Insurance premiums for a fixed-term employment contract. Fixed-term employment contract. Taxation. Grounds for dismissal

It is beneficial for the employer to conclude contracts with new employees for a specific period instead of permanent contracts. This is due to the fact that knowing when the work of specific staff units, it is easier for the manager to plan the structure of positions and the salary fund.

In organizations that provide special conditions for permanent employees, and for temporary ones - ensuring only the rights guaranteed by law, fixed-term contract allows you to avoid additional spending on bonuses and other additional payments.

In addition, the employer can be sure that he will not have any special problems with the termination of cooperation with such employees, because they also make plans taking into account the upcoming dismissal and, being notified three days before the expiration of the contract, are already ready to leave the company.

However, legislators, when drafting Labor Code took into account the likely tendency of employers to abuse fixed-term employment contracts and provided for in Article 58 that, in the absence, in the court's opinion, of special grounds for choosing the temporary nature of the contract, it will be re-qualified into an indefinite one with the imposition of penalties on the employer.

With whom can you arrange temporary cooperation?

A detailed list of persons with whom it is legal to conclude an agreement for a specific period is provided for in article 59 of the Labor Code. The foreseen cases can be divided into three categories, depending on the moment that determines the expiration date of the contract:

“Deputies” - until a permanent employee leaves for work, whose duties were performed during the period of his long absence;
"Conscripts" - until the end of certain work:
obviously temporary;
going beyond the normal activities of the organization;
held abroad;
public nature;
in the form of an internship;
as an alternative service, etc.
"Seasoners" - until the completion of work related to natural and climatic features.

Also, by mutual agreement of the parties, it is possible to conclude contracts of a temporary nature with:

those who go to work in small businesses;
pensioners;
“Deputies” elected by competition;
managers and chief accountants;
full-time students;
part-time workers, etc.

But here it is important to remember that if such an employee decides to appeal against the urgent nature of his employment contract, and the court decides that on the part of the employee the decision on a temporary contract was not voluntary, then the employer will have to reinstate such an employee in his position on a permanent basis.

Contents of a fixed-term employment contract

The rules for drawing up for an employment contract of a temporary nature are almost the same as for an open-ended employment contract, and indicate the mandatory presence in the text:

information about the signatories - the name of the employer and the full name of the employee, their addresses;
passport data of the employee or information about other documents proving his identity;
TIN of the employing organization;
place and date of signing the contract;
place of work and position;
official salary;
working conditions;
social guarantees;
privacy issues, etc.

However, there are some peculiarities: unlike a contract for permanent cooperation, two more points must be stipulated in a temporary contract:

1) Its validity period, admissible in the form of:

a specific date - then this day will be considered the last day of the employee's work under this agreement;
the moment an event occurs - for example, the signing of an act of completion of work or the exit to work of an employee who was replaced by a "conscript" - then the dismissal will be postponed until this event occurs.

2) Justification of the temporary type of contract, preferably including the wording of the category of employees from the list of Article 59 of the Labor Code of the Russian Federation and an explanation of the conditions and nature of work, demonstrating the preference for choosing a fixed-term contract.

If a fixed-term employment contract does not contain an exact definition of the moment of its termination, then it can automatically be recognized as an indefinite one. And in the absence of justification for the temporary nature of the contract, the employer may face a penalty for evading the employee's rights provided for persons who enter into perpetual contracts.

What threatens for the unjustified conclusion of a fixed-term contract?

V judicial procedure temporary labor contract may be appealed. The court may decide to change the status of a contract to a permanent one when:

the employer in the text of the contract did not indicate the exact term for its termination;
with the employee for the same job duties fixed-term contracts are concluded several times in a row;
the conditions were identified that allow one to assume that an employee is forced to conclude a temporary contract instead of an indefinite one;
the employer has violated the three-day deadline for notification of the end of the contract.

In all these cases, the employee will be reinstated in the position in court and on a permanent basis. In addition, he will be entitled to pay from the employer for the period from the date of the annulled dismissal to recovery (as for forced absenteeism), compensation for moral damage, costs of lawyers, etc.

An employer, in the event of a judicial change in the status of an employment contract, may be held administratively liable under Article 5.27 of the Code of Administrative Offenses of the Russian Federation in the form of:

for organizations - a fine from 30 to 50 thousand rubles. or suspension of activities for up to 3 months;
for officials- a fine from 1 to 5 thousand rubles, and in case of a repeated violation - disqualification from one to three years.

