Temporary employment contract. With whom and according to what rules the employer concludes a fixed-term employment contract Article 59 60 of the Labor Code of the Russian Federation

How to fulfill the requirements of Article 59 of the Labor Code of the Russian Federation for fixed-term employment contracts in order to avoid claims from the GIT.

From the article you will learn:

When can I conclude a fixed-term employment contract under the Labor Code

If relations with the employee cannot be established for an indefinite period, conclude according to the Labor Code of the Russian Federation . It is of two types (part 2 of article 58 of the Labor Code of the Russian Federation). Choose which one suits you best.

First type- when you cannot conclude a contract for an indefinite period due to the nature of the future work or the conditions for its implementation.

Examples of cases when the first type is used are listed in Part 1 of Article 59 of the Labor Code of the Russian Federation. if you need to take a temporary worker for the period of absence of the main one, for whom you keep your job. Sign for a period of work such as temporary up to two months, seasonal, work abroad, and the like.

The second type of contract- by agreement of the parties. It does not take into account the nature of the future work, nor how it will be performed by a temporary employee. For example, under part 2 of article 59 of the Labor Code of the Russian Federation with employees, if you are a small business. But only when the number of employees does not exceed 35 people. See the table below for other cases.

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For how long to conclude a fixed-term employment contract under the Labor Code of the Russian Federation

The law has established only a deadline for which you can conclude an urgent contract under Article 59 of the Labor Code of the Russian Federation . It should not exceed five years (clause 2, part 1, article 58 of the Labor Code of the Russian Federation). There is no minimum term in the law, but it can be tied:

What conditions to include under the Labor Code of the Russian Federation in a fixed-term employment contract

Include all the necessary information and conditions that are listed in Article 57 of the Labor Code of the Russian Federation. This is information about a temporary worker, employer, mandatory and additional conditions. For a fixed-term employment contract, the Labor Code also considers important - the duration and the reason that became the basis for its conclusion.

Term actions

If you do not indicate the validity period of a fixed-term employment contract, according to the Labor Code, this means that it is concluded for an indefinite period (part 3 of article 58 of the Labor Code of the Russian Federation). And it doesn’t matter that you prescribed the deadline in the order by which you hired a temporary employee.

Cause. Be sure to include in the contract the basis on which it was concluded. Rostrud insists on this in a letter dated November 30, 2009 No. 3523-6-1. The basis must be one of those listed in Article 59 of the Labor Code of the Russian Federation. Do not enter into a fixed-term employment contract if it is simply the requirement of the employee or the desire of the employer, and there are no grounds for concluding it.

How to conclude a fixed-term employment contract under the Labor Code of the Russian Federation for the duration of a business trip

According to part 1 of article 59 of the Labor Code of the Russian Federation, a fixed-term employment contract can be concluded so that a temporary worker performs the duties of an absent main worker. As long as he keeps his job. During the business trip, you retain the place of work for the main employee (Article 167 of the Labor Code of the Russian Federation). Therefore, feel free to take a temporary worker during the absence of the main one.

The deadline for completing temporary work is to indicate the main employee's return to work from a business trip. Make an entry about the term with reference to the Labor Code of the Russian Federation in a fixed-term employment contract as in the sample below. In this case, you will not have problems if the director suddenly extends the business trip for the main employee or, conversely, shortens its period.

How to conclude a fixed-term employment contract under the Labor Code of the Russian Federation for the duration of the vacation

An employee can be in any of . In the annual paid, without pay or training. In all these holidays, the employee retains his place of work. Therefore, during his absence, you have the right to instruct a temporary worker to perform his duties under Article 59 of the Labor Code of the Russian Federation “Fixed-Term Employment Contract”. Make a record of the deadline, for example, like this:

Do the same when concluding a fixed-term employment contract under the Labor Code of the Russian Federation for other cases when the employee is absent and his place of work is retained. For example, for cases where the main employee stays for a long time on a sick leave or he was temporarily transferred to another job.

How, according to the Labor Code of the Russian Federation, in a fixed-term employment contract for the period of parental leave, indicate the expiration date

The employee retains the place of work when he is in parental leave. During his absence, you can hire a temporary worker. But then do not indicate the end date of the fixed-term employment contract. The Labor Code allows this. You do not know when the main employee will return to work. After all, he can go to work ahead of schedule or immediately take annual leave.

In order not to violate the Labor Code of the Russian Federation in a fixed-term employment contract, do not prescribe a specific date for its end. Also don't use the notation: Until the end of parental leave. Instead of such an entry or a specific date, indicate - "beforereturn to work of the main employee"(clause 1.6 in the sample below).

In a fixed-term employment contract, the Labor Code allows you to specify a date or event as the end date. If there are three grounds for termination, list all three events. For example, like this:

How to concludefixed-term employment contract according to the Labor Code of the Russian Federation

Employment under a fixed-term employment contract The Labor Code prescribes to issue an order in the form No. T-1 or other form. Your company can develop it yourself. If you are using form No. T-1, fill in the dates "from" and "to" in the "Employ" line. In the “to” line, enter not the date, but the event, if so indicated in the contract (sample below).

