Fixed-term employment contract article TC. With whom and according to what rules does the employer enter into a fixed-term employment contract?

Commentary on Article 59

1. Article 59 is set out in new edition. Unlike the previous one, it contains two parts, each of which provides various types work (cases) for which an urgent contract is concluded with the employee employment contract.

Lists of works (cases) provided for in both Part 1 and Part 2 of Art. 59 are not exhaustive. The Labor Code or other federal laws may provide for other cases when the conclusion of a fixed-term employment contract is either mandatory by law or permitted by agreement of the parties to the employment contract. Since in Art. 59 we are talking about the Labor Code or other federal law, nor the law of the subject Russian Federation, neither the decree of the President of the Russian Federation, nor the resolution of the Government of the Russian Federation, nor any other by-law normative legal act can establish any additional grounds (cases) for concluding a fixed-term employment contract.

2. Cases (types of work) listed in Part 1 of Art. 59, correspond to the general criterion for concluding a fixed-term employment contract, formulated in Part 2 of Art. 58 TK. That is, all the cases listed in it determine the urgent nature of the labor relationship.

In this regard, the conclusion of a fixed-term employment contract in those listed in Part 1 of Art. In 59 cases it is mandatory. The wording of the commented norm does not imply a different solution, since in all these cases, based on the nature of the work to be done or the conditions for its implementation, labor relations cannot be established for an indefinite period. It should be noted that the previous version of Art. 59 gave the parties to the employment contract the right to choose in determining its type. That is, in all cases provided for in it, both a fixed-term employment contract and an employment contract with an indefinite period could be concluded.

Part 1 art. 59 names 11 specific cases when a fixed-term employment contract is concluded with an employee.

These include:

1) for the duration of the duties of a temporarily absent employee. Such an employment contract is concluded when the absent employee, in accordance with labor legislation and other regulatory legal acts, containing norms labor law, collective agreement, agreements, local regulations, the employment contract preserves the place of work (for example, while the employee is on a long business trip, on parental leave). The term of the employment contract in this case depends on the time of the absent employee’s return to perform his labor (official) duties. Since the law speaks of the temporary absence of an employee whose place of work (position) is retained, a fixed-term employment contract cannot be concluded to perform the duties of a vacant position until another permanent employee is hired for this position;

2) to perform temporary (up to 2 months) work, as well as seasonal work, when due to natural conditions work can only be carried out during a certain period (season), not exceeding, as a rule, 6 months (see commentary to Article 293).

Concluding a fixed-term employment contract for a period of up to 2 months is possible provided that the work is obviously temporary in nature, i.e. it is known in advance that it will last no more than 2 months (for example, during preparation annual report). In this case, the contract by agreement of the parties must determine the specific term of the employment contract within 2 months (3 weeks, 1 month, 1.5 months, etc.).

It will be unlawful to conclude a fixed-term employment contract for a period of up to 2 months to perform work that is permanent for the employer.

Concluding a fixed-term employment contract to perform seasonal work is permitted provided that this work is provided for in a special list of seasonal work. Lists of seasonal work, including individual seasonal work, which can be carried out during a period (season) exceeding 6 months, and maximum duration specified individual seasonal work is determined by industry (inter-industry) agreements concluded at federal level social partnership(Part 2 of Article 293, see commentary to it).

Concluding a fixed-term employment contract for a specific season to perform work not covered by the above list will be considered unlawful;

3) with persons sent to work abroad. It does not matter to which organization abroad the employee is sent. These may be diplomatic missions and consular offices of the Russian Federation abroad, as well as representative offices of federal executive authorities and government agencies Russian Federation, commercial organizations, scientific and educational institutions etc.;

4) to carry out work that goes beyond the normal activities of the employer, as well as to carry out work related to a deliberately temporary (up to 1 year) expansion of production or the volume of services provided.

Under the employer's normal activities in in this case it is necessary to understand such types of work that correspond to the main directions of the organization’s activities as enshrined in its charter.

As an example of work that goes beyond the normal activities of an organization, the law names reconstruction, installation, and commissioning work. Depending on the nature (type) of the organization’s normal activities, this may include other work, such as repairs and construction. However, in all cases, work that goes beyond the normal (core) activities of the organization, for which fixed-term employment contracts can be concluded, must be temporary (urgent) in nature. Since the law does not establish any special deadline for which such an employment contract can be concluded, the term of the employment contract is determined in each specific case by agreement of the parties based on specific circumstances and the period of time during which there remains a need to perform work beyond outside the normal activities of the organization. Here the general rules on the maximum term of the employment contract established by Art. 58 Labor Code, i.e. 5 years.

Unlike an employment contract concluded to carry out work outside the scope of the employer’s normal activities, the term of an employment contract concluded in connection with the need to temporarily expand production or the volume of services provided is limited. It cannot exceed one year. This is due to the fact that work under such an agreement is carried out as part of the organization’s normal activities and the need to expand production or the volume of services provided is limited to certain time limits, known to the employer.

The specific validity period of an employment contract for the performance of work related to a deliberately temporary expansion of production or the volume of services provided is determined within one year by agreement of the parties. For example, due to the increase in the number of tourists in summer time and, in connection with this, expanding the volume of services provided to hotels, cafes, restaurants, transport organizations and others can hire an additional number of workers by concluding employment contracts with them for a certain period (1, 2, 3 months, etc.);

5) with persons entering work in organizations created for a predetermined period of time or to perform a predetermined job.

The fact that an organization was created for a certain period or only to perform a certain job must be recorded in the charter of this organization. The charter of the organization also defines the specific period of time for which it was created or during which the work will be completed, the implementation of which is the purpose of creating the organization (for example, for 2, 3, 4 years).

The term of an employment contract with persons entering an organization created for a predetermined period of time or to perform a predetermined job is determined by the period for which such an organization was created. Therefore, termination of an employment contract with these employees on the basis of expiration of the employment contract can be carried out if the organization actually ceases 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 transfer of rights and obligations in the order of succession to other persons (clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2);

6) with persons hired to perform obviously defined work in cases where its implementation (completion) cannot be determined by a specific date.

In these cases, the employment contract with employees must indicate that it is concluded for the duration of this particular work (for example, during the renovation of an office, during the construction of a facility). The completion (completion) of the specified work will be the basis for termination of the employment contract due to the expiration of its validity. However, it should be borne in mind that if during trial If the fact of multiple conclusions of fixed-term employment contracts for a short period of time to perform the same labor function is established, the court has the right, taking into account the circumstances of each case, to recognize the employment contract as concluded for an indefinite period (clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 );

7) to perform work directly related to the internship or vocational training employee. In this case, the employment contract is concluded for the period of internship or vocational training.

Internship or vocational training of employees in an organization can be carried out either on the basis of an agreement with another organization that sent its employee for an internship or vocational training, or on the basis of an apprenticeship agreement concluded by the organization with the student himself (see commentary to Article 198 - 208);

8) in case of election 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 higher education educational institution. According to Art. 332 of the Labor Code, these positions are filled on the basis of elections (see Art. 17, 332 of the Labor Code);

9) when applying for a job related to directly supporting the activities of members of elected bodies or officials in government bodies and bodies local government, V political parties and others public associations. In this case, we are talking about work related to directly supporting the activities of members of these bodies or officials. This means that not all persons applying for work in these elected bodies can be entered into a fixed-term employment contract. It's about on contracts concluded to perform such work, which is directly aimed at ensuring the activities of members of the relevant elected bodies or officials (for example, work as an assistant, secretary, adviser to the governor; assistant, assistant to the party chairman).

The term of the employment contract in these cases is established by agreement of the parties within the term of office of the relevant elected body or official.

Early termination of the powers of certain bodies or officials should entail the termination of employment contracts with persons hired to ensure the specified activities;

10) with persons sent by the employment service authorities to temporary work and public works. Such work is organized as additional social support citizens, job seekers. The term of the employment contract for such work is determined by agreement of the parties.

If the work to which a citizen is directed by the employment service is permanent, concluding a fixed-term employment contract with him is not allowed;

11) with citizens sent to perform alternative civil service. When concluding an employment contract with this category of citizens, it should be borne in mind that the status of citizens performing alternative civil service is established by Federal Law of July 25, 2002 No. 113-FZ “On Alternative Civil Service” (SZ RF. 2002. No. 30. Art. 3030) in accordance with the Constitution of the Russian Federation. Alternative civil service is special kind labor activity in the interests of society and the state, carried out by citizens in return military service on call. The procedure for sending citizens to alternative civil service is determined by the said Law, other federal laws, and the Regulations on the procedure for performing alternative civil service, approved. Decree of the Government of the Russian Federation of May 28, 2004 N 256 (SZ RF. 2004. N 23. Art. 2309), and other regulatory legal acts of the Russian Federation adopted in accordance with them.

The labor activity of citizens performing alternative civil service is regulated by the Labor Code, taking into account the features provided for by the specified Federal Law.