Probationary period for a fixed-term contract

To check the suitability of the candidate for the chosen position, his professionalism and competence, the employer has the right to establish a probationary period for the employee. If the employment contract does not say anything about such a period, it means that it is not provided for, and the employee immediately begins to work on a general basis. This is provided for by Article 70 of the Labor Code of the Russian Federation. However, if the probationary period is stipulated by the terms of the contract, then, according to general rules, it should not last more than three months.

The urgent nature of the employment contract makes its own adjustments to the envisaged length of the probationary period. When concluding a contract for the period:

less than two months - a probationary period cannot be established;
from two to six months - the test period cannot exceed two weeks;
from six months to five years - on a general basis.

In addition, the law provides for a list of persons who cannot be subjected to a probationary period. For example, pregnant women, minors selected for a position by competition, etc. So the appointment of tests within the framework of a fixed-term employment contract is possible and legitimate, but subject to a number of the listed conditions.

What to write to a temporary worker in labor?

When concluding a fixed-term employment contract, according to the letter of Rostrud dated 06.04.2010 No. 937-6-1, his validity determined by the text of the contract itself and reflected in the employment record in work book is not subject to.

The fact is that the purpose of keeping a book is to calculate the time of work experience, and it is carried out according to the dates of employment and dismissal, without taking into account the urgency or indefinite term of the contracts concluded. Thus, the wording introduced into the labor one will be: "Admitted to the position ...", and phrases like "A fixed-term contract has been concluded ..." will be recognized as erroneous.

Leave under a fixed-term employment contract

The urgent nature of the contract does not affect the employee's entitlement to annual paid leave. However, the number of days possible for rest will directly depend on the duration of cooperation between the employer and the temporary worker.

Less than two months - 2 working (not calendar!) Days for each month of work.
From two months to five years - in the usual way, i.e. 2.33 calendar days for each month or 28 calendar days in year.

In the event that at the time of the expiration of the contract or dismissal for another reason, the employee has the days of unpaid leave provided for by law, then he must be paid compensation in the amount of the due vacation payments.

If an employee decides to take the days of legal rest immediately before dismissal and at the time of termination of the contract will be on official leave, then his last working day will be considered the last day of the vacation, and dismissal on the date specified by the contract will not be the basis for recognizing the contract as indefinite.

Should I pay for sick leave with a fixed-term contract?

The law provides for employees with whom fixed-term employment contracts are concluded, the provision of social guarantees on an equal basis with permanent employees. Sick leave certificates provided by temporary employees must be paid in the prescribed amount and in due time.

The only limitation in force is due to the fact that the maximum days for sick leave compensation for workers with a fixed-term contract will be 75 days.

Is a temporary worker entitled to severance pay?

The availability of mandatory payments upon dismissal depends on the duration of the contract:

Less than two months - severance pay not provided;
From two months to five years - as when a permanent employee is fired: in the amount of two weeks' wages.

A similar amount is provided for in the event of dismissal associated with the termination of the employer's activities. The only difference is that seasonal employees should receive a notice of termination of a fixed-term contract due to the liquidation of the employer not in three days, as with other dismissal options, but in seven days (Article 296 of the Labor Code of the Russian Federation).

When deciding to conclude an urgent labor contract, the employer must remember that this type of contract often becomes the subject of legal disputes. In this case, it is the employer who will have to prove the validity and legality of the temporary nature of the contract. In order not to receive penalties, it is better to choose a fixed-term employment contract only for persons listed in the Labor Code, and remember about the conditions provided by law for temporary workers.

By general rule a labor contract is concluded with any employee who works in the organization. It regulates the relationship between employer and employee.

One of the options for an employment contract with an employee is the conclusion of a fixed-term employment contract. When preparing it, it is worth considering the formalities that will help to avoid claims during verification. labor inspectorate... These, in particular, are the specific period for which the contract is signed, as well as the grounds for its conclusion.

With whom to conclude?

Usually, a fixed-term employment contract is concluded in two cases. The first is when labor relations cannot be established for an indefinite period, taking into account the nature of the work ahead or the conditions for its performance. For example, for the duration of the duties of an absent employee who retains a place of work (maternity leave).

A fixed-term employment contract must be concluded when performing temporary (up to two months) or seasonal work, when, due to natural conditions, it can be performed only during a certain period, season.

Such an agreement is also concluded with employees sent to work abroad. You need to sign an agreement with them for a period not exceeding three years (Article 338 of the Labor Code of the Russian Federation). At the end of three years, the employment contract will have to be renegotiated for a new term.

Labor law obliges to sign fixed-term employment contracts when carrying out work outside the usual activities of the employer. For example, reconstruction, installation, commissioning and other works.

Need to know

A fixed-term employment contract can be concluded in two cases: by agreement of the parties and depending on the nature of the work performed.

