him in all cases of illegal deprivation of his opportunity to work.

Such an obligation arises if the earnings are not received as a result of:

Illegal suspension of an employee from work, his dismissal or transfer to another job;

The employer's refusal to comply or untimely execution of the decision of the review body labor disputes or a state legal labor inspector on the reinstatement of an employee at his previous job;

Delays by the employer in issuing a work book to an employee, entering an incorrect or inappropriate formulation of the reason for the employee's dismissal in the work book;

In other cases stipulated by federal laws and collective agreements.

The damage incurred in connection with the illegal deprivation of the employee of the opportunity to work is expressed in the loss of earnings, which the employee lost in whole or in part during illegal dismissal or translation, delay in issuing a work book.

8. In what cases is an employee released from liability?

In accordance with Art. 239 of the Labor Code of the Russian Federation, an employee is released from material liability in cases where damage was caused due to force majeure, normal economic risk, extreme necessity or necessary defense, or the employer's failure to fulfill the obligation to ensure proper conditions for the storage of property entrusted to the employee.

The Labor Code of the Russian Federation also provides for the right of the employer to completely or partially refuse to recover damages from the guilty employee, taking into account the specific circumstances in which the damage was caused (Article 240).

9. What types of material liability of the employee to the employer are provided for by the Labor Code of the Russian Federation?

The Labor Code of the Russian Federation provides for two types of employee liability for damage caused to the employer: limited and full liability.

Limited liability is the main type of employee liability for damage caused to the employer. It consists in the employee's obligation to compensate the direct actual damage caused to the employer, but not exceeding the maximum limit established by law, determined in relation to the amount of wages he receives. In accordance with Art. 241 of the Labor Code of the Russian Federation, such a maximum limit is the average monthly earnings of an employee.

The application of limited material liability within the limits of the average monthly earnings means that if the amount of damage exceeds average monthly earnings employee, he is obliged to reimburse only that part of him, which is equal to his average monthly earnings. In other words, the employee is obliged to fully compensate the direct actual damage caused to the employer only in cases where this damage does not exceed his average monthly earnings.

The rule on limiting material liability to the limits of average monthly earnings applies in all cases, except for those in respect of which the Labor Code of the Russian Federation or other federal law directly establishes a higher material liability, for example, full material liability (Article 242 of the Labor Code of the Russian Federation).

Full financial responsibility consists in the employee's obligation to compensate the direct actual damage caused to the employer in full.

Anton Garanin

Information Agency "Financial Lawyer"