In accordance with Art. 5 of this Law, the period of alternative civil service is 42 months, and for citizens who have graduated from state, municipal or non-state educational institutions of higher professional education with state accreditation in the relevant areas of training (specialties) - 21 months. The term of alternative civil service for citizens serving in organizations of the Armed Forces of the Russian Federation, other troops, military formations and bodies is 36 months, and for citizens who have graduated from state, municipal or have state accreditation in the relevant areas of training (specialties) non-state educational institutions of higher professional education - 18 months.

In accordance with the specified deadlines, the term of the employment contract with citizens sent to perform alternative civil service is determined. When concluding an employment contract, the parties do not have the right to establish a different duration of its validity.

3. Unlike part 1 of the commented article, according to which the conclusion of an employment contract for a certain period due to the nature of the work to be done or the conditions for its implementation is mandatory, part 2 of the article provides a list of cases when the conclusion of a fixed-term employment contract is allowed by agreement of the parties . Moreover, by agreement of the parties, a fixed-term employment contract listed in Part 2 of Art. In 59 cases, it can be concluded without taking into account the nature of the work to be done or the conditions for its implementation. It must be borne in mind that such an agreement can be recognized as legal if there was an agreement between the parties, i.e. if it was concluded on the basis voluntary consent employee and employer. If the court, when resolving a dispute about 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.

According to Part 2 of the commented article, by agreement of the parties, a fixed-term employment contract can be concluded:

1) with persons entering work for employers - small businesses (including individual entrepreneurs), the number of employees does not exceed 35 people (in the field retail and consumer services - 20 people). It should be noted that in the previous edition these figures were 40 and 25 people, respectively.

The concept and types of small businesses are defined in Art. 3 of the Federal Law of June 14, 1995 N 88-FZ "On state support small business in the Russian Federation" (SZ RF. 1995. N 25. Art. 2343). In accordance with it, small business entities are understood as commercial organizations in whose authorized capital there is a share of participation of the Russian Federation, constituent entities of the Russian Federation, public and religious organizations ( associations), charitable and other funds does not exceed 25%, the share owned by one or more legal entities that are not small businesses does not exceed 25% and in which the average number of employees for the reporting period does not exceed the following maximum levels (small enterprises):

In industry - 100 people;

In construction - 100 people;

On transport - 100 people;

IN agriculture- 60 people;

In the scientific and technical field - 60 people;

In wholesale trade - 50 people;

In retail trade and consumer services - 30 people;

In other industries and when carrying out other types of activities - 50 people.

Small business entities also mean individuals engaged in entrepreneurial activity without education legal entity.

Small enterprises carrying out several types of activities (multi-industry) are classified as such according to the criteria of the type of activity whose share is the largest in the annual turnover or annual profit. The average number of employees of a small enterprise for the reporting period is determined taking into account all its employees, including those working under civil contracts and part-time, taking into account the actual time worked, as well as employees of representative offices, branches and others separate divisions the specified legal entity;

2) with age pensioners entering work, 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.

It is necessary to pay attention to what the law says about age pensioners entering work, i.e. about those who for the first time or again (after dismissal) enter into an employment contract with a given employer. In this regard, the employer has no right, including with the consent of the employee who is in an employment relationship with him and has reached retirement age, renew the employment contract concluded with this employee for an indefinite period into a fixed-term employment contract. It should be borne in mind that the number of old-age pensioners includes persons who have reached retirement age and who, in accordance with pension legislation, have been assigned an old-age pension. If a citizen has reached the age required to assign a pension, but in accordance with pension legislation has not acquired the right to it or the pension has not been assigned to him due to any other circumstances, he cannot be considered a pensioner and, therefore, the rules for concluding a fixed-term employment contract provided for in the commented article norm, should not be applied to him.

The fact that an employee due to health reasons can perform work of an exclusively temporary nature must be established by a medical report. A medical report of this kind has the right to be issued only by the body or institution to which such a right is granted (for example, institutions medical and social examination).

The term of the employment contract is determined in this case based on the duration that, according to the medical report, is allowed for of this employee according to his state of health. The employer does not have the right, at its discretion, to set for the employee a term of an employment contract of greater or lesser duration than that prescribed by the medical report;

3) with persons entering work in organizations located in the Far North and equivalent areas, if this is associated with moving to the place of work. Since the law connects the possibility of concluding a fixed-term employment contract with these persons with their relocation to their place of work in organizations located in the regions of the Far North and equivalent areas, then this rule should not apply to citizens permanently residing in these areas and localities. A fixed-term employment contract is concluded with them on the grounds specified in Part 1 of Art. 59, by agreement of the parties in the cases specified in Part 2 of the same article (for example, when applying for a part-time job), as well as in other cases provided for by the Labor Code or other federal laws.

The list of regions of the Far North and equivalent areas was approved by Resolution of the Council of Ministers of the USSR of November 10, 1967 N 1029 (SP USSR. 1967. N 29. Art. 203) and is valid today as amended. Resolution of the Council of Ministers of the USSR of January 3, 1983 N 12 (SP USSR. 1983. N 5. Art. 21) with additions and amendments made by the legislation of the Russian Federation;

4) to carry out urgent work to prevent disasters, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances (for example, to eliminate the consequences of a flood, fire). Since the law does not establish a minimum or maximum term, for which an employment contract can be concluded under the specified circumstances, it is determined by agreement of the parties. If the term of the employment contract does not exceed 2 months, the resulting labor relations are regulated taking into account the specifics established by Chapter. 45 Labor Code (see commentary to Art. Art. 289 - 292);

5) with creative media workers mass media, cinematography organizations, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, professional athletes in accordance with the lists of jobs, professions, positions of these workers, approved by the Government of the Russian Federation taking into account the opinion of the Russian tripartite commission for regulation of social and labor relations. To date, such lists have not been approved;

6) with managers, deputy managers and chief accountants of organizations. It does not matter what the legal form and form of ownership of these organizations are - joint stock company, limited liability company, state unitary enterprise, etc.

The validity period of the employment contract with the head of the organization in accordance with Part 1 of Art. 275 of the Labor Code, as set out in the new edition, is determined by the constituent documents of the organization or by agreement of the parties. That is, by agreement of the parties, the term of the employment contract with the head of the organization is determined if it is not established by the constituent documents of the organization. It should be noted that according to the previous wording of Part 1 of Art. 275 of the Labor Code, the conclusion of a fixed-term employment contract with the head of the organization was mandatory;

7) with persons studying in full-time training;

8) with persons applying for part-time work (on the procedure and conditions for concluding an employment contract for part-time work, see the commentary to Articles 282 - 288).

4. In addition to the cases expressly provided for in Part 2 of Art. 59, the conclusion of a fixed-term employment contract by agreement of the parties is also permitted in other cases provided for by the Labor Code or other federal law. So, in accordance with Art. 332 of the Labor Code, set out in the new edition, by agreement of the parties, fixed-term employment contracts can be concluded to fill positions of scientific and pedagogical workers in a higher educational institution. According to the previous version of this article, the conclusion of a fixed-term employment contract (for a period of up to 5 years) with these employees was mandatory.

5. In accordance with the general rules for concluding a fixed-term employment contract, established by Art. 58 of the Labor Code, a fixed-term employment contract can be concluded either in cases where the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation (Part 1 of Article 59), or by agreement of the parties without taking into account the above-mentioned circumstances in cases provided for by the Labor Code or other federal law (Part 2 of Article 59). However, in some cases the Labor Code provides for the conclusion of a fixed-term employment contract without taking into account these general rules. So, according to Part 14 of Art. 332 of the Labor Code, a fixed-term employment contract is concluded with the vice-rectors of a higher educational institution. This norm is stated in imperative form; therefore, the conclusion of a fixed-term employment contract with these employees is mandatory by virtue of a direct requirement of the law. However, neither by the nature nor by the conditions of performance, work as a vice-rector of a higher educational institution does not relate to work for the performance of which it is impossible to conclude an employment contract for an indefinite period. Thus, by providing for the mandatory conclusion of a fixed-term employment contract with the vice-rectors of a higher educational institution, the legislator showed obvious inconsistency in regulating the relations in question (see commentary to Article 332).

A fixed-term employment contract is concluded:

for the duration of the performance of the duties of an absent employee, who, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract, retains his place of work;

for the duration of temporary (up to two months) work;

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

with persons sent to work abroad;

for carrying out work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work related to 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 obviously defined work in cases where its completion cannot be determined by a specific date;

to perform work directly related to practice, professional training or additional vocational 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 state authorities and local governments, in political parties and other public associations;

with persons sent by employment services to temporary work and public works;

with citizens sent to perform alternative civil 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 age pensioners entering work, 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 Far North and equivalent areas, if this is associated with moving to the place of work;

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

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

with creative workers of the media, cinematography organizations, theaters, theatrical 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 managers, deputy managers and chief accountants of organizations, regardless of their legal forms and forms of ownership;

with persons receiving full-time education;

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

with persons applying for part-time work;

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

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

1. List of regions of the Far North and localities equated to regions of the Far North, which are subject to the Decrees of the Presidium of the Supreme Soviet of the USSR dated February 10, 1960 and September 26, 1967 on benefits for persons working in these regions and localities, approved . Resolution of the Council of Ministers of the USSR of November 10, 1967 N 1029, currently in force as amended. Resolution of the Council of Ministers of the USSR of January 3, 1983 No. 12 (as amended and supplemented).