It is also necessary to conclude a fixed-term employment contract with employees performing temporary (up to one year) work. In particular, if it is work related to the expansion of production or the volume of services provided.

A fixed-term employment contract is also concluded with persons applying for work in organizations created on the basis of certain period(or when this period cannot be accurately determined), as well as for the performance of a known job.

It is worth remembering that a fixed-term employment contract must be signed with personnel who are aimed at performing work directly related to internships and vocational training. The same story is when an employee is sent by the employment service to work on a temporary basis or community service.

The second situation, when a fixed-term employment contract is required, is the performance of work without taking into account its nature and conditions of performance. For example, such an agreement is concluded with employees who come to work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people. For retail and consumer services, the minimum number is 20 people.

A fixed-term employment contract is concluded with old-age pensioners entering work, as well as with persons who, for health reasons, in accordance with a medical certificate, are allowed to work exclusively of a temporary nature.

Special rules

The maximum term for concluding a fixed-term employment contract is five years.

In addition, a fixed-term employment contract is concluded when the company is located in the Far North and equivalent areas, if employment is associated with moving to the place of work.

A fixed-term employment contract can be concluded with managers, deputy managers and chief accountants of organizations, regardless of organizational and legal forms and forms of ownership.

The list of cases in which a fixed-term employment contract can be concluded is open, therefore it can be concluded in other situations that are permitted by law, for example, when carrying out urgent work to prevent catastrophes, accidents or other emergencies... However, such an agreement must also contain information and mandatory conditions under which it is considered concluded. In particular, it is necessary to indicate the place of work, labor functions, information about the parties to the contract, and others (Article 57 of the Labor Code of the Russian Federation).

Term of imprisonment

A fixed-term employment contract is an agreement in which the term of its validity is determined (Article 59 of the Labor Code of the Russian Federation). This rule means that the contract must contain a specific period for which the employee is hired. Otherwise, the contract is automatically transferred to the category of unlimited.

The end of the term of such an agreement may be the occurrence of certain events (for example, the employee who was replaced, came out of vacation or the end of seasonal work) or a certain date.

The maximum term of an employment contract is five years (Article 58 of the Labor Code of the Russian Federation). As for the minimum period, it is not regulated by law. It can be concluded for a month, for a week, or even for one day. If a fixed-term employment contract is signed for one day, then the employer must have a justification for concluding such a contract. In this case, it is much more profitable to conclude contracts of a civil nature (contract, paid provision of services).

Multiple renegotiation of a fixed-term employment contract for a short period to perform the same job function is a reason for retraining into an agreement concluded for an indefinite period (resolution of the Plenum The Supreme Court RF dated March 17, 2004 No. 2).

However, if an employee replaced another employee and he went to work, then the current contract can be terminated with the "conscript" and, by agreement of the parties, a new fixed-term employment contract can be concluded.

Basis of conclusion

A fixed-term employment contract must contain the grounds on which it is urgent in nature. For example, this is the performance of seasonal work, in connection with which an employee is hired for several months, or work abroad. Such circumstances must be listed in the employment contract. In the absence of sufficient grounds capable of qualifying the contract as urgent, the regulatory authorities will consider its conclusion unlawful and establish it as an agreement concluded for an indefinite period.

Therefore, the employment contract must contain the reason (grounds) and the period for which it is concluded.

Registration

When hiring under a fixed-term employment contract, in the order for hiring under form No. T-1 or T-1a you need to indicate the expiration date of its validity or an event that will serve as the basis for its termination, for example, the employee's exit from parental leave.

Attention

Payments under a fixed-term employment contract are subject to both personal income tax and contributions to funds in general order.

In addition, in the section "Conditions of employment, nature of work" should indicate that the employee is hired for a certain period, and (or) the performance of specific work. For example, "under a fixed-term employment contract in connection with a job in Amsterdam" (see. sample sample filling out an order for employment under a fixed-term employment contract).

Nuances of work

Having concluded a fixed-term employment contract with an employee, the organization's accountant must comply with certain conditions. So, if none of the parties demanded the termination of such an agreement due to the expiration of its validity period and the employee continues to work, the condition of the urgent nature of the employment contract becomes invalid. Then the employment contract is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).

Upon the expiration of a fixed-term employment contract during a woman's pregnancy, the employer is obliged, upon her written application and upon presentation of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract (until the end of pregnancy). Such an employee, at the request of the employer, is obliged to submit a medical certificate confirming pregnancy once every three months.

Employees working under a fixed-term employment contract are prohibited from establishing a probationary period (Article 289 of the Labor Code of the Russian Federation).