The minimum salary is set by the Federal Law ON THE MINIMUM SIZE OF Wages
Article 1. Establish minimum size wages:
from July 1, 2000 in the amount of 132 rubles per month;
from January 1, 2001 in the amount of 200 rubles per month;
from July 1, 2001 in the amount of 300 rubles per month;
from May 1, 2002 in the amount of 450 rubles per month;
(the paragraph was introduced by the Federal Law of 29.04.2002 N 42-FZ; as amended by the Federal Law of 01.10.2003 N 127-FZ)
from October 1, 2003 in the amount of 600 rubles per month.
(the paragraph was introduced by the Federal Law of 01.10.2003 N 127-FZ)
The name of the position, specialty, profession, indicating the qualifications of the employee, in accordance with which he will perform the labor function, stipulated by the agreement of the parties.
The profession is understood as the type labor activity, determined by the purpose and nature of labor functions (for example, doctor, metallurgist, builder). On the concept of specialty, qualifications and position, see paragraph 4 of the comment. to Art. 56 TC. The term "labor function" has been introduced into the definition of the concept of an employment contract. Under the labor function in accordance with Art. 15 TC is understood as work in a certain specialty, qualification or position.
A specialty is a type of occupation within the framework of one profession, a narrower classification of the type of labor activity, requiring specific knowledge, skills, and abilities acquired as a result of education and ensuring the formulation and solution of professional tasks (for example, a personnel manager, a doctor - surgeon, a locksmith - toolmaker ).
The qualification of an employee is the type of his professional training, the availability of knowledge, skills and abilities necessary for him to perform a certain job. The indicator that determines the degree of qualification of an employee is the category. Qualifying rank is set taking into account the complexity, responsibility and working conditions on the basis of the tariff and qualification reference book.
Position is an established set of duties and the corresponding rights that determine the place and role of an employee in a particular organization, as well as his responsibility for their implementation.
The employee undertakes to personally perform the work function stipulated by the agreement. He does not have the right to entrust it to another employee or hire another person to perform the duties assumed under the employment contract.
The name of the position, profession and specialty is indicated in the employment contract in accordance with the staffing table of the organization.
The staffing table is an organizational and administrative document, which fixes the official and number of the organization, and also indicates the payroll. The staffing table is drawn up in the prescribed form (T-3) and contains a list of positions, information on the number staff units, official salaries, allowances and monthly wages (see Resolution of the State Statistics Committee of Russia dated 06.04.2001 N 26 "On approval unified forms documentation on labor accounting and payment "). The staffing table is signed by the chief accountant of the organization and endorsed by the heads of structural divisions. It is approved by the order of the head of the organization. The staffing table is a long-term document. However, if necessary, changes, additions or other adjustments can be made to it.
In cases where the work function entrusted to the employee does not fit into the framework of one position, profession or specialty, the employment contract specifies the specific types of work that he undertakes to perform. If an employee is accepted into an organization for a position in a specialty or profession, work in which, in accordance with federal law, gives the right to certain benefits or provides for certain restrictions, then the name of the corresponding position, specialty or profession of the employee is indicated in the employment contract in accordance with the qualification reference books , which are approved in the manner prescribed by the Government of the Russian Federation. Currently, the following can be used: Qualification reference book of positions of managers, specialists and other employees, approved. Resolution of the Ministry of Labor of Russia dated 21.08.98 N 37, and the Unified Tariff and Qualification Reference Book of Work and Occupations of Workers (ETKS), approved. Decree of the State Committee for Labor of the USSR and the All-Union Central Council of Trade Unions of 31.01.85;
the rights and obligations of this employee, supplementing, clarifying or specifying - in relation to the job function performed by him - the rights and obligations of employees provided for by laws and other regulatory legal acts.
Good luck!

Should an employment contract be concluded with an employee who was hired at a time when employment contracts have not yet been introduced? If yes, then a fixed-term or open-ended employment contract is concluded with a retired employee.

Answer:

The obligation to conclude an employment contract in writing was introduced by the Law of the Russian Federation of September 25, 1992 N 3543-I "On Amendments and Additions to the Code of Labor Laws of the RSFSR" (clause 15 of Art. 1), which enshrined such a requirement in Art. 18 of the Labor Code of the RSFSR. Then the requirement for the mandatory conclusion of an employment contract in writing was established in the Labor Code of the Russian Federation. Labor relations of persons hired before the entry into force of the RF Law of 25.09.1992 N 3543-I (06.10.1992), with the consent of such persons, could be formalized in writing. This was indicated by the Ministry of Labor of the Russian Federation in the Recommendations for the conclusion of an employment agreement (contract) in writing, approved by the Resolution of the Ministry of Labor of the Russian Federation of July 14, 1993 N 135 (by order of the Ministry of Health and social development RF of November 24, 2008 N 665, this decree has been declared invalid since December 1, 2008). Thus, the employer did not have to issue in writing employment contracts with employees hired before October 6, 1992.

Employees hired on 6 October 1992 were required to have written employment contracts. However, before the entry into force of the Labor Code of the Russian Federation, if the employment contract was not drawn up in writing, but the employee was actually admitted to work, the employment contract was in any case considered concluded (part three of Article 18 of the Labor Code of the RSFSR). This formulation allowed employers not to enter into written employment contracts with employees actually admitted to work. After the entry into force of the Labor Code of the Russian Federation (from February 1, 2002), the employer is obliged to conclude employment contracts with employees in writing. The provisions of Art. 67 of the Labor Code of the Russian Federation enshrines the obligation of the employer, upon the actual admission of the employee to work, to draw up an employment contract with him in writing no later than three working days from the date of the actual admission of the employee to work.

At the same time, the Labor Code of the Russian Federation does not contain provisions obliging to conclude in writing labor contracts with employees hired before its entry into force. Furthermore, in accordance with Art. 424 of the Labor Code of the Russian Federation, the provisions of the norms of the Labor Code of the Russian Federation apply to legal relations arising after its entry into force. The same rule establishes that if legal relations arose before the entry into force of the Labor Code of the Russian Federation, then it applies only to those rights and obligations that arise after its entry into force. In other words, the provisions of the Labor Code of the Russian Federation have no retroactive effect.