Whenfixed-term employment contractaccording to the Labor Code of the Russian Federation becomes indefinite

The contract will become indefinite if its validity period has expired, and the employee continues to work further. And neither he nor the employer demanded to stop it. If this happened, it is necessary to extend the fixed-term employment contract under the Labor Code of the Russian Federation. Issue an additional agreement and order. This is confirmed by Rostrud in a letter dated November 20, 2006 No. 1904-6-1.

Additional agreement.

The term of a fixed-term employment contract under the Labor Code of the Russian Federation is a prerequisite under Article 57 of the Labor Code of the Russian Federation. To change it to perpetual, enclose . Include an indefinite term clause in it, as in the example below. Specify the date from which the additional agreement will take effect.

How labor inspectors fine for violating article 59 of the Labor Code of the Russian Federation “Fixed-term employment contract”

If you entered into an agreement without sufficient grounds, you and the company will be fined under Article 5.27 of the Code of Administrative Offenses of the Russian Federation. For violation of article 59 of the Labor Code of the Russian Federation “Fixed-term employment contract”, the company faces a fine. From the minimum amount of 50,000 rubles. up to the maximum - 100,000 rubles. (part 4 of article 5. 27 of the Code of Administrative Offenses of the Russian Federation). The fine for an official will be from 10,000 to 20,000 rubles.

For a repeated violation of Article 59 of the Labor Code of the Russian Federation “Terminal employment contract”, the punishment is stricter. The company will be fined from 100,000 to 200,000 rubles, and an official may even be disqualified (part 5 of article 5. 27 of the Code of Administrative Offenses of the Russian Federation).

Labor Code of the Russian Federation:

Article 59 of the Labor Code of the Russian Federation. Fixed-term employment contract

If a fixed-term employment contract was concluded for the performance of certain work in cases where its completion cannot be determined by a specific date (paragraph eight of part one of Article 59 of the Labor Code of the Russian Federation), such an agreement, by virtue of part two of Article 79 of the Code, is terminated upon completion of this work.

The consequences of the repeated conclusion of fixed-term employment contracts

When establishing during the trial the fact of the repeated conclusion of fixed-term employment contracts for a short period to perform the same labor function, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period.

Positions of the Constitutional Court of the Russian Federation on a fixed-term employment contract

Paragraph 6 of Part 2 of Art. 59 of the Labor Code of the Russian Federation on the conclusion of a fixed-term employment contract with persons elected by competition does not contradict the Constitution

Paragraph six of the second part of Article 59 of the Labor Code of the Russian Federation, providing for the possibility of concluding a fixed-term employment contract with persons elected by competition for the corresponding position by agreement of the parties, provides the parties to the employment contract with freedom of choice in determining its type.

This regulatory provision, in conjunction with parts one and two of Article 332 of the said Code (both in the version before the entry into force of the Federal Law of December 22, 2014 N 443-FZ, and in the current version) is aimed at taking into account the peculiarities of the labor activity of persons elected by competition, and does not imply an arbitrary establishment of the term of an employment contract with certain categories of pedagogical workers.

Such legal regulation equally applies to all teaching staff belonging to the teaching staff, and cannot be regarded as violating the rights of the applicant (determination of the Constitutional Court of the Russian Federation of 06.23.2015 N 1240-O)

Paragraph 3 of Part 2 of Art. 59 of the Labor Code of the Russian Federation on the conclusion of a fixed-term agreement with pensioners does not contradict the Constitution

As the Constitutional Court of the Russian Federation pointed out in Ruling No. 378-O-P of May 15, 2007, the normative provision of the third paragraph of the second part of Article 59 of the Labor Code of the Russian Federation, providing that a fixed-term employment contract with old-age pensioners can be concluded by agreement of the parties, provides the parties with a labor of the contract freedom of choice in determining its type: by mutual agreement, the contract can be concluded both for a fixed and for an indefinite period.

Since a fixed-term employment contract is concluded on the basis of the voluntary consent of the employee and the employer, in the case when the consent to the conclusion of the contract was given by the employee involuntarily, he has the right to challenge the legality of concluding a fixed-term employment contract with him in a court of general jurisdiction. If the court, on the basis of an examination and assessment of all the actual circumstances of the case, establishes that the consent of the employee to conclude such an agreement is not voluntary, the court applies the rules of the agreement concluded for an indefinite period.

Thus, the contested provision cannot be considered as violating the applicant's rights (Ruling of the Constitutional Court of the Russian Federation of December 24, 2013 N 1911-O).

Employment contract with a pensioner, forced consent

Checking the provisions of Article 59 of the Labor Code of the Russian Federation for their compliance with the Constitution of the Russian Federation, the Constitutional Court of the Russian Federation in the ruling of the Constitutional Court of the Russian Federation of May 15, 2007 N 378-O-P expressed a number of the following legal positions:

The employer does not have the right to reissue an employment contract already concluded with a pensioner (for an indefinite period) for a fixed-term employment contract

The conclusion of a fixed-term employment contract with pensioners by age may take place without taking into account the nature of the work to be done or the conditions for its implementation. At the same time, the establishment of labor relations for a certain period without taking into account the nature of the work and the conditions for its implementation is allowed only with those pensioners who go to work. The law does not give the employer the right to reissue an employment contract concluded with an employee for an indefinite period to a fixed-term employment contract (as well as to terminate the employment contract) in connection with the achievement of retirement age by this employee and the assignment of a pension to him.