Employees with whom an employment contract has been concluded for up to two months, with their written consent, can be involved in work on weekends and non-working days. holidays... Work for these days is compensated in monetary form not less than double the size. Recall that, as a general rule, for work on a weekend or a non-working holiday, an employee can be provided at his choice either financial compensation, or the right to an additional day of rest (Article 153 of the Labor Code of the Russian Federation). However, "conscripts" cannot take another day for rest, but only monetary compensation.

An employee who has entered into an employment contract for up to two months is not paid severance pay upon dismissal. However, otherwise may be established by agreement of the parties by a collective or labor agreement or federal laws (Article 292 of the Labor Code of the Russian Federation).

"Conscripts" are granted paid vacations or compensation is paid upon dismissal at the rate of two working days per month of work (Article 291 of the Labor Code of the Russian Federation).

An employee who has entered into an employment contract for a period of up to two months, in the event of its termination, is obliged to writing notify the employer three calendar days in advance. If the employer plans to dismiss such an employee in connection with the liquidation of the organization, reduction of the number or staff, it is necessary to notify the employee in writing against signature at least three calendar days in advance (Article 292 of the Labor Code of the Russian Federation).

Yu.L. Ternovka, expert editor

We would like to conclude a temporary employment contract with an employee who is not our employee (up to two months) for certain jobs... In this regard, we had questions: 1. Did I understand correctly that in a fixed-term contract (up to two months) it is possible not to prescribe the position for which the employee is hired, but only the type of assigned work? 2. Under such an agreement, we must draw up the contract itself, the order for admission, and are we obliged to make an entry in the work book? 3. At the end of the work, do we have to issue an act of completion, un.form T-73? 4.With the payments established by the contract, we must pay personal income tax, insurance premiums in the FSS, Pension Fund, OMS in the usual way?

It is possible to conclude a fixed-term employment contract with a citizen only in exceptional cases. A complete list of situations in which an organization must conclude a fixed-term employment contract is given in article 59 of the Labor Code of the Russian Federation. When a citizen is hired for work under a fixed-term employment contract, the contract itself is drawn up, an order for hiring, and a record of hiring is made in the work book. If the end of the term of the employment contract is determined by the occurrence of a certain event (completion of work under the contract), then it is necessary to draw up an act on unified form No. T-73. The salary of an employee is subject to personal income tax and insurance premiums in accordance with the general procedure.

The rationale for this position is given below in the materials of the Glavbuh System

When a fixed-term contract is concluded

As a rule, a fixed-term employment contract is concluded in cases where labor relations cannot be established for an indefinite period, taking into account the nature of the work ahead or the conditions for its performance * (Art., Labor Code of the Russian Federation).

So, for example, an organization must conclude a fixed-term employment contract with employees who: *

perform temporary, urgent, seasonal work (this category of employees also includes athletes who are temporarily transferred to another job) (part 2 of article 348.4 of the Labor Code of the Russian Federation);
are sent to work abroad;
accepted to perform work outside the normal scope of the organization (installation, installation, etc.);
accepted to perform a specific work (when it is impossible to determine the deadline for its completion);
go to work in an organization created on certain time, etc.

A complete list of situations in which an organization must conclude a fixed-term employment contract is given in article 59 of the Labor Code of the Russian Federation.

In addition, a fixed-term employment contract can be concluded by agreement of the parties. This is allowed if the employee *:

is an old-age pensioner;
for medical reasons, can only perform temporary work;
will work in the regions of the Far North and equivalent areas (if he needs to move to his place of work);
will perform urgent work to prevent accidents, catastrophes, etc .;
studies in full-time education;
is an athlete, coach;
will perform creative work(the list of professions and positions of creative workers was approved by the decree of the Government of the Russian Federation of April 28, 2007 No. 252);
will work in a small enterprise with up to 35 people (in retail and consumer services enterprises - up to 20 people);
accepted for the position of the head of an organization or chief accountant;
is a part-time worker, etc.

A complete list of situations in which an organization has the right to conclude a fixed-term employment contract is also given in Article 59 of the Labor Code of the Russian Federation. * This list is supplemented by the features of concluding fixed-term employment contracts with athletes, coaches, given in Article 348.2 of the Labor Code of the Russian Federation.

Duration of the employment contract

The maximum term of a fixed-term employment contract is no more than five years, and the minimum is not established by law. This follows from the provisions of Article 58 of the Labor Code of the Russian Federation.

In this case, the end of the term of the employment contract can be determined: *

a specific date;
the onset of a certain event (completion of work under the contract, the end of the season, the exit of an absent employee, for whose temporary replacement a conscript employee was hired).