Thus, with employees who were hired during the period of the Labor Code of the Russian Federation, the execution of an employment contract in writing is not mandatory and is possible only with their written consent. With the same employees who were hired after February 1, 2002, the employer is obliged to conclude employment contracts in writing.

Labor legislation does not establish a special procedure for concluding employment contracts in a situation where an employee hired before February 1, 2002 expressed written consent to conclude an employment contract in writing. Also Labor Code The RF does not contain any special requirements regarding the procedure for concluding an employment contract in the case when the employer, within three working days from the date of actual admission to work of an employee who was hired after February 1, 2002, did not enter into a written employment contract with him. In our opinion, in both situations, when concluding an employment contract, the employer should be guided by the general norms of chapters 10-11 of the Labor Code of the Russian Federation. So, the employment contract must contain all the conditions that are binding on the inclusion in the employment contract, established by Art. 57 of the Labor Code of the Russian Federation. According to the first part of Art. 57 of the Labor Code of the Russian Federation, the employment contract indicates, in particular, the place and date of the conclusion of the employment contract. In addition, in accordance with part two of Art. 57 of the Labor Code of the Russian Federation, as one of the prerequisites in the employment contract, it is necessary to indicate the date of commencement of work. In this case, the date of the conclusion of the employment contract must correspond to the actual date of its conclusion, and the date of commencement of work must correspond to the actual date of commencement of work in accordance with the order of employment.

According to paragraph 2 of the second part of Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract may be concluded with old-age pensioners entering work by agreement of the parties. It follows from this provision that, by agreement of the parties, a fixed-term employment contract can be concluded with an employee only if he is a pensioner at the time of hiring. In the situation under consideration, the employee became a pensioner while working for this employer: after all, despite the fact that an employment contract with him (possibly) will be drawn up in writing only now, he was hired much earlier. Thus, the current labor legislation of the Russian Federation (in contrast to the earlier (before 01.10.2006) version of paragraph 14 of article 59 of the Labor Code of the Russian Federation) does not give the employer the right to change the labor contract concluded with the employee for an indefinite period (although not drawn up in writing ), on a fixed-term employment contract in connection with the achievement of this employee retirement age and the appointment of him a pension.

Labor contract - an agreement between the employer and the employee, in accordance with which the employer undertakes to provide the employee with work for a specified labor function, to ensure the working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations and with this agreement, timely and in full pay the employee wages, and the employee undertakes to personally perform the job function defined by this agreement, to comply with the internal labor regulations in force for this employer.

(Part one as amended by Federal Law of 30.06.2006 N 90-FZ)

The parties to the employment contract are the employer and the employee.

Article 57. Content of an employment contract

The employment contract specifies:

the surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual) who entered into an employment contract;

information about the identity documents of the employee and employer - an individual;

taxpayer identification number (for employers, excluding employers - individuals who are not individual entrepreneurs);

information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate powers;

place and date of the conclusion of the employment contract.

The following conditions are mandatory for inclusion in an employment contract:

place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another locality, the place of work with an indication of the separate structural unit and its location;

labor function (work according to the position in accordance with the staffing table, profession, specialty with an indication of qualifications; the specific type of work entrusted to the employee). If, in accordance with this Code, other federal laws, the provision of compensation and benefits or the existence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the name of these positions, professions or specialties and qualification requirements to them must comply with the names and requirements specified in qualification reference books approved in the manner prescribed by the Government Russian Federation;

the date of commencement of work, and in the case when a fixed-term employment contract is concluded, also the period of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with this Code or other federal law;

terms of remuneration (including the size of the wage rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);

working hours and rest hours (if for this employee it differs from the general rules in force for this employer);

compensation for hard work and work with harmful and (or) dangerous conditions labor, if the employee is hired in appropriate conditions, indicating the characteristics of the working conditions at the workplace;

conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work);

a condition on compulsory social insurance of an employee in accordance with this Code and other federal laws;

other conditions in cases stipulated by labor legislation and other regulatory legal acts containing labor law norms.