Retirement age is not a sufficient basis for concluding a fixed-term employment contract. A pensioner is a citizen who has been assigned a pension!

The applicant, substantiating his position on the inconsistency of the contested provision of Article 59 of the Labor Code of the Russian Federation with the Constitution of the Russian Federation, in particular, the requirements arising from its Articles 19 (parts 1 and 2) and 55, proceeds from the fact that this legal provision provides the employer with the opportunity to conclude an urgent employment contract solely because of reaching retirement age. Meanwhile, according to its meaning, the retirement age of a citizen as such is not a sufficient basis for concluding an employment contract with him for a certain period. Old-age pensioners include only those persons who have reached retirement age, who, in accordance with the pension legislation, have been assigned an old-age (old-age) pension. A citizen who has reached the age required for granting a pension, but who has not acquired the right to it, or whose pension has not been assigned due to other circumstances, cannot be considered a pensioner and, therefore, is not among the persons with whom a fixed-term employment contract can be concluded on the basis of paragraph three of part two of Article 59 of the Labor Code of the Russian Federation.

The conclusion of a fixed-term employment contract with a pensioner does not limit the freedom of work

The normative provision of the third paragraph of the second part of Article 59 of the Labor Code of the Russian Federation, which allows the conclusion of a fixed-term employment contract with pensioners by age in the absence of objective reasons requiring the establishment of labor relations for a certain period, does not limit, contrary to the applicant's assertion, freedom of labor, their right to freely dispose of their abilities to work, choose the type of activity and profession, enshrined in Article 37 (part 1) of the Constitution of the Russian Federation. Providing that a fixed-term employment contract with old-age pensioners can be concluded by agreement of the parties, it provides the parties to the employment contract with freedom of choice in determining its type: by mutual agreement, the contract can be concluded both for a fixed and for an indefinite period.

The forced consent of the employee to conclude a fixed-term contract is the basis for recognizing the contract as concluded for an indefinite period

Since a fixed-term employment contract is concluded by agreement of the parties, i.e. on the basis of the voluntary consent of the employee and the employer, in the case when the consent to the conclusion of the contract was given by the employee involuntarily, he has the right to challenge the legality of concluding a fixed-term employment contract with him in a court of general jurisdiction. If the court, on the basis of an examination and assessment of all the actual circumstances of the case, establishes that the consent of the employee to conclude such an agreement is not voluntary, the court applies the rules of the agreement concluded for an indefinite period.

The fact of the repeated conclusion of fixed-term employment contracts is the basis for the recognition by the court of an employment contract concluded for an indefinite period

When establishing during the trial the fact of the repeated conclusion of fixed-term employment contracts for a short period to perform the same labor function, the court has the right, taking into account the circumstances of a particular case, to recognize the employment contract as concluded for an indefinite period (paragraphs 13 and 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17 2004 N 2). The court of general jurisdiction considering such a labor dispute must also verify that the employer complies with the prohibition established by part six of Article 58 of the Labor Code of the Russian Federation on concluding fixed-term employment contracts in order to evade granting the rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.

Thus, the normative provision of the third paragraph of the second part of Article 59 of the Labor Code of the Russian Federation cannot be regarded as violating the equality of citizens in exercising their right to work and, therefore, there are no grounds for accepting the request of the Amur City Court of the Khabarovsk Territory for consideration.

The first one boils down to the question of what could be the consequences of the fact that in the text of the employment contract as a written document there is no indication of the urgent nature of the employment contract. If we approach this problem strictly formally, then we should come to the conclusion that in this case the employment contract should be considered concluded for an indefinite period (part 3 of article 58 of the Labor Code of the Russian Federation). However, it cannot be ignored that in the case under consideration, the employment contract is by its nature urgent and, therefore, cannot exist after the expiration of the circumstance that led to the conclusion of the contract. It seems that in this case, one should proceed from the agreement of the parties regarding the urgent nature of the employment contract, even if this agreement was not reached directly, but indirectly, in the form of default.

Article 59. Fixed-term employment contract

If an employee does not have the necessary conditions for the appointment of a pension, even if the employee has reached retirement age, an employment contract is concluded with such an employee on general terms.

Old-age pensioners also include persons who have been granted a pension on preferential terms (due to harmful and difficult working conditions).

Thus, one of the parties to the employment contract is a person who has acquired the status of a pensioner, i.e.

has reached retirement age and is entitled to an old-age pension. Part 2 of this rule applies to persons who, for health reasons, are allowed to work on a temporary basis.

Attention

The state of health and the duration of work must be established by a medical report (for example, institutions of medical and social expertise, clinical expert commissions).

Article 59 of the Labor Code of the Russian Federation. fixed-term employment contract

Thus, the presence of the initiative of the party (parties) of the employment contract was considered, along with the presence of a reason (reason) and an indication of the duration of the contract, as a prerequisite for concluding a fixed-term employment contract.

Info

However, in practice, such an indication was not always possible to implement.