This procedure is provided for in Article 79 of the Labor Code of the Russian Federation.

Nina Kovyazina

Registration procedure

When applying for a job: *

an employee, as a rule, writes a statement in any form;
the head of the organization issues a hiring order.

Labor contract

Draw up the employment contract in duplicate - one for each of the parties. The employee must sign on the copy of the organization. His signature confirms that he received his copy of the employment contract *. Such rules are established by part 1 of article 67 of the Labor Code of the Russian Federation.

In commercial organizations

Draw up an employment contract in any form. The main thing is that it contains the mandatory information and conditions provided for by the chapters and the Labor Code of the Russian Federation. For example, information on salary, position, working hours, etc. In this case, the position in the employment contract must be indicated in strict accordance with the staffing table. * Hire an employee for a position that is not included in staffing table, it is forbidden. This follows from Article 57 of the Labor Code of the Russian Federation and is confirmed in the letter of Rostrud dated January 21, 2014 No. PG / 13229-6-1.

The order of acceptance to work

Fill out the hiring of an employee with an order issued on the basis of a concluded employment contract. The content of the order must comply with the terms of the contract *. This is stated in part 1 of article 68 of the Labor Code of the Russian Federation. For persons with whom the organization will conclude civil law contracts (contracts, repayable rendering services, etc.), admission orders are not needed. Labor legislation does not apply to them (Article 11 of the Labor Code of the Russian Federation).

Unified forms of orders for employment were approved by the decree of the State Statistics Committee of Russia dated January 5, 2004 No. 1. When accepting one person, an order is drawn up according to the form No. T-1 *. If the organization simultaneously hires several people, then it is more convenient to make an order according to the list form No. T-1a.

It is necessary to familiarize the employee with the order for his employment within three days from the moment when he actually started work. * The order is brought to his attention under signature. Before concluding an employment contract, the employee must be familiarized (signed) with the Labor Regulations, the collective agreement and others internal documents regulating labor activity... This procedure is provided for in parts and article 68 of the Labor Code of the Russian Federation.

Nina Kovyazina, Deputy Director of the Department of Education and human resources Ministry of Health of Russia

3.Article:Not every fixed-term employment contract can be terminated with a maternity worker

What employers need to consider

The decision to conclude a fixed-term employment contract with employees must be substantiated with documents and indicate the time or circumstances of its termination. The list of cases of concluding fixed-term employment contracts is not exhaustive, federal laws additional bases can be installed 2. For example, a lawyer's assistant is hired for the period of cooperation between the lawyer and the office. If in the considered case the Cooperation Agreement had been concluded before the employment contract with the employee was drawn up, it would be difficult to challenge in court the possibility of concluding a fixed-term contract with the employee.

It is important to have documentary evidence of the completion of the work. If you repeatedly conclude fixed-term contracts for the performance of the same labor function, the court may recognize the employment contract as concluded for an indefinite period (table above). To avoid this, after the work stipulated by the employment contract is completed, fill out an act with the employee in accordance with the unified form No. T-73 3 * (see sample).

To decide on which payments you need to withhold personal income tax, determine: *

whether your organization is a tax agent for this type of payments;
what is the status of the recipient of income resident or non-resident, as well as the source of income received by him;
is included given view payments to the object of taxation.

Income from sources in Russia

Income received from sources in Russia includes: *

1. Income received from Russian organizations and entrepreneurs, as well as permanent missions of foreign organizations in Russia, in the form of:

dividends;
insurance payments upon occurrence insured event;
benefits, pensions, scholarships and other similar payments.

2. Performance Income job responsibilities, work performed, service rendered or other action performed in Russia *. For these payments, the actual location of the source of payment of income does not matter. It is important where the person worked - in Russia or abroad.

Sergey Razgulin, Actual State Counselor of the Russian Federation, 3rd Class

Mandatory pension (social, health) insurance contributions include: *

insurance contributions to the Pension Fund of the Russian Federation for compulsory pension insurance (including for the insurance and funded parts of labor pensions. Contributions accrued in 2014 are transferred to the budget in total in one payment document. This amount will be distributed to the insurance and funded parts Pension Fund of the Russian Federation based on personalized accounting data);
insurance contributions to the FSS of Russia for compulsory social insurance in case of temporary disability and in connection with maternity;
insurance contributions to the FFOMS for compulsory health insurance.

This follows from the provisions of Part 1 of Article 1 of the Law of July 24, 2009 No. 212-FZ and Article 22.2 of the Law of December 15, 2001 No. 167-FZ.