2. The specifics of concluding a service contract with civil servants are set out in Federal Law No. 79-FZ of July 27, 2004 “On the State Civil Service of the Russian Federation”.

3. The specifics of concluding an employment contract with municipal employees are set out in Federal Law No. 25-FZ of March 2, 2007 “On Municipal Service in the Russian Federation”.

4. To small and medium-sized businesses in accordance with Art. 4 of the Federal Law of July 24, 2007 N 209-FZ "On the development of small and medium-sized businesses in the Russian Federation" include those included in the Unified state register legal entities consumer cooperatives and commercial organizations (except for state and municipal unitary enterprises), as well as individuals included in the Unified State Register of Individual Entrepreneurs and carrying out entrepreneurial activities without forming a legal entity, peasant (farm) enterprises that meet the following conditions:
1) for legal entities, the total share of participation of the Russian Federation, constituent entities of the Russian Federation, municipalities, foreign legal entities, foreign citizens, public and religious organizations (associations), charitable and other funds in the authorized (share) capital (share fund) of these legal entities is not must exceed 25% (except for the assets of joint-stock investment funds and closed-end mutual investment funds), the share of participation owned by one or more legal entities that are not small and medium-sized businesses must not exceed 25%;
2) the average number of employees for the previous calendar year should not exceed the following limit values average number of employees for each category of small and medium-sized businesses: a) from 101 to 250 people. inclusive for medium-sized enterprises; b) up to 100 people. inclusive for small businesses; Among small enterprises, microenterprises stand out - up to 15 people;
3) revenue from the sale of goods (work, services) excluding value added tax or the book value of assets (residual value of fixed assets and intangible assets) for the previous calendar year should not exceed the limit values ​​established by the Government of the Russian Federation for each category of small and medium-sized entities entrepreneurship.

5. In accordance with Part 1 of Art. 58 of the Labor Code, a fixed-term employment contract can be concluded for a period of no more than 5 years, if more long term not established by the Labor Code or other federal laws. When concluding a fixed-term employment contract with persons entering work in organizations created for a predetermined period of time or to perform a predetermined job (paragraph 9 of Article 59 of the Labor Code), the term of the employment contract is determined by the period for which such an organization was created. Therefore, termination of an employment contract with these employees on the basis of expiration of the employment contract can be carried out if the organization actually ceases 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 transfer of rights and obligations in the order of succession to other persons ().

If a fixed-term employment contract was concluded to perform a specific job in cases where its implementation (completion) cannot be determined by a specific date (paragraph 10 of Article 59 of the Labor Code), such an agreement, by virtue of Part 2 of Art. 79 Labor Code is terminated upon completion of this work.

If it is established during the trial that there have been multiple conclusions of fixed-term employment contracts for a short period of time 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 (clause 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2 "On the application by the courts of the Russian Federation Labor Code Russian Federation").

6. When considering disputes between employees with whom fixed-term employment contracts were concluded for a period of up to 2 months. or for the duration of seasonal work, it is necessary to take into account the peculiarities of regulating relations under these agreements, established by Chapter. 45 - 46 TK. In particular, when hiring for a period of up to 2 months. employees cannot be subject to probation (Article 289 of the Labor Code), and when hired for seasonal work, the probationary period cannot exceed 2 weeks (Part 2 of Article 294 of the Labor Code); in case of early termination of the employment contract, these employees are obliged to notify the employer in writing about this 3 calendar days in advance (part 1 of article 292, part 1 of article 296 of the Labor Code). The employer is obliged to notify about the upcoming dismissal in connection with the liquidation of the organization, reduction in the number or staff of employees in writing against signature: employees who have entered into an employment contract for a period of up to 2 months - at least 3 calendar days in advance (Part 2 of Art. 292 Labor Code), and for workers employed in seasonal work - no less than 7 calendar days(Clause 15 of the Resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2).

7. Part 1 of the commented article lists 12 grounds under which the parties to an employment contract are required to conclude a fixed-term employment contract. The commented article names 2 reasons for the urgency of an employment contract: the nature of the work to be done and the conditions for its implementation. Part 2 of the commented article lists 10 situations in which a fixed-term employment contract can be concluded by agreement of the parties. At the same time, if these grounds exist, an employment contract can be concluded for an indefinite period.

8. If an employment contract is concluded with an employee for an indefinite period, and then the employee reaches retirement age, the employer has the right to offer the employee to change the term of the employment contract to a fixed-term one. If the employee agrees, then a change can be made to the employment contract, i.e. replace an indefinite period with a specific one. If the employee does not agree to change the term of the employment contract, then the employer cannot unilaterally make such a change.

[Labor Code of the Russian Federation] [Chapter 10] [Article 59]

A fixed-term employment contract is concluded:

for the duration of the performance of the duties of an absent employee, who, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract, retains his place of work;

for the duration of temporary (up to two months) work;

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

with persons sent to work abroad;

for carrying out work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work related to 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 obviously defined 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 state authorities and local governments, in political parties and other public associations;

with persons sent by employment services to temporary work and public works;

with citizens sent to perform alternative civil 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 age pensioners entering work, 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 Far North and equivalent areas, if this is associated with moving to the place of work;

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

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

with creative workers of the media, cinematography organizations, theaters, theatrical 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 managers, deputy managers and chief accountants of organizations, regardless of their legal forms and forms of ownership;

with persons receiving full-time education;

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

with persons applying for part-time work;

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

2 comments on the entry “Article 59 of the Labor Code of the Russian Federation. Fixed-term employment contract”

Article 59. Fixed-term employment contract

Commentary on Article 59

In the previous version of Art. 59 in one row listed cases when a fixed-term employment contract must be concluded either due to objective obligations or due to legal requirements, as well as cases when a fixed-term employment contract can be concluded on the initiative of one of the parties. The new edition of the commented article divides these cases into two independent groups.
Part 1 of the commented article 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 anything other than fixed-term. A fixed-term employment contract is concluded for the duration of the duties of an absent employee. Such an agreement is concluded when the absent employee retains his place of work (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 duration of the employment contract in these cases is determined by the time of absence of the employee, who, by law, retains his place of work. The date of return of the absent employee 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 two months. The specific term of the contract in this case is established by agreement of the parties. If the work is permanent, then concluding a fixed-term employment contract for a period of up to two months is unlawful (Articles 289 - 292 of the Labor Code and commentary thereto).
To perform seasonal work, a fixed-term employment contract is also concluded. Seasonal work is work that, due to climatic and other natural conditions, is carried out during a certain period (season), usually not exceeding six months. Lists of seasonal work, including individual seasonal work, which can be carried out over a period (season) exceeding six months, and the maximum duration of these individual seasonal works are determined by industry (inter-industry) agreements concluded at the federal level of social partnership.
A fixed-term employment contract is concluded with persons sent to work abroad (see Articles 337 - 341 of the Labor Code and commentary thereto). Fixed-term employment contracts are concluded with employees recruited to work at 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 the employment contract with employees of representative offices of federal executive authorities and government agencies abroad is determined by agreement of the parties on the basis of protocols concluded by the relevant bodies and institutions with the Russian Ministry of Foreign Affairs.
To carry out work that goes beyond the normal activities of the organization (reconstruction, installation, commissioning and other work), as well as to carry out work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided, a fixed-term employment contract is concluded. This norm involves two grounds for concluding a fixed-term employment contract:
a) to perform work outside the normal activities of the organization. The normal activities of an organization are determined by its organizational and registration documents. As an example, the legislator names such types of work as reconstruction, installation and commissioning work. 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, so it should not general rule exceed five years;
b) to carry out work related to 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 organization’s normal activities 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 or to perform a predetermined job. The constituent documents of such an organization must necessarily state that it was created to perform a specific job and for a specific period (for example, a directorate for holding anniversary events, exhibitions, competitions, etc.). The term of an employment contract with persons entering work in such organizations cannot exceed the period stipulated by the constituent documents of this organization, however, in our opinion, the term of such an employment contract may be less than the period of activity of the organization 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. Termination of an employment contract with these employees on the basis of expiration of the employment contract can be carried out if the organization actually ceases 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 transfer of rights and duties in the order of succession to other persons (Article 61 of the Civil Code).
If a fixed-term employment contract was concluded to perform certain work in cases where its completion cannot be determined by a specific date (paragraph 8, part 1, article 59 of the Labor Code), such an agreement, by virtue of part 2 of art. 79 Labor Code is terminated upon completion of this work.
If it is established during the trial that there have been multiple conclusions of fixed-term employment contracts for a short period of time 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.
If it is established during the trial that multiple fixed-term employment contracts have been concluded for a short period of time 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 (clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated 17.03 .2004 N 2).
A fixed-term employment contract is concluded with persons hired to perform a clearly defined job in cases where its implementation (completion) cannot be determined by a specific date, which must indicate that it is concluded for the duration of the specific work (for example, drawing up a report , organization and conduct of elections, etc.). The basis for termination of such an employment contract will be the completion (completion) of the specified work.
A fixed-term employment contract is concluded to perform work directly related to the employee’s internship and professional training. The term of the contract in such cases is determined by the duration of the internship or the period of professional training. There are no internship periods in the legislation; they are determined by agreement of the parties to the contract based on the specialty in which the internship is taking place and the level of knowledge of the interns.
A fixed-term employment contract is concluded with persons elected for a certain period of time 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 (see Articles 17 and 332 of the Labor Code and commentary thereto).
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 government bodies, local governments, as well as in political parties and other public associations. The law provides for the conclusion of a fixed-term employment contract to perform 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 party chairman, etc. p.).
It should be noted that in accordance with the Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation” with persons holding positions established to assist persons holding public positions, managers government agencies, 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 conclusion and termination of which are regulated by this Law. It should be borne in mind that state civil servants and municipal employees are subject to labor legislation and other acts containing labor law norms, with the features provided for by federal laws and other regulatory legal acts of the Russian Federation, laws and other regulatory legal acts of constituent entities Russian Federation on state civil service and municipal service.
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Federal Law of July 27, 2004 N 79-FZ “On the State Civil Service of the Russian Federation” (as amended on November 21, 2011) // SZ RF. 2004. N 31. Art. 3215; 2006. N 6. Art. 636; 2007. N 10. Art. 1151; N 16. Art. 1828; N 49. Art. 6070; 2008. N 13. Art. 1186; N 30 (part 2). Art. 3616; N 52 (part 1). Art. 6235; 2009. N 29. Art. 3597; N 29. Art. 3624; N 48. Art. 5719; N 51. Art. 6159; 2010. N 5. Art. 459; N 7. Art. 704; N 49. Art. 6413; 2011. N 1. Art. 31; N 27. Art. 3866; N 29. Art. 4295.