Firstly, there are cases when the conclusion of a fixed-term contract is mandatory by virtue of a direct indication of the law.
Secondly, the urgent nature of the contract in a number of cases is dictated by circumstances of an objective nature, the presence of which simply excludes the possibility of concluding an employment contract for an indefinite period.

Article 59, as currently amended, takes this into account.

Accordingly, the entire list of reasons that may serve as grounds for concluding a fixed-term employment contract is divided into two parts.

An error occurred.

the Government of the Russian Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations; with heads, deputy heads and chief accountants of organizations, regardless of their organizational and legal forms and forms of ownership; with persons receiving full-time education; with crew members of seagoing vessels, inland navigation vessels and mixed (river-sea) navigation vessels registered in the Russian International Register of Vessels; with persons entering a part-time job; in other cases provided for by this Code or other federal laws.

Commentary on Article 59 of the Labor Code of the Russian Federation As mentioned above, the employment contract must also indicate the circumstances (reasons) that served as the basis for its conclusion.

Comments to Article 59 of the Labor Code of the Russian Federation

The term of the employment contract is stipulated by the agreement of the parties and cannot exceed that specified in the medical report.
A fixed-term employment contract is concluded with persons entering work in organizations (enterprises) located in the regions of the Far North and equivalent areas.

However, such an agreement can only be concluded with those persons who have moved to their place of work from other regions of Russia.

The list of regions of the Far North and areas equated to them was approved by the Decree of the Council of Ministers of the USSR of November 10, 1967 No. 1029 (as amended by
dated 01/03/1983). It should be borne in mind that with local residents, those who permanently reside in the regions of the Far North and equivalent areas, a fixed-term employment contract can be concluded only on the general grounds provided for in Article 58 of the Labor Code.

Article 59 of the Labor Code of the Russian Federation. fixed-term employment contract (current version)

This, in turn, implies the existence of an appropriate list of grounds, and, as one might assume, the list is very extensive. To some extent, this task is intended to be solved by Art. 59 of the Labor Code of the Russian Federation. So, the conclusion of a fixed-term employment contract is due to the presence of the grounds established in federal law.

It follows that one written request of the employee to conclude an agreement with him for a certain period, as is sometimes the case in practice, is not enough.

It is necessary that this request of the employee be justified by the reason specified in the federal law.

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A fixed-term employment contract is concluded with persons hired to perform a known work in cases where its performance (completion) cannot be determined by a specific date, which must indicate that it is concluded for the duration of a specific job (for example, drawing up a report , organization and conduct of elections, etc.).

The basis for termination of such an employment contract will be the end (completion) of the specified work.

A fixed-term employment contract is concluded for the performance of work directly related to the internship and vocational training of the employee.

The term of the contract in such cases is determined by the term of the internship or the term of vocational training.

There are no internship terms in the legislation, they are determined by agreement of the parties to the contract based on the specialty in which the internship takes place and the level of knowledge of the trainees.

The first group of reasons objectively determines the urgent nature of the employment contract, regardless of the discretion of the parties.

This conclusion is confirmed by the very wording of Part 1 of Art.

59 of the Labor Code, according to which "a fixed-term employment contract is concluded ...". If there are reasons related to the second group, an employment contract may be concluded by agreement of the parties. In general, the list of grounds that determine the need or possibility of concluding a fixed-term employment contract has two features. On the one hand, in the wording of Art. 59 it is open. On the other hand, the list is supplemented exclusively by the state, and at a level not lower than the federal law.

In this sense, the list is closed, since it cannot be supplemented in the manner of either collective contractual or individual contractual regulation.

Paragraph 2 of Part 1 of Article 59 of the Labor Code of the Russian Federation

Fixed-term employment contracts are concluded with employees recruited to work in diplomatic missions and consular offices of the Russian Federation, as well as with employees sent to representative offices of federal executive authorities and state institutions of the Russian Federation abroad.

For example, an employment contract is concluded with employees of diplomatic missions and consular offices for a period of up to three years.

The term of an employment contract with employees of representative offices of federal executive bodies and state institutions abroad is determined by agreement of the parties on the basis of protocols concluded by the relevant bodies and institutions with the Russian Foreign Ministry.

Paragraph 2 part 1 article 59 nr rf

Federal Law of 02.07.2013 N 185-FZ) (see the text in the previous edition) in cases of election for a certain period to an elected body or to an elective position for paid work, as well as admission to work related to the direct support of the activities of members of the elected bodies or officials in public authorities and local governments, in political parties and other public associations; with persons sent by the bodies of the employment service to work of a temporary nature and public works; with citizens sent for alternative civilian service; in other cases provided for by this Code or other federal laws.

Paragraph 2 part 1 article 59 of the Labor Code of the Russian Federation

A fixed-term employment contract is concluded with persons elected for a certain period to an elected body or to an elective position for paid work.

For example, for the position of dean of a faculty or head of a department of a higher educational institution. A fixed-term employment contract is also concluded when applying for a job related to the direct support of the activities of members of elected bodies or officials in state authorities, local governments, as well as in political parties and other public associations.