Taxable payments

Contributions to compulsory pension (social, medical) insurance are calculated on benefits that are paid in cash and in kind:

within the framework labor relations*;
the head of the organization, who is its sole participant or the founder (regardless of the existence of an employment contract with him);
under civil law contracts, the subject of which is the performance of work, the provision of services;

Insurance premiums and benefits include, in particular:

the salary;*

Love Kotova, Deputy Director of the Department for the Development of Social Insurance of the Ministry of Labor of Russia

Best regards, Natalia Kolosova,

Your personal expert.

The company can hire employees either permanently or for a strictly limited period. In the latter case, a temporary employment contract is signed.

What does a fixed-term employment contract mean?

When hiring an employee, depending on the circumstances of the specific hiring and the specifics of the organization's work, a fixed-term employment contract is signed either taking into account the work to be assigned (part 1 of article 59 of the Labor Code of the Russian Federation), or by mutual agreement of the head and employee (part 2 of article 59 of the Labor Code) RF). This is the main difference between a fixed-term employment contract and a contract for an indefinite period.

Grounds for the conclusion of a fixed-term employment contract

Today these are the following grounds:

replacement of a temporarily absent employee;
temporary work (no more than two months);
seasonal workers;
employees sent to work abroad;
employees hired for non-standard work for the organization (installation, reconstruction) or in the event of a temporary expansion of production;
the entire staff of employees hired by the company, created for a limited period of time or for specific temporary work ( design work), incl. if the moment of completion of work cannot be determined in advance;
trainees and trainees;
filling an elective position;
workers sent by the employment service for temporary (public) work;
alternative civil servants.

If there are no circumstances of a temporary nature of the work, the employee and his manager can agree to sign a fixed-term employment contract. This, however, can be done in strictly defined cases (part 2 of article 59 of the Labor Code of the Russian Federation):

hiring to a small business entity (the number of employees is less than 35, and in retail and consumer services - less than 20);
hiring retirees or employees who, for health reasons, are allowed only temporary work;
hiring an employee to the Far North, if it is planned to move him;
hiring employees by competition;
hiring creative workers (media, circuses, theaters, etc.);
hiring managers, their deputies and chief accountants of companies;
hiring full-time students;
hiring seafarers;
hiring part-time workers;
hiring employees to prevent emergencies, accidents, epidemics and other similar events, as well as to eliminate the consequences of these events, if they have already occurred.

How to issue a fixed-term employment contract?

First of all, at the stage of drawing up the contract, it is necessary to fix in it its term and justification for the urgency, otherwise the contract will de jure be considered indefinite (part 3 of article 58 of the Labor Code of the Russian Federation). In this case, it will be possible to terminate it only on the general grounds of the Labor Code of the Russian Federation for unlimited contracts (Chapter 13 of the Labor Code of the Russian Federation).

The rest of the conditions of a fixed-term employment contract are no different from the conditions in an open-ended contract

Fixed-term employment contract and sick leave

Labor legislation establishes a rule according to which an employee cannot be dismissed at the initiative of the employer during illness (Article 81 of the Labor Code of the Russian Federation). It should be borne in mind that dismissal due to the expiration of the temporary contract is not a dismissal initiated by the employer.

Therefore, it is possible to dismiss an employee under a fixed-term employment contract, if the term of the latter has expired, even during his illness. The company is still obliged to pay for sick leave with a fixed-term employment contract (Article 183 of the Labor Code of the Russian Federation), however, if the contract with the employee was concluded for a period of less than six months, no more than 75 days of illness are paid, in all other cases - the entire period of temporary disability of the employee, with whom a fixed-term employment contract was concluded (see article 6 of the Federal Law No. 255-ФЗ).

Fixed-term employment contract and work book

The work book when hiring and dismissing under a fixed-term employment contract is filled in the same way as in the case of an open-ended contract.

There is only one important feature of making an entry upon admission - the term of the employment contract is not recorded in the work book (

25.02.2011
"Accounting.ru"

Let us say right away that employees registered under a fixed-term employment contract have the right to the same social guarantees as “indefinite” ones. Only vacations are calculated a little differently. The only thing that "conscripts" are not entitled to is severance pay. At the same time, it is much easier to part with such employees.

A fixed-term employment contract is concluded for a maximum of five years. Unlike an indefinite one, this contract can be concluded not with every employee and not for every job. Fixed-term contract provided by law for those cases when labor relations cannot be established for an indefinite period, taking into account the nature of the upcoming work or the conditions for its implementation (Article 58 of the Labor Code of the Russian Federation). These conditions are defined in article 59 of the Labor Code. Here are the most suitable for everyone.