A fixed-term employment contract is concluded with persons sent by the employment service authorities to temporary work and public works. The term of the contract in such cases is determined by agreement of the parties. In accordance with Art. 24 of the Law of the Russian Federation “On Employment of the Population in the Russian Federation”, a fixed-term employment contract for a period of up to six months is concluded with persons wishing to participate in public works.
According to Art. 6 of the Federal Law of July 25, 2002 N 113-FZ “On Alternative Civil Service” (as amended on March 9, 2010), a fixed-term employment contract is concluded with citizens performing alternative service for the period of service. The term of the contract is established by paragraphs 1 and 2 of Art. 16 of the Law.
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NW RF. 2002. N 30. Art. 3030; 2004. N 35. Art. 3607; 2006. N 1. Art. 22; N 29. Art. 3122; 2010. N 11. Art. 1176.

It should be borne in mind that Part 1 of the commented article provides, in addition to the listed cases, other cases defined by the Labor Code or other federal laws. For example, heads of organizations created by consumer societies and (or) unions consumer cooperation are appointed to a position for a period of up to five years (see Law of the Russian Federation of June 19, 1992 N 3085-1 “On consumer cooperation (consumer societies, their unions) in the Russian Federation” (as amended on March 21, 2002)).
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VSND and the Armed Forces of the Russian Federation. 1992. N 30. Art. 1788; NW RF. 1997. N 28. Art. 3306; 2000. N 18. Art. 1910; 2002. N 12. Art. 1093.

Thus, the list of cases when a fixed-term employment contract is concluded cannot be expanded by any other regulatory legal acts or agreements.
In contrast to Part 1 of the commented article, Part 2 provides for cases when, by agreement of the parties, a fixed-term employment contract can 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 for both a definite period and an indefinite one. The conclusion of such contracts does not depend on the nature of the work to be performed or the conditions for its implementation, i.e. requirements of Art. 58 TC 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 about the legality of concluding a fixed-term contract, establishes that it was concluded by the employee involuntarily, the court applies the rules of a contract concluded for an indefinite period (clause 13 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 N 2).
The criteria allowing 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 Federal Law dated July 24, 2007 N 209-FZ “On the development of small and medium-sized businesses in the Russian Federation” (as amended on July 1, 2011). Such an agreement can be concluded for a period of no more than five years.
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NW RF. 2007. N 31. Art. 4006; N 43. Art. 5084; 2008. N 30 (part 1). Art. 3615; N 30 (part 2). Art. 3616; 2009. N 31. Art. 3923; N 52 (part 1). Art. 6441; 2010. N 28. Art. 3553; 2011. N 27. Art. 3880.

A fixed-term employment contract can be concluded with old-age pensioners entering work. The new edition of the commented article clarifies that the conclusion of a fixed-term employment contract applies only to age pensioners, i.e. for persons who have already been assigned a pension, taking into account age and length of service. If the employee does not have necessary conditions to assign a pension, even if the employee has reached retirement age, an employment contract is concluded with such employee for general conditions. Age pensioners also include persons who have been assigned a pension on preferential terms (due to harmful and difficult working conditions).
Thus, one of the parties to the employment contract is the person who has acquired the status of a pensioner, i.e. has reached retirement age and has been assigned an old-age pension.
Part 2 of this norm is applicable to persons who are allowed to work temporarily for health reasons. The state of health and duration of work must be established by a medical report (for example, medical and social examination institutions, clinical expert commissions). The term of the employment contract is determined by agreement of the parties and cannot exceed that specified in the medical report.
A fixed-term employment contract is concluded with persons applying for 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 equivalent areas was approved by Resolution of the Council of Ministers of the USSR dated November 10, 1967 N 1029 (as amended on January 3, 1983).
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SP USSR. 1967. N 29. Art. 203; 1983. N 5. Art. 21.

It should be borne in mind that a fixed-term employment contract can be concluded with local residents, those who permanently reside in the regions of the Far North and equivalent areas, only on the general basis provided for in Art. 58 Labor Code (see Art. 313 - 327 Labor Code and commentary thereto).
However, it must be borne in mind that the conclusion of a fixed-term employment contract may be considered justified 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 agreement of the parties, since the law does not define either the minimum or maximum terms of such an agreement. It seems that the term of the employment contract in these cases may be determined by the completion date of work to eliminate the circumstances specified in this norm (for example, the completion of work to eliminate an accident, catastrophe, earthquake, etc.).
A fixed-term employment contract may be concluded with persons selected through a competition to fill the relevant position; with scientific, teaching and other workers 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 workers is the fact that the person passed the competition (see Article 332 of the Labor Code and the commentary thereto).
On the basis of a competition, positions of researchers, heads of laboratories, departments, and sectors in research institutions are filled (see Article 18 of the Labor Code and commentary thereto).
A fixed-term employment contract can be concluded with creative workers of the media, cinema organizations, theaters, theatrical and concert organizations, circuses and other persons who participate 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 N 252, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations.
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NW RF. 2007. N 19. Art. 2356.

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 (see Article 275 of the Labor Code and commentary thereto).
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. 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 students (graduate students) studying full-time, it is established on a general basis (but not more than five years) or the term of the contract may be determined by the period of study (but not more than five years). When concluding a fixed-term employment contract with persons studying full-time, the employer, in addition to the documents provided for by the Labor Code, may, in our opinion, require a certificate confirming the fact of the student’s (postgraduate) full-time education.
A fixed-term employment contract can be concluded with persons employed part-time. Part-time work can be performed by an employee both at the place of his main job (internal part-time work) and with other employers (external part-time work). Part-time work is allowed only during free time from the main job (see Articles 282 - 288 of the Labor Code and commentary thereto).
Other cases when it is possible to conclude fixed-term employment contracts, in addition to those contained in Part 2 of the commented article, may be provided for by the Labor Code and other federal laws.