New edition Art. 59 Labor Code of the Russian Federation

A fixed-term employment contract is:

for the duration of the performance of the duties of an 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) works;

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

with persons sent to work abroad;

for work that goes beyond the normal 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 entering work in organizations created for a predetermined period or to perform a predetermined job;

with persons hired to perform a known work in cases where its completion cannot be determined by a specific date;

to perform work directly related to practice, vocational training or additional professional education in the form of an internship;

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

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

with pensioners entering work by age, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;

with persons entering work in organizations located in the regions of the Far North and areas equivalent to them, if this is associated with moving to the place of work;

to carry out urgent work to prevent catastrophes, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;

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

with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers approved by the Government of the Russian Federation Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations;

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

with persons receiving full-time education;

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

with persons entering a part-time job;

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

Commentary on Article 59 of the Labor Code of the Russian Federation

As mentioned above, the employment contract must also indicate the circumstances (reasons) that served as the basis for its conclusion. In this regard, we note again that the current version of Article 59 of the Labor Code of the Russian Federation contains a list of situations in accordance with which a fixed-term employment contract must or can be concluded.

We emphasize that an employment contract concluded for a fixed period in the absence of sufficient grounds established by the court is considered concluded for an indefinite period.

The conclusion of 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 is prohibited. The circumstances under which a fixed-term employment contract can now be concluded by agreement of its parties are set out in part two of Article 59 of the Labor Code of the Russian Federation. Upon expiration, a fixed-term employment contract may be:

terminated in the manner and on the grounds provided for by law, including early (both at the initiative of the employee and at the initiative of the employer);

by agreement of the parties extended for a new period (as a fixed-term contract).

However, if after the expiration of the term of the fixed-term employment contract, none of the parties demanded its termination and the employee continues to perform the assigned work, then the condition on the urgent nature of this employment contract becomes invalid and the latter is further considered concluded for an indefinite period.

Another commentary on Art. 59 of the Labor Code of the Russian Federation

1. Article 59 of the Labor Code of the Russian Federation in its previous edition proceeded from the fact that a fixed-term employment contract could be concluded at the initiative of the employer or employee. Thus, the presence of the initiative of the party (parties) of the employment contract was considered, along with the presence of a reason (reason) and an indication of the duration of the contract, as a prerequisite for concluding a fixed-term employment contract. However, in practice, such an indication was not always possible to implement. Firstly, there are cases when the conclusion of a fixed-term contract is mandatory by virtue of a direct indication of the law. Secondly, the urgent nature of the contract in a number of cases is dictated by circumstances of an objective nature, the presence of which simply excludes the possibility of concluding an employment contract for an indefinite period.

Article 59, as currently amended, takes this into account. Accordingly, the entire list of reasons that may serve as grounds for concluding a fixed-term employment contract is divided into two parts. The first group of reasons objectively determines the urgent nature of the employment contract, regardless of the discretion of the parties. This conclusion is confirmed by the very wording of Part 1 of Art. 59 of the Labor Code, according to which "a fixed-term employment contract is concluded ...". If there are reasons related to the second group, an employment contract may be concluded by agreement of the parties.

In general, the list of grounds that determine the need or possibility of concluding a fixed-term employment contract has two features. On the one hand, in the wording of Art. 59 it is open. On the other hand, the list is supplemented exclusively by the state, and at a level not lower than the federal law. In this sense, the list is closed, since it cannot be supplemented in the manner of either collective contractual or individual contractual regulation. In other words, no one except the state, and at the level of federal law, has the right to recognize this or that circumstance as a good reason for concluding a fixed-term contract.

In this regard, the Code differs significantly from the previous labor legislation, which treated the question of the validity of the reason for concluding a fixed-term employment contract as a matter of fact, i.e. as a fact subject to a comprehensive assessment, taking into account all specific circumstances. This approach is justified, since it is possible to judge with full certainty the solidity of the reason for concluding a contract only after examining all the circumstances. The legislator has significantly changed the approach to solving this issue: the reason that is the basis for concluding a fixed-term employment contract is now legally formalized, and at the level of federal law. This, in turn, implies the existence of an appropriate list of grounds, and, as one might assume, the list is very extensive. To some extent, this task is intended to be solved by Art. 59 of the Labor Code of the Russian Federation.

So, the conclusion of a fixed-term employment contract is due to the presence of the grounds established in federal law. It follows that one written request of the employee to conclude an agreement with him for a certain period, as is sometimes the case in practice, is not enough. It is necessary that this request of the employee be justified by the reason specified in the federal law.

2. All the grounds for concluding a fixed-term employment contract can be combined into at least three groups, determined by: a) the characteristics of the personality (legal status) of the employee or employer; b) limited time due to certain circumstances of the labor activity for which the employee is involved; c) the place of employment of the employee.

3. Part 1 of Art. 59 establishes a list of circumstances under which a fixed-term employment contract must be concluded. In other words, the conclusion of a fixed-term employment contract is determined not by the discretion (initiative) of the parties, but by the presence of objective circumstances that do not depend on their will.

This provision of the law raises at least two problems.