Conditions of confinement

The text of a fixed-term employment contract must indicate the reasons and circumstances giving the right to conclude this particular type of contract (Article 57 of the Labor Code of the Russian Federation).

The basis for concluding a fixed-term employment contract may be:

absence of an employee for whom the place of work is retained. You have every right to take another person to this place and conclude an employment contract with him for a certain period - until the absent employee starts his duties;
the work for which the person is hired is temporary (up to two months) or seasonal;
carrying out work outside the scope of normal activities, as well as urgent work;
carrying out work related to the expansion of production, if it is known in advance that this work or this expansion is of a temporary nature (up to one year);
performance of work directly related to the internship and vocational training employee;
if you hire a person to perform a certain temporary job, the completion date of which is unknown;
the person you are hiring is a full-time student, retired or part-time student;
you hire a person for the position of a manager or chief accountant;
the employee was elected through a competition to fill a position. In this case, the competition must be held in the manner prescribed labor legislation and other normative legal acts containing labor law norms;
other cases provided for by the Labor Code or other federal laws.

Small businesses, including individual entrepreneurs, can conclude fixed-term employment contracts if the number of their employees is generally no more than 35 people. For employers in the field of retail trade and consumer services, the limit is 20 people.

Note: for employees hired for temporary work for a period of up to two months, a probationary period is not established (Article 289 of the Labor Code of the Russian Federation). Probation for seasonal workers should not exceed two weeks (Article 70 of the Labor Code of the Russian Federation).

If the term of its validity is not specified in the employment contract, the contract is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).

Dangerous moments

It is expressly prohibited by Article 58 of the Labor Code to conclude fixed-term employment contracts instead of indefinite ones in order to evade providing employees with their rights and guarantees.

An employment contract concluded for a specified period in the absence of sufficient grounds established by the court is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).

If the court re-qualifies employment contracts as perpetual, then apart from all due payments employees (reinstatement at work, payment for forced absenteeism, moral damage, etc.) will have to pay a fine (Article 5.27 of the Code of Administrative Offenses of the Russian Federation). Its size for officials is 1000-5000 rubles, for legal entities - 30,000-50,000 rubles. Moreover, the court can suspend your activities for up to three months.

To prevent this from happening, you need to pay special attention to the correct and timely documentation of labor relations with employees, as well as proper registration. The document must contain all the necessary details: date, number, signature, etc. Let's list a few key points.

If the court re-qualifies labor contracts into indefinite ones, then in addition to all the payments due to employees (reinstatement at work, payment for forced absenteeism, moral damage, etc.), you will have to pay a fine (Article 5.27 of the Code of Administrative Offenses of the Russian Federation).

The contract must be concluded for a specified period. In case of legal proceedings, you will have to prove that the employment contract could not be concluded for an indefinite period. This obligation of the employer is enshrined in article 56 of the Code of Civil Procedure. If you cannot prove this, then a fixed-term employment contract can be retrained into an indefinite one. This is due to the fact that article 59 of the Labor Code lists cases in which the employer has the right, and not the obligation, to conclude a fixed-term employment contract. He can exercise this right only by observing all the requirements of Article 58 of the Labor Code.

You cannot conclude several fixed-term employment contracts in a row with the same employee to perform the same job function. If the fact of multiple conclusion with one employee of short-term fixed-term employment contracts for the performance of the same labor function is established, the court has the right to recognize the employment contract as open-ended (clause 14 of the resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).

A fixed-term employment contract concluded by agreement of the parties can also be recognized as indefinite. This will happen if the court decides that employees were forced to enter into fixed-term employment contracts.

Another dangerous moment is the expiration of the term of the employment contract. If a person continues to work and the employer does not require termination of the contract, then it is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation). Therefore, you need to carefully monitor the end of the term of employment contracts and draw up everything correctly.

Calculate vacation pay

A conscript worker has the same right to annual paid leave as an employee who is issued under an open-ended employment contract. On the basis of Article 114 of the Labor Code, he is generally granted annual paid leave with the preservation of his place of work and wages... The duration of the leave for “indefinite” should not be less than 28 calendar days per year (Article 115 of the Labor Code of the Russian Federation). If a person is registered under a fixed-term employment contract, vacation pay is considered differently, the duration of his vacation directly depends on the number of days worked.

So, according to article 295 of the Labor Code, employees who have concluded fixed-term employment contracts for a period of less than two months or perform seasonal work are granted leave in the amount of two working days for each month of work.

Employees who have entered into fixed-term employment contracts for a period of less than two months or perform seasonal work are granted leave in the amount of two working days for each month of work (Article 295 of the Labor Code of the Russian Federation).