If, when concluding an employment contract, it did not include any information and (or) conditions from among those provided for in parts one and two of this article, then this is not a basis for recognizing an employment contract as not concluded or terminating it. The employment contract must be supplemented with missing information and (or) conditions. In this case, the missing information is entered directly into the text of the employment contract, and the missing conditions are determined by the appendix to the employment contract or by a separate agreement of the parties concluded in writing, which are an integral part of the employment contract.

The employment contract may provide for additional conditions that do not worsen the position of the employee in comparison with the established labor legislation and other regulatory legal acts containing labor law norms, collective bargaining agreements, agreements, local regulations, in particular:

on clarification of the place of work (indicating the structural unit and its location) and (or) on the workplace;

about the test;

on non-disclosure of secrets protected by law (state, official, commercial and other);

on the employee's obligation to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer;

on the types and conditions of additional insurance for the employee;

on improving the social and living conditions of the employee and his family members;

to clarify, in relation to the working conditions of this employee, the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms.

By agreement of the parties, the labor contract may also include the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms, local regulations, as well as the rights and obligations of the employee and the employer arising from the terms of the collective agreement, agreements ... Failure to include in the employment contract any of the specified rights and (or) obligations of the employee and the employer cannot be considered as a refusal to exercise these rights or fulfill these obligations.

Article 58. Duration of an employment contract

Labor contracts can be concluded:

1) for an indefinite period;

2) for a certain period of not more than five years (fixed-term employment contract), unless another period is established by this Code and other federal laws.

A fixed-term employment contract is concluded when an employment relationship cannot be established for an indefinite period, taking into account the nature of the work ahead or the conditions for its performance, namely, in the cases provided for in the first part of Article 59 of this Code. In the cases provided for in part two of Article 59 of this Code, a fixed-term employment contract may 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 performance.

(Part two as amended by Federal Law of 30.06.2006 N 90-FZ)

If the term of its validity is not stipulated in the employment contract, then the contract is considered concluded for an indefinite period.

In the event that none of the parties demanded termination of a fixed-term employment contract due to the expiration of its validity period and the employee continues to work after the expiration of the employment contract, the condition of the urgent nature of the employment contract becomes invalid and the employment contract is considered concluded for an indefinite period.

An employment contract concluded for a specific period in the absence of sufficient grounds established by the court is considered concluded for an indefinite period.

(as amended by Federal Law of 30.06.2006 N 90-FZ)

It is prohibited to conclude fixed-term employment contracts in order to evade the provision of rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.

(as amended by Federal Law of 30.06.2006 N 90-FZ)

Article 59. Fixed-term employment contract

(as amended by Federal Law of 30.06.2006 N 90-FZ)

A fixed-term employment contract is concluded:

for the duration of the duties of the 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) work;

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

with persons sent to work abroad;

to carry out work that goes beyond the usual 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 applying for work in organizations created on the basis of certain period or to perform a known job;

with persons accepted for the performance of a known job in cases where its completion cannot be determined by a specific date;

to perform work directly related to the internship and with vocational training employee;

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

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

with retirees entering work by age, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner prescribed 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 the regions of the Far North and equivalent areas, 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 emergencies;

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

with creative media workers mass media, organizations of cinematography, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibiting) of works, 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;

(as amended by Federal Law of 28.02.2008 N 13-FZ)

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

with persons studying on a full-time basis;

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

(the paragraph was introduced by the Federal Law of 07.11.2011 N 305-FZ)

with persons applying for a part-time job;

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

Article 60. Prohibition to demand the performance of work not stipulated by the employment contract

It is prohibited to demand from an employee to perform work that is not stipulated by an employment contract, with the exception of cases provided for by this Code and other federal laws.

Article 60.1. Part-time work

An employee has the right to conclude labor contracts for performing other regular paid work during his free time from the main job with the same employer (internal part-time job) and (or) with another employer (external part-time job).

The specifics of the regulation of the labor of persons working part-time are determined by Chapter 44 of this Code.