The first one boils down to the question of what could be the consequences of the fact that in the text of the employment contract as a written document there is no indication of the urgent nature of the employment contract. If we approach this problem strictly formally, then we should come to the conclusion that in this case the employment contract should be considered concluded for an indefinite period (part 3 of article 58 of the Labor Code of the Russian Federation). However, it cannot be ignored that in the case under consideration, the employment contract is by its nature urgent and, therefore, cannot exist after the expiration of the circumstance that led to the conclusion of the contract. It seems that in this case, one should proceed from the agreement of the parties regarding the urgent nature of the employment contract, even if this agreement was not reached directly, but indirectly, in the form of default. Accordingly, at the end of the circumstances that served as the basis for the conclusion of a fixed-term employment contract, it is subject to termination in the manner prescribed by Art. 79 of the Labor Code of the Russian Federation.

The second problem comes down to determining the period for which an employment contract is concluded in the presence of the circumstances specified in Part 1 of Art. 59 of the Labor Code of the Russian Federation. As already noted, the legislator, when formulating a list of such circumstances, proceeds from the fact that they objectively dictate the urgent nature of the employment contract, regardless of the will of its parties. If this is the case, then it should be concluded that the term of the employment contract is determined objectively and is limited by the time of existence of the relevant circumstance. In other words, when concluding a fixed-term employment contract in accordance with Part 1 of Art. 59 of the Labor Code of the Russian Federation, the contract must be concluded according to the general rule for the entire period of existence of the circumstance that objectively led to the conclusion of a fixed-term employment contract, but not more than for the deadline established by law. For a period of lesser duration than the effect of the circumstance that led to the conclusion of a fixed-term employment contract, the contract may be concluded only at the motivated request of the employee.

4. Part 2 of Art. 59 of the Labor Code of the Russian Federation formulates a circle of circumstances in the presence of which a fixed-term employment contract may be concluded by agreement of the parties. This wording of the legislator means that a fixed-term employment contract is concluded only if there is the will of the parties. Accordingly, the parties in this case have the right to conclude both a contract for an indefinite period and an urgent one, and in the latter case they have the right to establish any period of validity of the employment contract within the maximum period established by law. The text of the employment contract as a written document should indicate the type of employment contract, the reason that led to the conclusion of a fixed-term employment contract and its validity period (indicating a specific date or circumstances, the occurrence of which determines the termination of the employment contract). Failure to comply with these requirements is fraught in the event of a dispute with the recognition of an employment contract concluded for an indefinite period.

In this regard, the Supreme Court of the Russian Federation reasonably indicates that in accordance with Part 2 of Art. 58 of the Labor Code of the Russian Federation in cases provided for by Part 2 of Art. 59 of the Code, a fixed-term employment contract may be concluded without taking into account the nature of the work to be done and the conditions for its implementation. At the same time, it must be borne in mind that such an agreement can be recognized as lawful if there was an agreement between the parties, i.e. if it is concluded on the basis of the voluntary consent of the employee and the employer. Accordingly, if the court, when resolving a dispute on the legality of concluding a fixed-term employment contract, establishes that it was concluded by the employee involuntarily, the court applies the rules of the contract concluded for an indefinite period (parts 2 - 3, clause 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17 2004 N 2).

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Official text:

Article 59. Fixed-term employment contract

A fixed-term employment contract is:

for the duration of the performance of the duties of an 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) works;

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

with persons sent to work abroad;

for work that goes beyond the normal 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 entering work in organizations created for a predetermined period or to perform a predetermined job;

with persons hired to perform a known work in cases where its completion cannot be determined by a specific date;

to perform work directly related to practice, vocational training or additional professional education in the form of an internship;

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

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

with pensioners entering work by age, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;

with persons entering work in organizations located in the regions of the Far North and areas equivalent to them, if this is associated with moving to the place of work;

to carry out urgent work to prevent catastrophes, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;

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

with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers approved by the Government of the Russian Federation Federation, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations;

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

with persons receiving full-time education;

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

with persons entering a part-time job;

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

Lawyer's comment:

In the previous version of Article 59, cases were listed in one row when a fixed-term employment contract must be concluded either due to objective obligations or due to the requirements of the law, as well as cases when a fixed-term employment contract can be concluded at the initiative of one of the parties. The new edition of this article divides these cases into two independent groups. Part 1 of Article 59 lists cases when the conclusion of a fixed-term employment contract is mandatory, since the employment contracts listed in this part of the article cannot be otherwise (as soon as urgent). A fixed-term employment contract is concluded for the duration of the performance of the duties of an absent employee. Such an agreement is concluded when a job is retained for an absent employee (for example, while the employee is on parental leave or while the employee is on a long business trip, as well as in other cases provided for by labor legislation). The term of the employment contract in these cases is determined by the time of absence of the employee, who, according to the law, retains the place of work. The return date of the absent worker is the end date of the fixed-term employment contract.

A fixed-term employment contract is concluded for the duration of temporary (up to two months) work. The conclusion of such an agreement is possible provided that the work is obviously temporary in nature and cannot exceed a two-month period. The specific term of the contract in this case is established by agreement of the parties. If the work is permanent, then the conclusion of a fixed-term employment contract for a period of up to two months is illegal. For the performance of seasonal work, a fixed-term employment contract is also concluded. Seasonal work is recognized as work that, due to climatic and other natural conditions, is performed during a certain period of time (season), which, as a rule, does not exceed six months. The lists of seasonal work, including individual seasonal work, which can be carried out during a period (season) exceeding six months, and the maximum duration of these individual seasonal work are determined by sectoral (intersectoral) agreements concluded at the federal level of social partnership.