Please note: the right to use leave for the first year of work arises for an employee only after six months of his continuous work with one employer (Article 122 of the Labor Code of the Russian Federation).

The amount of payment for an employee's vacation, drawn up under a fixed-term employment contract, depends on the amount average salary... The rules for calculating the average wage are unified and established in Article 139 of the Labor Code and in the Regulation on the specifics of the procedure for calculating the average wage, approved by the Government of the Russian Federation of December 24, 2007 No. 922.

Regardless of the operating mode average earnings calculated on the basis of the salary actually accrued to the employee and the time actually worked by him for 12 calendar months preceding the period during which the employee retains the average salary. The calendar month for calculation is the period from the 1st to the 30th (31st) day of the corresponding month, inclusive (clause 4 of the Regulation on the specifics of the procedure for calculating the average wage).

The average earnings are equal to the product of the average daily earnings by the number of days in the period payable.

To calculate the average daily earnings for paying holidays in calendar days and paying compensation for unused vacations you need to divide the amount of wages actually accrued for the billing period by 12 and by the average monthly number of calendar days (29.4).

An employee can take leave at his own expense in the general manner on the basis of a written application (Article 128 of the Labor Code of the Russian Federation).

Often, the vacation time goes beyond the term of the employment contract, and the employee is granted vacation with subsequent dismissal, then the last working day of the employee will be the last day of his vacation. At the same time, the employment contract is not recognized as indefinite, because the rule is to consider the last vacation day as the day of dismissal, established by article 127 of the Labor Code.

Example
The travel company entered into an employment contract for a period of six months with the swimming instructor Lastov with a salary of 30,000 rubles. per month. Lastov taught tourists to scuba dive six days a week from April 1 to September 30, 2010 inclusive. Let's calculate the amount of vacation pay for a seasonal worker.

Lastov worked for six months in full, the duration of his vacation will be:

6 months x 2 days / month = 12 days

The amount of accrued wages will be:

30,000 rubles / month x 6 months = 180,000 rubles.

The number of working days will be:

Average daily earnings will be:

RUB 180,000 : 154 days. = 1168.83 rubles / day

The amount of vacation pay will be:

1168.83 RUB / day x 12 days = RUB 14,025.96

Termination rules

So that the employment contract is not considered indefinite, the employer must notify the employee in writing about the expiration of its validity period at least three calendar days before dismissal (Article 79 of the Labor Code of the Russian Federation).

Please note: it is the employer or the person authorized to do this in documents that must notify the employee.

A temporary worker hired for the period of absence of the main one may not be notified, since the absent person may go to work even earlier than the expected date. The conscript knows in advance that his employment contract expires when the main employee starts working.

In addition to expiration, there are other reasons for terminating a fixed-term employment contract. An employment contract can be terminated ahead of schedule by agreement of the parties (Article 78 of the Labor Code of the Russian Federation), at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation) or an employee (Article 80 of the Labor Code of the Russian Federation).

If the initiator of the termination is an employee, then, as a general rule, he must notify the employer in writing no later than two weeks before the dismissal (Article 80 of the Labor Code of the Russian Federation).

When an employment contract is concluded for no more than two months, this period is reduced to three calendar days (Article 292 of the Labor Code of the Russian Federation). A three-day period is also provided for employees performing seasonal work (Article 296 of the Labor Code of the Russian Federation).

If the head of the organization is dismissed early, he must notify the employer (founder) no later than a month before leaving (Article 280 of the Labor Code of the Russian Federation).

You cannot terminate a fixed-term employment contract with a pregnant employee on the grounds that it has already expired. The term of the employment contract is extended until the end of her pregnancy. In this case, a woman must submit a corresponding statement and a doctor's certificate confirming the state of pregnancy. The employer can request such a certificate no more than once every three months (Article 261 of the Labor Code of the Russian Federation).

A pregnant employee can be dismissed on the basis of the expiration of the employment contract only in one case - if she worked in the place of an absent employee who went to work. After a full-time employee returns to work, the employment contract with the "conscript" is terminated on the basis of the expiration of its term (clause 2 of article 77 of the Labor Code of the Russian Federation).

A pregnant employee can be dismissed on the basis of the expiration of the employment contract only in one case - if she worked in the place of an absent employee who went to work. After a full-time employee returns to work, the employment contract with the "conscript" is terminated on the basis of the expiration of its term (clause 2 of article 77 of the Labor Code of the Russian Federation).

In addition, it is impossible to dismiss an employee who falls ill at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation). The day of dismissal of such an employee will be the day after the end of the illness.