Article 60.2. Combining professions (positions). Expansion of service areas, increase in the volume of work. Fulfillment of the duties of a temporarily absent employee without release from work specified in an employment contract

(introduced by the Federal Law of 30.06.2006 N 90-FZ)

With the written consent of the employee, he may be entrusted with performing, within the established duration of the working day (shift), along with the work specified in the employment contract, additional work in another or the same profession (position) for additional payment(Article 151 of this Code).

Additional work entrusted to an employee in another profession (position) can be carried out by combining professions (positions). Additional work entrusted to an employee in the same profession (position) can be carried out by expanding service areas, increasing the volume of work. To fulfill the duties of a temporarily absent employee without release from work specified in the employment contract, the employee may be entrusted with additional work both in another and in the same profession (position).

The period during which the employee will perform additional work, its content and volume are established by the employer with the written consent of the employee.

The employee has the right to early refuse to perform additional work, and the employer - to early cancel the order to perform it, notifying the other party in writing not later than three working days.

Article 61. Entry into force of an employment contract

An employment contract enters into force from the day it is signed by the employee and the employer, unless otherwise established by federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.

(as amended by Federal Law of 30.06.2006 N 90-FZ)

The employee is obliged to start performing work duties from the day specified in the employment contract.

If the day of starting work is not specified in the employment contract, then the employee must start work on the next business day after the entry into force of the contract.

(as amended by Federal Law of 30.06.2006 N 90-FZ)

If the employee did not start work on the day of commencement of work, established in accordance with paragraphs two or three of this article, the employer has the right to cancel the employment contract. A canceled employment contract is deemed not concluded. Cancellation of an employment contract does not deprive the employee of the right to receive compulsory social insurance coverage upon occurrence insured event in the period from the date of the conclusion of the employment contract until the day of its cancellation.

(Part four as amended by Federal Law of 30.06.2006 N 90-FZ)

Article 62. Issuance of copies of documents related to work

(as amended by Federal Law of 30.06.2006 N 90-FZ)

Upon the written application of the employee, the employer is obliged, no later than three working days from the date of submission of this application, to give the employee copies of documents related to work (copies of the order for employment, orders for transfers to another job, order for dismissal from work; extracts from the work record book; information about wages, on the accrued and actually paid insurance contributions for compulsory pension insurance, on the period of work for this employer, and more). Copies of documents related to work must be properly certified and provided to the employee free of charge.

Before answering this question, you need to find out when the employment contract comes into force. According to Art. 61 of the Labor Code, an employment contract enters into force from the day it is signed by the employee and the employer, unless otherwise established by federal laws, other regulatory legal acts of the Russian Federation or an employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.

A date other than the date of signing by the parties of the employment contract is applied, for example, when concluding an employment contract with the head of the federal state unitary enterprise... The Model Employment Agreement with such a manager, approved by the Order of the Ministry of Economic Development of Russia, states that an employment agreement signed by both parties shall enter into force from the date of agreement with federal body on federal property management.

If by the time of actual admission to work the employment contract has not been properly executed, it is nevertheless considered concluded. However, this rule only applies if the employee has started work with the knowledge or on behalf of the employer or his representative. It should be borne in mind that the representative of the employer in this case, as emphasized by the Plenum of the RF Armed Forces in Resolution No. 2 of March 17, 2004, is a person who, in accordance with the law, other regulatory legal acts, constituent documents legal entity(organization) either by local regulations or by virtue of an employment contract concluded with this person is empowered to hire employees. It is in this case that, with the actual admission of the employee to work with the knowledge or on behalf of such a person, labor relations arise (Article 16 of the Labor Code) and the employer may be obliged to draw up a proper employment contract with this employee. As a general rule, an employee who has entered into an employment contract is obliged to start work on the next working day after the entry into force of the contract. However, the beginning of work may be determined differently, and in this case, the employee is obliged to start performing work duties from the day specified in the employment contract. Part 4 of Art. 61 of the Labor Code provides for the consequences of not showing up for work in set time... If the employee does not start work on the set start day, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded, and the employer does not bear any obligations in relation to the employee who did not start work on time. There is only one exception. Cancellation of an employment contract does not deprive the employee of the right to receive security for compulsory social insurance in the event of an insured event in the period from the date of the conclusion of the employment contract until the day of its cancellation.

Yu.P. Orlovsky, A.F. Nurtdinova, L.A. Chikanova

From the book: 500 Topical Questions on the Labor Code