Article 59. Fixed-term employment contract

Commentary on Article 59

1. Article 59 contains two parts, each of which provides for different types of work (cases), for the performance of which a fixed-term employment contract is concluded with the employee.
Lists of works (cases) provided for in both Part 1 and Part 2 of Art. 59 are not exhaustive. The Labor Code or other federal laws may provide for other cases when the conclusion of a fixed-term employment contract is either mandatory by law or permitted by agreement of the parties to the employment contract. Since in Art. 59 we are talking about the Labor Code or another federal law; neither the law of a subject of the Russian Federation, nor the decree of the President of the Russian Federation, nor the decree of the Government of the Russian Federation, nor any other subordinate regulatory legal act can establish any additional grounds (cases) for concluding a fixed-term employment contract.
2. Cases (types of work) listed in Part 1 of Art. 59, correspond to the general criterion for concluding a fixed-term employment contract, formulated in Part 2 of Art. 58 TK. That is, all the cases listed in it determine the urgent nature of the labor relationship.
Thus, the conclusion of a fixed-term employment contract in the areas listed in Part 1 of Art. In 59 cases it is determined by the very nature of the work or the conditions of its implementation, and is therefore mandatory.
Part 1 art. 59 names 11 specific cases when a fixed-term employment contract is concluded with an employee:
1) for the duration of the duties of a temporarily absent employee. Such an employment contract is concluded when an absent employee, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, an employment contract, retains a place of work (for example, while the employee is on a long business trip , on maternity leave). The term of the employment contract in this case depends on the time of the absent employee’s return to perform his labor (official) duties. Since the law speaks of the temporary absence of an employee whose place of work (position) is retained, a fixed-term employment contract cannot be concluded to perform the duties of a vacant position until another permanent employee is hired for this position;
2) to perform temporary (up to 2 months) work, as well as seasonal work, when, due to natural conditions, work can only be carried out during a certain period (season), not exceeding, as a rule, 6 months (see commentary to Art. 293).
Concluding a fixed-term employment contract for a period of up to 2 months is possible provided that the work is obviously temporary in nature, i.e. it is known in advance that it will last no more than 2 months (for example, during the preparation of the annual report). In this case, the contract by agreement of the parties must determine the specific term of the employment contract within 2 months (3 weeks, 1 month, 1.5 months, etc.).
It will be unlawful to conclude a fixed-term employment contract for a period of up to 2 months to perform work that is permanent for the employer.
Concluding a fixed-term employment contract to perform seasonal work is permitted provided that this work is provided for in a special list of seasonal work. Lists of seasonal work, incl. individual seasonal work, the implementation of which is possible during a period (season) exceeding 6 months, and the maximum duration of these individual seasonal work are determined by industry (inter-industry) agreements concluded at the federal level of social partnership (Part 2 of Article 293, see comment. to her).
Concluding a fixed-term employment contract for a specific season to perform work not covered by the above list will be considered unlawful;
3) with persons sent to work abroad. It does not matter to which organization abroad the employee is sent. These may be diplomatic missions and consular offices of the Russian Federation abroad, as well as representative offices of federal executive authorities and government agencies of the Russian Federation, commercial organizations, scientific and educational institutions, etc.;
4) to carry out work that goes beyond the normal activities of the employer, as well as to carry out work related to a deliberately temporary (up to 1 year) expansion of production or the volume of services provided.
In this case, the usual activities of the employer should be understood as those types of work that correspond to the main directions of the organization’s activities as enshrined in its charter.
As an example of work that goes beyond the normal activities of an organization, the law names reconstruction, installation, and commissioning work. Depending on the nature (type) of the organization’s normal activities, this may include other work, such as repairs and construction. However, in all cases, work that goes beyond the normal (core) activities of the organization, for which fixed-term employment contracts can be concluded, must be temporary (urgent) in nature. Since the law does not establish any special deadline for which such an employment contract can be concluded, the term of the employment contract is determined in each specific case by agreement of the parties based on specific circumstances and the period of time during which there remains a need to perform work beyond outside the normal activities of the organization. Here the general rules on the maximum term of the employment contract established by Art. 58 TK, i.e. 5 years.
Unlike an employment contract concluded to carry out work outside the scope of the employer’s normal activities, the term of an employment contract concluded in connection with the need to temporarily expand production or the volume of services provided is limited. It cannot exceed one year. This is due to the fact that work under such an agreement is carried out as part of the organization’s normal activities and the need to expand production or the volume of services provided is limited to certain time limits, known to the employer.
The specific validity period of an employment contract for the performance of work related to a deliberately temporary expansion of production or the volume of services provided is determined within one year by agreement of the parties. For example, due to the increase in the number of tourists in the summer and the expansion in connection with this of the volume of services provided, hotels, cafes, restaurants, transport organizations, etc. can hire an additional number of workers by concluding employment contracts with them for a certain period (1, 2, 3 months, etc.);
5) with persons entering work in organizations created for a predetermined period of time or to perform a predetermined job.
The fact that an organization was created for a certain period or only to perform a certain job must be recorded in the charter of this organization. The charter of the organization also defines the specific period of time for which it was created or during which the work will be completed, the implementation of which is the purpose of creating the organization (for example, for 2, 3, 4 years).
The term of an employment contract with persons entering an organization created for a predetermined period of time or to perform a predetermined job is determined by the period for which such an organization was created. Therefore, termination of an employment contract with these employees on the basis of expiration of the employment contract can be carried out if the organization actually ceases 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 transfer of rights and obligations in the order of succession to other persons (clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2);
6) with persons hired to perform obviously defined work in cases where its implementation (completion) cannot be determined by a specific date.
In these cases, the employment contract with employees must indicate that it is concluded for the duration of this particular work (for example, during the renovation of an office, during the construction of a facility). The completion (completion) of the specified work will be the basis for termination of the employment contract due to the expiration of its validity. At the same time, it should be borne in mind that if during the trial it is established that there have been multiple conclusions of fixed-term employment contracts for a short period of time 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 ( clause 14 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2);
7) to perform work directly related to the employee’s internship or professional training. In this case, the employment contract is concluded for the period of internship or vocational training.
Internship or vocational training of employees in an organization can be carried out either on the basis of an agreement with another organization that sent its employee for an internship or vocational training, or on the basis of an apprenticeship agreement concluded by the organization with the student himself (see commentary to Article 198 - 208);
8) in case of election for a certain period to an elected body or to an elective position for paid work. For example, for the position of rector of a state or municipal higher educational institution, dean of a faculty or head of a department of a higher educational institution. According to Art. 12 of the Law on Vocational Education, art. 332 of the Labor Code, these positions are filled on the basis of elections held in the manner established by the charter of the educational institution (see Art. 17, 332 of the Labor Code);
9) when applying for a job related to the direct support of the activities of members of elected bodies or officials in state authorities and local governments, in political parties and other public associations. In this case, we are talking about work related to directly supporting the activities of members of these bodies or officials. This means that not all persons applying for work in these elected bodies can be entered into a fixed-term employment contract. We are talking about agreements concluded to perform work that is directly aimed at ensuring the activities of members of the relevant elected bodies or officials (for example, work as an assistant, secretary, adviser to the governor; assistant, assistant to the party chairman).
The term of the employment contract in these cases is established by agreement of the parties within the term of office of the relevant elected body or official.
Early termination of the powers of certain bodies or officials should entail the termination of employment contracts with persons hired to ensure the specified activities;
10) with persons sent by the employment service authorities to temporary work and public works. Such work is organized as additional social support for citizens looking for work. The term of the employment contract for such work is determined by agreement of the parties.
If the work to which a citizen is directed by the employment service is permanent, concluding a fixed-term employment contract with him is not allowed;
11) with citizens sent to perform alternative civil service. When concluding an employment contract with this category of citizens, it should be borne in mind that the status of citizens performing alternative civil service is established by Federal Law of July 25, 2002 N 113-FZ “On Alternative Civil Service” (SZ RF. 2002. N 30. Art. 3030) in accordance with the Constitution of the Russian Federation. Alternative civil service is a special type of labor activity in the interests of society and the state, carried out by citizens in exchange for conscript military service. The procedure for sending citizens to alternative civil service is determined by the said Law, other federal laws, and the Regulations on the procedure for performing alternative civil service, approved. Decree of the Government of the Russian Federation of May 28, 2004 N 256 (SZ RF. 2004. N 23. Art. 2309), and other regulatory legal acts of the Russian Federation adopted in accordance with them.
The labor activity of citizens performing alternative civil service is regulated by the Labor Code, taking into account the features provided for by the specified Federal Law.
In accordance with Art. 5 of this Law, the period of alternative civil service is 1.75 times greater than the period of military service established by the Law on Military Duty and is 21 months for citizens sent to serve it after January 1, 2008. The period of alternative civil service for citizens undergoing this service in organizations of the Armed Forces of the Russian Federation, other troops, military formations and bodies is 1.5 times greater than the period of conscription military service established by the Law on Military Duty and is 18 months for citizens sent for it. passing after January 1, 2008.
In accordance with the specified deadlines, the term of the employment contract with citizens sent to perform alternative civil service is determined. When concluding an employment contract, the parties do not have the right to establish a different duration of its validity.
3. Unlike part 1 of the commented article, according to which the conclusion of an employment contract for a certain period due to the nature of the work to be done or the conditions for its implementation is mandatory, part 2 of the article provides a list of cases when the conclusion of a fixed-term employment contract is allowed by agreement of the parties . Moreover, by agreement of the parties, a fixed-term employment contract listed in Part 2 of Art. In 59 cases, it can be concluded without taking into account the nature of the work to be done or the conditions for its implementation. It must be borne in mind that such an agreement can be recognized as legal 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. If the court, when resolving a dispute about the legality of concluding a fixed-term employment contract, finds that it was concluded by the employee involuntarily, the court applies the rules of an agreement concluded for an indefinite period (clause 13 of the Resolution of the Plenum of the Armed Forces of the Russian Federation of March 17, 2004 No. 2).
According to Part 2 of the commented article, by agreement of the parties, a fixed-term employment contract can be concluded:
1) 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).
The concept and types of small businesses are defined by the Federal Law of July 24, 2007 N 209-FZ “On the development of small and medium-sized businesses in the Russian Federation” (SZ RF. 2007. N 31. Art. 4006). In accordance with Art. 3 small and medium-sized businesses - business entities (legal entities and individual entrepreneurs) classified in accordance with the conditions established by this Federal Law as small enterprises, incl. to micro- and medium-sized enterprises.
According to Art. 4 small and medium-sized businesses include consumer cooperatives and commercial organizations included in the Unified State Register of Legal Entities (with the exception of state and municipal unitary enterprises), as well as individuals entered in the Unified State Register of Individual Entrepreneurs and carrying out entrepreneurial activities without forming a legal entity (hereinafter referred to as individual entrepreneurs), peasant (farm) enterprises that meet the following conditions:
- for legal entities - the total share of participation of the Russian Federation, constituent entities of the Russian Federation, municipalities, foreign legal entities, foreign citizens, public and religious organizations (associations), charitable and other funds in the authorized (share) capital (share fund) of these legal entities is not must exceed 25% (except for the assets of joint-stock investment funds and closed-end mutual investment funds), the share of participation owned by one or more legal entities that are not small and medium-sized businesses must not exceed 25%;
— the average number of employees for the previous calendar year should not exceed the following maximum values ​​of the average number of employees for each category of small and medium-sized businesses:
a) from 101 to 250 people inclusive for medium-sized enterprises;
b) up to 100 people inclusive for small enterprises; Among small enterprises, microenterprises stand out - up to 15 people;
— revenue from the sale of goods (work, services) excluding value added tax or the book value of assets (residual value of fixed assets and intangible assets) for the previous calendar year should not exceed the limit values ​​​​established by the Government of the Russian Federation for each category of small and medium-sized businesses .
Newly created organizations or newly registered individual entrepreneurs and peasant (farm) enterprises during the year in which they are registered can be classified as small and medium-sized businesses if their indicators of the average number of employees, revenue from the sale of goods (work, services) or book value of assets (residual value of fixed assets and intangible assets) for the period elapsed from the date of their state registration, do not exceed the limit values ​​​​established by the said article.
The average number of employees of a micro-enterprise, small enterprise or medium-sized enterprise for a calendar year is determined taking into account all its employees, incl. employees working under civil contracts or part-time, taking into account actual time worked, employees of representative offices, branches and other separate divisions of the specified micro-enterprise, small enterprise or medium-sized enterprise;
2) with age pensioners entering work, 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.
It is necessary to pay attention to what the law says about age pensioners entering work, i.e. about those who for the first time or again (after dismissal) enter into an employment contract with this employer. In this regard, the employer has no right, incl. and with the consent of the employee who is in an employment relationship with him and has reached retirement age, renew the employment contract concluded with this employee for an indefinite period into a fixed-term employment contract. It should be borne in mind that the number of old-age pensioners includes persons who have reached retirement age and who, in accordance with pension legislation, have been assigned an old-age pension. If a citizen has reached the age required to assign a pension, but in accordance with pension legislation has not acquired the right to it or the pension has not been assigned to him due to any other circumstances, he cannot be considered a pensioner and, therefore, the rules for concluding a fixed-term employment contract provided for in the commented article norm, should not be applied to it.
The fact that an employee due to health reasons can perform work of an exclusively temporary nature must be established by a medical report. A medical report of this kind has the right to issue only the body or institution to which such a right is granted (for example, medical and social examination institutions).
The term of the employment contract is determined in this case based on the duration that, according to a medical report, is allowed for a given employee in accordance with his state of health. The employer does not have the right, at its discretion, to set for the employee a term of an employment contract of greater or lesser duration than that prescribed by the medical report;
3) with persons entering work in organizations located in the Far North and equivalent areas, if this is associated with moving to the place of work. Since the law connects the possibility of concluding a fixed-term employment contract with these persons with their relocation to their place of work in organizations located in the regions of the Far North and equivalent areas, this rule should not apply to citizens permanently residing in these areas and localities. A fixed-term employment contract is concluded with them on the grounds specified in Part 1 of Art. 59, by agreement of the parties in the cases specified in Part 2 of the same article (for example, when applying for a part-time job), as well as in other cases provided for by the Labor Code or other federal laws.
The list of regions of the Far North and equivalent areas was approved by Resolution of the Council of Ministers of the USSR of November 10, 1967 N 1029 (SP USSR. 1967. N 29. Art. 203) and is valid today as amended. Resolution of the Council of Ministers of the USSR of January 3, 1983 N 12 (SP USSR. 1983. N 5. Art. 21) with additions and amendments made by the legislation of the Russian Federation;
4) to carry out urgent work to prevent disasters, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances (for example, to eliminate the consequences of a flood, fire). Since the law does not establish a minimum or maximum period for which an employment contract can be concluded under these circumstances, it is determined by agreement of the parties. If the term of the employment contract does not exceed 2 months, the resulting labor relations are regulated taking into account the specifics established by Chapter. 45 Labor Code (see commentary to Art. 289 - 292);
5) with creative workers of the media, cinematography organizations, theaters, theatrical 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 RF, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations. Decree of the Government of the Russian Federation dated April 28, 2007 N 252 approved the List of professions and positions of creative workers in the media, cinematography organizations, television and video crews, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, the specifics of labor activity of which are established by the Labor Code of the Russian Federation;
6) with managers, deputy managers and chief accountants of organizations. It does not matter what the organizational and legal form and form of ownership of these organizations are - joint stock company, limited liability company, state unitary enterprise, etc.
The validity period of the employment contract with the head of the organization in accordance with Part 1 of Art. 275 of the Labor Code is determined by the constituent documents of the organization or by agreement of the parties. That is, by agreement of the parties, the term of the employment contract with the head of the organization is determined if it is not established by the constituent documents of the organization;
7) with persons studying full-time;
8) with persons applying for part-time work (on the procedure and conditions for concluding an employment contract for part-time work, see the commentary to Articles 282 - 288).
4. In addition to the cases expressly provided for in Part 2 of Art. 59, the conclusion of a fixed-term employment contract by agreement of the parties is also permitted in other cases provided for by the Labor Code or other federal law. So, in accordance with Art. 332 of the Labor Code, by agreement of the parties, fixed-term employment contracts can be concluded to fill positions of scientific and pedagogical workers in a higher educational institution.
5. In accordance with the general rules for concluding a fixed-term employment contract, established by Art. 58 of the Labor Code, a fixed-term employment contract can be concluded either in cases where the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation (Part 1 of Article 59), or by agreement of the parties without taking into account the above-mentioned circumstances in cases provided for by the Labor Code or other federal law (Part 2 of Article 59). However, in some cases the Labor Code provides for the conclusion of a fixed-term employment contract without taking into account these general rules. So, according to Part 14 of Art. 332 of the Labor Code, a fixed-term employment contract is concluded with the vice-rectors of a higher educational institution. This norm is stated in imperative form; therefore, the conclusion of a fixed-term employment contract with these employees is mandatory by virtue of a direct requirement of the law. However, neither by the nature nor by the conditions of performance, work as a vice-rector of a higher educational institution does not relate to work for the performance of which it is impossible to conclude an employment contract for an indefinite period. Thus, by providing for the mandatory conclusion of a fixed-term employment contract with the vice-rectors of a higher educational institution, the legislator showed obvious inconsistency in regulating the relations in question (see commentary to Article 332).