A fixed-term employment contract is concluded with persons sent to work abroad. Fixed-term employment contracts are concluded with employees recruited to work in diplomatic missions and consular offices of the Russian Federation, as well as with employees sent to representative offices of federal executive authorities and state institutions of the Russian Federation abroad. For example, an employment contract is concluded with employees of diplomatic missions and consular offices for a period of up to three years. The term of an employment contract with employees of representative offices of federal executive bodies and state institutions abroad is determined by agreement of the parties on the basis of protocols concluded by the relevant bodies and institutions with the Russian Foreign Ministry. For work that goes beyond the normal activities of the organization (reconstruction, installation, commissioning and other work), as well as for work associated with a deliberately temporary (up to one year) expansion of production or the volume of services provided, a fixed-term employment contract is concluded.

This rule assumes two grounds for concluding a fixed-term employment contract:

1) to perform work that goes beyond the normal activities of the organization. The ordinary activity of the organization is determined by its organizational and registration documents. As an example, the legislator names such types of work as reconstruction, installation and commissioning. However, the list of such works is open, since the specified norm also refers to other works. When concluding such an agreement, the law does not define its deadline, therefore, as a general rule, it should not exceed five years;

2) to carry out work associated with a deliberately temporary (up to one year) expansion of production or the volume of services provided. Unlike the previously considered case, these works are carried out as part of the normal activities of the organization and it is known that the need for them will continue for more than one year.

A fixed-term employment contract is concluded with persons entering work in organizations created for a predetermined period of time or to perform a predetermined job. In the constituent documents of such an organization, it must be written that it was created to perform certain work and for a certain period of time (for example, the directorate for holding anniversary events, exhibitions, competitions, etc.). The term of an employment contract with persons entering work in such organizations cannot exceed the term stipulated by the constituent documents of this organization, however, most likely, the term of such an employment contract may be less than the term of the organization’s activities due to the fact that the involvement of certain specialists is determined by the types (nature), as well as schedules (plans) of the work performed. The termination of the employment contract with the specified employees on the basis of the expiration of the term of the employment contract can be carried out if the organization really terminates its activities due to the expiration of the period for which it was created, or the achievement of the purpose for which it was created, without transferring rights and obligations to succession to other persons ().

If a fixed-term employment contract was concluded for the performance of certain work in cases where its completion cannot be determined by a specific date, such an agreement, by virtue of Article 79(2) of the Labor Code, terminates upon completion of this work. When establishing in the course of the trial the multiple conclusion of fixed-term employment contracts for a short period to perform the same labor function, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period . A fixed-term employment contract is concluded with persons hired to perform a known work in cases where its performance (completion) cannot be determined by a specific date, which must indicate that it is concluded for the duration of a specific job (for example, drawing up a report , organization and conduct of elections, etc.). The basis for termination of such an employment contract will be the end (completion) of the specified work.

A fixed-term employment contract is concluded for the performance of work directly related to the internship and vocational training of the employee. The term of the contract in such cases is determined by the term of the internship or the term of vocational training. There are no internship terms in the legislation, they are determined by agreement of the parties to the contract based on the specialty in which the internship takes place and the level of knowledge of the trainees. A fixed-term employment contract is concluded with persons elected for a certain period to an elected body or to an elective position for paid work. For example, for the position of dean of a faculty or head of a department of a higher educational institution. A fixed-term employment contract is also concluded when applying for a job related to the direct support of the activities of members of elected bodies or officials in state authorities, local governments, as well as in political parties and other public associations. The law provides for the conclusion of a fixed-term employment contract for the performance of work that is directly aimed at ensuring the activities of an elected body or officials (for example, an assistant to a deputy, an adviser to the chairman (his deputies) of a legislative (representative) body, an adviser to the governor, an assistant to the chairman of a party, etc.). ).

It should be noted that in accordance with the Federal Law of July 27, 2004 No. 79-FZ "On the State Civil Service of the Russian Federation" (as amended on December 6, 2011), with persons holding positions established to assist persons holding public positions, heads of state bodies, heads of territorial bodies of federal executive bodies and heads of representative offices of state bodies in the exercise of their powers, a fixed-term service contract is concluded, the conditions, content, procedure for concluding and terminating which are regulated by this Law. At the same time, it should be borne in mind that the effect of labor legislation and other acts containing labor law norms applies to state civil servants and municipal employees with the features provided for by federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of the constituent entities of the Russian Federation on state civil service and municipal service. A fixed-term employment contract is concluded with persons sent by the bodies of the employment service for temporary work and public works. The term of the contract in such cases is determined by the agreement of the parties. In accordance with Article 24 of the Law of the Russian Federation "On Employment in the Russian Federation", a fixed-term employment contract for up to six months is concluded with persons wishing to participate in public works.