A fixed-term employment contract is concluded:
for the duration of the performance of the duties of an absent employee, who, in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract, retains his place of work;
for the duration of temporary (up to two months) work;
to perform seasonal work, when, due to natural conditions, work can only be carried out during a certain period (season);
with persons sent to work abroad;
for carrying out work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work related to 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 obviously defined 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 state authorities and local governments, in political parties and other public associations;
with persons sent by employment services to temporary work and public works;
with citizens sent to perform alternative civil 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 age pensioners entering work, 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 Far North and equivalent areas, if this is associated with moving to the place of work;
to carry out urgent work to prevent disasters, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;
with persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;
with creative workers of the media, cinematography organizations, theaters, theatrical 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 managers, deputy managers and chief accountants of organizations, regardless of their legal forms and forms of ownership;
with persons receiving full-time education;
with crew members of sea vessels, inland navigation vessels and mixed (river - sea) navigation vessels registered in the Russian International Register of Vessels;
with persons applying for part-time work;
in other cases provided for by this Code or other federal laws.

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

§ 1. The commented article in the new edition consists of two parts.

It is necessary to be guided by the fact that the legislator, in the light of the Federal Law of June 30, 2006, provides for the conclusion of a fixed-term employment contract in cases where the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation. These cases are indicated in Part 1 of Art. 59. This list is open.