According to Article 6 of the Federal Law of July 25, 2002 No. IZ-FZ "On Alternative Civil Service" (as amended on November 30, 2011), a fixed-term employment contract is concluded with citizens undergoing alternative service for the period of service. The term of the contract is established by paragraphs 1 and 2 of Article 16 of the Law. It should be borne in mind that part 1 of article 59 provides, in addition to the listed cases, other cases defined by the Labor Code or other federal laws. For example, heads of consumer cooperative organizations created by consumer societies and (or) unions are appointed to positions for up to five years. Unlike part 1 of article 59, part 2 provides for cases when, by agreement of the parties, a fixed-term employment contract may be concluded. Both the employee and the employer can initiate the conclusion of such an agreement. Thus, in the cases listed below, it is possible to conclude an employment contract both for a fixed period and for an indefinite one. The conclusion of such contracts does not depend on the nature of the work to be done or the conditions for its implementation, i.e. the requirements of Article 58 of the Labor Code do not apply. However, it must be borne in mind that such an employment contract is concluded only by mutual agreement between the employee and the employer.

If the court, when resolving a dispute on the legality of concluding a fixed-term contract, establishes that it was concluded by the employee involuntarily, the court applies the rules of the contract concluded for an indefinite period (paragraph 13 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2). The criteria that allow the conclusion of a fixed-term employment contract with employers - small businesses have been changed. The right to conclude fixed-term employment contracts remains only with employers with up to 35 employees, and in retail trade and consumer services organizations - up to 20 people. The concept of small businesses is contained in the Federal Law of July 24, 2007 No. 209-FZ "On the Development of Small and Medium-Sized Businesses in the Russian Federation" (as amended on December 6, 2011). Such an agreement may be concluded for a period not exceeding five years. A fixed-term employment contract may be concluded with old-age pensioners entering work. The new version of Article 59 clarifies that the conclusion of a fixed-term employment contract applies only to pensioners by age, i.e. for persons who have already been assigned a pension, taking into account age and length of service. If an employee does not have the necessary conditions for the appointment of a pension, even if the employee has reached retirement age, an employment contract is concluded with such an employee on general terms. Old-age pensioners also include persons who have been granted a pension on preferential terms (due to harmful and difficult working conditions).

Thus, one of the parties to the employment contract is a person who has acquired the status of a pensioner, i.e. has reached retirement age and is entitled to an old-age pension. Part 2 of this rule applies to persons who, for health reasons, are allowed to work on a temporary basis. The state of health and the duration of work must be established by a medical report (for example, institutions of medical and social expertise, clinical expert commissions). The term of the employment contract is stipulated by the agreement of the parties and cannot exceed that specified in the medical report. A fixed-term employment contract is concluded with persons entering work in organizations (enterprises) located in the regions of the Far North and equivalent areas. However, such an agreement can only be concluded with those persons who have moved to their place of work from other regions of Russia. The list of regions of the Far North and areas equated to them was approved by the Decree of the Council of Ministers of the USSR of November 10, 1967 No. 1029 (as amended on January 3, 1983). It should be borne in mind that with local residents, those who permanently reside in the regions of the Far North and equivalent areas, a fixed-term employment contract can be concluded only on the general basis provided for in Article 58 of the Labor Code. However, it must be borne in mind that the conclusion of a fixed-term employment contract can be considered reasonable if the work is temporary due to certain circumstances.

To carry out urgent work to prevent accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances (earthquakes, fires, floods, etc.), a fixed-term employment contract is also concluded. The term of the employment contract is determined by the agreement of the parties, since neither the minimum nor the maximum terms of such an agreement are determined by law. It seems that the term of the employment contract in these cases may be determined by the deadline for the completion of work to eliminate the circumstances specified in this rule (for example, the completion of work to eliminate an accident, catastrophe, earthquake, etc.). A fixed-term employment contract may be concluded with persons elected by competition to fill the relevant position; with scientific, pedagogical and other employees based on the results of a competition held in the manner prescribed by law (or other regulatory act). The basis for concluding a fixed-term employment contract with these categories of employees is the fact that this person has passed the competition. On the basis of the competition, positions of researchers, heads of laboratories, departments, sectors in research institutions are filled (). A fixed-term employment contract may be concluded with creative workers of the media, cinematography organizations, theaters, theater and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works.

The list of these professions, in accordance with which fixed-term employment contracts are concluded, was approved by Decree of the Government of the Russian Federation of April 28, 2007 No. 252, taking into account the opinion of the Russian tripartite commission for the regulation of social and labor relations. A fixed-term employment contract is concluded with managers, their deputies and chief accountants of organizations, regardless of their organizational and legal forms and forms of ownership. A fixed-term employment contract with full-time students can be concluded not only with students, but also with graduate students, and not only for the period of their holidays, but also for other periods of time. However, it should be borne in mind that the work they perform should not interfere with the educational process. Since the legislator has not determined the term of the employment contract with full-time students (postgraduates), it is established on a general basis (but not more than five years) or the term of the contract may be determined by the term of study (but not more than five years). When concluding a fixed-term employment contract with full-time students, the employer, in addition to the documents provided for by the Labor Code, may require a certificate confirming the fact of the student's (graduate student's) full-time education.

A fixed-term employment contract may be concluded with persons who have entered a part-time job. Part-time work can be performed by an employee both at the place of his main job (internal part-time job) and for other employers (external part-time job). Part-time work is allowed only in free time from the main job. Other cases when it is possible to conclude fixed-term employment contracts, in addition to those contained in Part 2 of Article 59, may be provided for by the Labor Code and other federal laws.