In Part 2 of Art. 59 lists cases of concluding a fixed-term employment contract by agreement of the parties.

This article states that such an agreement is concluded to replace a temporarily absent employee, who, in accordance with the law, retains his place of work.

The legislator lists cases in which an employee who is absent from work retains his place of work (position). So, for example, an employee retains his place of work if he is granted leave to care for a child until he reaches the age of three (see Article 256 of the Labor Code and the commentary thereto) or for the period of workers’ participation in a strike (see Article 414 of the Code and a commentary thereto).

§ 2. A fixed-term employment contract is concluded not with all employees of organizations located in the Far North, but only with those who have moved to their place of work from other regions of Russia.

§ 3. A fixed-term employment contract can be concluded with seasonal workers. Seasonal work is considered to be work that is performed during a certain period (season), but not more than six months due to natural and climatic conditions.

§ 4. An employment contract can be concluded for a certain period (up to two months). Persons who have entered into such an agreement are recognized as temporary workers.

§ 5. A fixed-term employment contract is concluded with persons entering small business organizations with up to 35 employees (in retail trade and consumer services organizations - up to 20 employees). In this case, it should be borne in mind that small businesses are understood as commercial organizations, as well as individuals engaged in entrepreneurial activities without forming a legal entity (see Federal Law of June 14, 1995 “On State Support of Small Businesses in the Russian Federation” (SZ RF. 1995 N 25. Art. 2343), as amended by the Federal Law of February 2, 2006).

§ 6. In accordance with Part 2 of this article, fixed-term employment contracts can be concluded with students, graduate students studying full-time.

§ 7. According to the current labor legislation, fixed-term employment contracts can be concluded with scientific, pedagogical and other categories of workers based on the results of a competition (see Article 332 of the Labor Code and the commentary thereto).

§ 8. A fixed-term employment contract takes place when hiring, for example, persons to perform obviously defined work in cases where its implementation (completion) cannot be determined by a specific date; persons sent for temporary work by employment services, including public works.

§ 9. A fixed-term employment contract may be concluded when an employee is elected for a certain period of time to an elected body or to an elective position for paid work.

§ 10. Fixed-term employment contracts are also concluded with persons sent to work abroad, part-time. Given in parts 1 and 2 of Art. 59 of the Labor Code, the list of cases of concluding fixed-term employment contracts is open, since it also talks about other cases provided for by federal laws. For example, heads of consumer cooperation organizations created by consumer societies or unions are appointed to positions for a period of up to five years (see Law of the Russian Federation of June 19, 1992 “On Consumer Cooperation (Consumer Societies, Their Unions) in the Russian Federation” (as amended by March 21, 2002) // Gazette of the Armed Forces of the Russian Federation 1992. N 30. Art.

§ 11. When concluding a fixed-term employment contract with persons entering work in organizations created for a predetermined period of time or to perform a predetermined job (paragraph 9 of Article 59 of the Labor Code), the term of the employment contract is determined by the period for which such an organization was created . Therefore, termination of an employment contract with these employees on the basis of expiration of the employment contract can be carried out if the organization actually ceases 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 transfer of rights and obligations in the order of succession to other persons (Article 61 of the Civil Code of the Russian Federation).

If a fixed-term employment contract was concluded to perform a specific job in cases where its implementation (completion) cannot be determined by a specific date (paragraph 10 of Article 59 of the Labor Code), such an agreement, by virtue of Part 2 of Art. 79 of the Code is terminated upon completion of this work.

If it is established during the trial that there have been multiple conclusions of fixed-term employment contracts for a short period of time 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.

Another comment on Article 59 of the Labor Code of the Russian Federation

1. The fixed-term nature of an employment contract is determined by three groups of circumstances: 1) the conclusion of a fixed-term contract is mandatory by virtue of the direct instructions of the law; 2) the fixed-term nature of the contract is dictated by objective circumstances, the presence of which excludes the possibility of concluding an employment contract for an indefinite period; 3) an agreement for a certain period can be concluded on the initiative of one of the parties or on their joint initiative.

The list of grounds that determine the need or possibility of concluding a fixed-term employment contract is open. But given that it is supplemented exclusively by the state, and at a level no lower federal law, in this sense, the list is closed, it cannot be expanded through 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 valid reason for concluding a fixed-term employment contract.

2. All grounds for concluding a fixed-term employment contract can be combined into three groups, determined by: 1) the characteristics of the personality (legal status) of the employee or employer; 2) limited time due to certain circumstances of the work activity for which the employee is involved; 3) the place of application of the employee’s labor.

3. Part 1 of the commented article contains a list of circumstances in the presence of 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.

There are at least two problems with this legal provision.

The first comes down to the question of what consequences may result from the absence in the text of an employment contract as a written document of an indication of the fixed-term nature of the employment contract. If we approach this problem formally, then the employment contract should be considered concluded for an indefinite period (Part 3 of Article 58 of the Labor Code). However, one cannot fail to take into account that in the case under consideration, the employment contract by its nature is of a fixed-term nature and, therefore, cannot exist after the end of the circumstances that led to its conclusion. It seems that in this case one should proceed from the agreement of the parties regarding the fixed-term nature of the employment contract, even if this agreement was achieved not directly, but indirectly, in the form of silence. Accordingly, upon termination of the circumstances that served as the basis for concluding a fixed-term employment contract, the latter is subject to termination in the manner established by Art. 79 TK.

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 the commented article. As noted, the legislator, formulating a list of such circumstances, proceeds from the fact that they objectively dictate the fixed-term nature of the employment contract, regardless of the will of its parties. Accordingly, the validity period of the employment contract is determined objectively and is limited by the time of existence of a particular circumstance. In other words, when concluding a fixed-term employment contract in accordance with Part 1 of the commented article, the contract must be concluded as a general rule for the entire period of existence of the circumstance that objectively determined the conclusion of the fixed-term employment contract, but no more than for the deadline established by law. For a period of shorter duration than the specified circumstance, a contract can be concluded only at the motivated request of the employee.

4. Part 2 of the commented article formulates the range of circumstances in the presence of which a fixed-term employment contract can be concluded by agreement of the parties. This formulation of the legislator means that a fixed-term employment contract is concluded only if there is the will of the parties. In this case, the parties have the right to enter into an agreement for both an indefinite and a definite period. IN the latter case Any term of validity of the employment contract may be established within the maximum period, established by law. The text of the employment contract should indicate the type of employment contract; the reason for concluding a fixed-term employment contract; the duration of its validity (indicating a specific date or circumstances the occurrence of which determines the termination of the employment contract). Failure to comply with these requirements may, in the event of a dispute, result in the employment contract being recognized as concluded for an indefinite period.

In this regard, the RF Armed Forces reasonably indicate that, in accordance with Part 2 of Art. 58 of the Labor Code, in the cases provided for in Part 2 of the commented article, a fixed-term employment contract may be concluded without taking into account the nature of the work to be performed and the conditions for its implementation. It must be borne in mind that such an agreement can be recognized as legal 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 about the legality of concluding a fixed-term employment contract, finds that it was concluded by the employee involuntarily, the court applies the rules of the contract concluded for an indefinite period (clause 13 of the Resolution of the Plenum of the Armed Forces of the Russian Federation dated March 17, 2004 No. 2 “On the application courts of the Russian Federation of the Labor Code of the Russian Federation").

Art. 59 Labor Code of the Russian Federation: official text

Art. 59 Labor Code of the Russian Federation outlines the circle of persons with whom it is mandatory or possible to conclude a fixed-term employment contract. In the article we will tell you when this is required and when it is allowed, and also answer the most frequently asked questions related to the conclusion of such agreements and the application of norms Article 59 of the Labor Code.

What does the article talk about? 59 of the Labor Code of the Russian Federation with comments 2015–2016?

An employment contract (EA) for a specific period can only be concluded in cases where an open-ended agreement is not possible due to the nature of the work proposed or the circumstances in which it will be performed. If there are no grounds for limiting the contract to a time frame, it is recognized as concluded for an indefinite period. The employer's evasion from concluding a permanent contract in this case may entail liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation.

Art. 59 Labor Code of the Russian Federation with comments clearly defines the categories of persons and cases when the conclusion of an urgent TD is mandatory, and when it is allowed by agreement of the parties. We'll talk about them further.

In what cases, according to Article 59 of the Labor Code of the Russian Federation, is a fixed-term employment contract required (Part 1 of Article 59 of the Labor Code of the Russian Federation)?

Conclude a TD limited in time, Article 59 of the Labor Code of the Russian Federation requires with a candidate being employed:

• in the place of a temporarily replaced employee, whose place must be retained in his absence (a fairly common case is registration of an urgent TD in place of a maternity leave);
• to perform temporary work for a period of no more than 2 months;
• during seasonal work (for example, in agriculture);
• for work abroad;
• for work that is not typical of the candidate’s normal activities (they can be called one-time - reconstruction, installation, commissioning, etc.), as well as for a deliberately temporary (up to a year) expansion of the business;
• to an organization that was created for a predetermined period or to perform a predetermined job;
• to perform any work in cases where its completion cannot be determined by a specific date (for example, office renovation, if the completion date is initially unknown);
• for the duration of practice, vocational training, internship;
• for work in elected bodies;
• in the direction of the employment service for temporary and public work;
• for alternative civil service;
• in some other cases in accordance with the Labor Code of the Russian Federation or other federal laws.

When is it allowed to conclude an agreement with an employee for a limited period (Part 2 of Article 59 of the Labor Code of the Russian Federation)?

According to Art. 59 Labor Code of the Russian Federation fixed-term employment contract by agreement with the employee may be:

• employers (firms and individual entrepreneurs) – small businesses employing less than 35 people (less than 20 people in retail and consumer services);
• with age pensioners, as well as with persons who, for medical reasons, can only work in temporary jobs;
• “northern” companies if employment requires moving to the place of work;
• to carry out urgent work during various emergencies, both to prevent them and to eliminate the consequences;
• with persons elected to positions through competition;
• with creative workers of the media, cinema, theaters, circuses, etc. - according to the list from the Decree of the Government of the Russian Federation dated April 28, 2007 No. 252;
• with managers, their deputies, chief accountants, regardless of the legal form and form of ownership of the company;
• with full-time students;
• with crew members of sea vessels, inland navigation vessels and mixed (river - sea) navigation vessels registered in the Russian Maritime Register of Shipping;
• for part-time work;

• in other cases, in accordance with the Labor Code of the Russian Federation or other federal laws.

In these cases (part 2 Art. 59 TK) the nature of the work and the conditions of its performance do not play a role. The parties agree to temporary employment, which means that the TD can be urgent.

For how long is temporary employment possible?

The issue of the duration of temporary TD is regulated by Art. 58, not Art. 59 Labor Code. However, only a maximum of 5 years has been established. The minimum terms are not specified anywhere. Which means they can be anything. It all depends on the job for which a new, albeit temporary, member of the workforce is hired.

This period must be specified in the contract. At the same time, as follows from the rules Article 59 of the Labor Code of the Russian Federation, it can be determined not only by a calendar date, but also by some event. For example, the departure of the replaced employee, the end of work or the season, etc.

What conditions, in addition to the validity period, must be included in a fixed-term employment contract?

In the contract in mandatory all circumstances and reasons why it is limited in time should be described. This is directly required by Art. 57 of the Labor Code of the Russian Federation, which establishes requirements for the content of trade agreements in general and a fixed-term contract in particular.

A detailed procedure for drawing up an urgent TD and its sample can be found in the article.

Is a record of work under a fixed-term contract entered into the work book?

Of course they do. Work books of conscripts are filled out according to general rules.

However, an indication that the contract is urgent is not made in the admission record, since this is not provided for by the regulations governing the maintenance and execution of books.

Moreover, the reflection of this information may be regarded as a violation of labor legislation and entail liability under Art. 5.27 Code of Administrative Offenses of the Russian Federation.

The fact that an employee worked under a contract limited in time can only be found out if he is dismissed due to the expiration of the TD - when, in order to justify the dismissal, the employer refers to clause 2, part 1, art. 77 Labor Code of the Russian Federation.

Is it allowed to extend an employment contract concluded for a certain period?

The law provides for the possibility of extending an urgent TD, but in exceptional cases.

One of them is the pregnancy of a woman working under such an agreement. If the contract ends while the employee is pregnant, then, at her request and with appropriate medical confirmation, the urgent TD with her must be extended until the end of the pregnancy, and in the case of the birth of a child, until the end of the pregnancy. maternity leave(we are talking about maternity leave, not to be confused with parental leave!).

Read about calculating maternity leave.

The remaining cases of extension are specific and less common, they concern individual workers some educational organizations and athletes. Therefore, we will not consider them.

This exhausts the legally established list of situations when the contract can be extended. However, from the practice of the courts it follows that an extension is possible in other cases by agreement of the parties. The main thing is that the requirements of Art. 59 Labor Code of the Russian Federation.

Also, if it is necessary to continue cooperation with a “temporary worker,” it is allowed to renew the TD with him for a new term. This will not be considered an extension. The employee will be dismissed due to the expiration of the TD and hired again. But here it should be remembered that regular repeated re-conclusion of a short-term contract for the same work can lead to the fact that in the event of a dispute, the court recognizes the contract as indefinite. And this is fraught with the reinstatement of a person dismissed due to the expiration of the TD.

What is the procedure for terminating a temporary employment contract?

The rules for terminating urgent TD are specified in Art. 79 Labor Code of the Russian Federation. The moment of termination depends on how the term clause was formulated in the contract itself.

If specified exact date, the action of the TD ends with its onset.

A TD concluded for the duration of any work terminates when it is completed, a “seasonal” TD - with the end of the season.

The contract for replacing a temporarily absent employee will expire only upon his return to work.

IMPORTANT! The employer must notify the employee in writing of the upcoming dismissal at least 3 days before the termination of the contract. An exception is a TD concluded to replace a temporarily absent employee.

If the TD period has expired and neither party has taken any action to terminate the relationship and the employee continues to work, the working agreement automatically turns into an open-ended one.

How to properly register an employee hired to replace a temporarily absent one?

When hiring a person who will replace one of the employees during his absence, Labor Code-article 59- prescribes the conclusion of an urgent TD. The reasons for the absence of a specialist may be different:

• maternity or any other leave;
• long-term disability;
• off-the-job training, etc.

The length of his absence is not important either. But here the requirement for a maximum 5-year term of TD should not be violated.

We have already indicated above that such an agreement is valid until the moment the person being replaced returns to duty. Of course, at the time of registration of the replacement, the date of its return may be unknown. In this regard, you should pay attention to the wording of the term of the contract. It should be stated in it that the contract was concluded for the duration of the duties of X.H.H. (full name of the person being replaced) for the period, for example, maternity leave, until X.H.X returns to work .

An admission order is issued in a similar manner. So, in the column “Hire by” they indicate “before X.H.H. goes to work”, and in the line “Conditions of employment, nature of work” they write “for the duration of the duties of X.H.H., absent for the period of maternity leave.”

When the absent employee returns from vacation, a dismissal order is issued to the temporary employee under clause 2, part 1, art. 77 Labor Code of the Russian Federation.

How to conclude an agreement to perform temporary, seasonal or work outside the scope of normal activities?

Temporary, in the context of Art. 59 of the Labor Code of the Russian Federation, work that will take no more than 2 months to complete is considered. For example, this could be cleaning the area, landscaping, landscaping, etc.

The TD with the employee accepted for such work indicates:

1. Type of work. He is cited in the order of admission instead of the position.
2. Its start date.
3. The completion date, which in this case, as a rule, is determined not by a specific date, but by an event - the completion of the entire set of works. It is indicated in a similar order in the order.

Seasonal work is considered to be work that, for natural reasons, can only be performed during a certain period (season). The 46th chapter of the Labor Code of the Russian Federation is devoted to the work of seasonal workers. It establishes the possible length of the season - 6 months, but does not strictly limit it. Therefore, the season may last shorter or longer. The list of seasonal work, as well as their maximum duration, are established by industry agreements (Part 2 of Article 293 of the Labor Code of the Russian Federation).

Features of TD with employees for the season are as follows:

1. Of course, an indication of the seasonal nature of the work. If this is absent, the contract is recognized as unlimited.
2. It is possible not to indicate a specific date for the end of the employment relationship, since the end of the labor contract is associated with natural factors.

By analogy with the above, work that goes beyond the scope of normal activities or is associated with a temporary expansion of its scope is also formalized. The contract with those hired to perform it specifies the temporary nature, the start date of the work and the date or event with which the end of the work is associated. The latter is reflected in the acceptance order (for example, “until the end of reconstruction”).

Another possible case concluding an urgent TD - hiring people for a clearly defined job, the completion date of which cannot be predicted in advance. For example, to repair a building or premises. It is characteristic of such contracts that only an event can be indicated as their expiration date - the completion of the agreed work, which should be reflected in the text of the TD and in the acceptance order.

What to consider when concluding a fixed-term contract by agreement of the parties?

There are two key points here.

Firstly, the situation in which the contract is concluded must be included in the list from Part 2 of Art. 59 Labor Code of the Russian Federation. We cited it above. Affiliation individual situations the list may require documentary evidence. For example, a certificate from an educational institution, if the potential “fixed-term” employee is a full-time student.

Secondly, there must be mutual consent of the parties to conclude an urgent TD. If the fact that the employee was forced to agree to this suddenly comes to light and is proven, the contract may be reclassified by the court as permanent.

In terms of formalizing labor relations with “conscripts by agreement,” there are no special rules or differences from “conscripts by law.” The contract itself indicates its urgent nature and the reasons why the parties limited the labor relationship in time. The date or event determines the termination period of the contract.

The same information should be reflected in the admission order. IN general procedure is being drawn up work book and personal card.