A fixed-term employment contract becomes an indefinite additional agreement. We convert a fixed-term employment contract into an open-ended one. Transfer order: fixed-term employment contract

Transfer of an employee to a fixed-term employment contract at the initiative of the employer

The Labor Code of the Russian Federation does not contain rules clearly regulating the procedure for transferring an employee from an open-ended employment contract to a fixed-term one. But it is impossible to simply convert an open-ended contract concluded for an indefinite period into a fixed-term one.

An employer can transfer an employee to a fixed-term contract through dismissal, an additional agreement to an existing contract, or by appointing a manager to a new position through the conclusion of a new employment contract.

Labor legislation does not limit the manager’s rights to change the terms and content of the employment agreement. But the legislator prohibits the inclusion of conditions in the contract that worsen the employee’s position in the workplace compared to what they were before. In turn, Article 72 of the Labor Code of the Russian Federation indicates that changing the terms of an employment agreement and introducing a term clause into it can only be agreed upon between the parties according to the requirements established by current laws and local legal documents. Only with the consent of the employee is it possible to transfer him to a fixed-term type of work.

There are two options here:

Signing an additional agreement to the employment contract. This document must indicate a change in the employee’s job responsibilities. The additional agreement must record the change in the terms of the term. When signing an agreement, you must adhere to certain rules:
if possible, then it is necessary to include in the additional agreement a condition not only about changing the term, but also about conditions that improve the employee’s situation;
the modification of the period should cover a long period taking into account the effective management of the staff.

The HR employee must carefully analyze the issues related to the approval of the draft agreement with the employee. At the same time, it is important to record the procedure for agreeing to familiarize an employee with the document and comply with the deadlines for notification of changes in the terms of the employment agreement. A notice of changes in terms and conditions is given to the employee against signature. The text of the agreement contains the signatures of the employer and employee indicating their personal data. The agreement must be certified with the seal of a legal entity. The agreement is printed in two copies. One is given to the employee of the enterprise, the second remains in the personnel department.

Dismissing an employee and concluding a new employment contract (fixed-term) is a safer route than the first. But its disadvantage is that this procedure takes more time, requires the preparation of new personnel papers and the calculation of the employee.

IMPORTANT: A fixed-term employment contract concluded with an employee must be terminated in a timely manner. Otherwise, it is automatically extended into an indefinite period. And it will be extremely difficult to transfer it back to urgent status.

No deadline - priority

As such, the transfer from an open-ended contract to a fixed-term one is not regulated by law. At the same time, it is not directly prohibited. And if we proceed from what is allowed, here experts disagree on how to carry this out according to the documents.

The legislation presupposes the right to employment under a contract, first of all, for an indefinite period. At the same time, the Labor Code of the Russian Federation establishes mandatory requirements for the employer in terms of justification for hiring employees under fixed-term contracts.

The legal basis for preparing a fixed-term contract is strictly regulated by Articles 58 and 59 of the Labor Code of the Russian Federation. According to their norms, a contract for a certain period is possible only on the grounds expressly provided for by the legislator. For example:

the labor function has its own characteristics;
execution of instructions from the employer when traveling abroad;
performing non-core activities of the company, etc.

But even in the case of hiring a person for a fixed-term employment contract on the grounds provided for by the Labor Code of the Russian Federation, the employer must have clear justification for concluding the contract for a specific period. This will allow you to avoid possible labor disputes and prove (including in court) the validity of the contract with a specific period.

This rather strict and detailed regulation of the issues of concluding a fixed-term and open-ended contract is due to the fact that the legislator declares a position on weaker protection of workers under conditions of employment under a fixed-term contract. At the same time, the law directly states that a fixed-term employment contract can reduce the level of guarantees for the employee (Part 6, Article 58 of the Labor Code of the Russian Federation).

Transfer of an employee to a fixed-term employment contract at the initiative of the employee

It is logical to assume that the employee’s initiative related to the transition from an open-ended employment relationship to a fixed-term one is associated with his consent. The most profitable path for an employee is his dismissal and subsequent signing of a new contract (fixed-term). When terminating an old, open-ended contract for an employee, it is necessary to pay him compensation for unused annual leave or provide him with rest and only then dismiss him. In the work book, the personnel employee makes an entry that the employee is fired. When transferring an employee, he must be notified in advance, two months in writing. After this, the employer draws up a new fixed-term employment contract. At the same time, personnel papers are drawn up again, including an application for employment. The work experience begins anew, a new personal card is created for the employee of the enterprise. A record of hiring is made in the work book. If this is necessary, then by order of the head of the enterprise, the vacation schedule and staffing table are changed.

How to carry out the procedure safely?

Despite the fact that from a legal point of view there is no prohibition on such a transfer, there is no clear permission to establish urgency in relation to an indefinite act. For this reason, lawyers advise taking a safer route - ending the relationship with the employee and rehiring him, but on the basis of a fixed-term agreement. This option of action has its own logic, including the transfer of an open-ended contract to a fixed-term one presupposes the consent of the citizen, but in the case of dismissal and a new job, no problems should arise.

This process will entail additional expenses, including money and time, but at the same time, from the legal side, the transition to a fixed-term contract will be clear.

Transfer of an employee to a fixed-term employment contract by agreement of the parties

Agreement between the parties in this situation is necessary. It is logical to assume that an employee working under an open-ended employment contract will not be satisfied with the transition to a fixed-term one. An employee hired under an open-ended contract does not need to be transferred to a fixed-term contract. If he does not want to work, then he can resign of his own free will, by law giving the employer 2 weeks notice of his desire. Pensioners can resign at any second; the two-week rule does not apply to them.

Let us pay attention to Article 72 of the Labor Code of the Russian Federation. It involves changing the terms of the employment contract by agreement between the parties. But this change is possible in the order of transfer, or it is due to a change in working conditions of an organizational or technological nature. Then the open-ended contract can be converted into a fixed-term contract by agreement between the parties.

To help, Article 74 of the Labor Code of the Russian Federation, which establishes that a contract can be changed by agreement of its participants only if, for objective reasons, it is impossible to maintain the previous conditions of a person’s labor activity due to changes in production technology or reorganization of production activities.

Changing the terms of the employment agreement requires the employer to perform certain actions related to warning employees in writing 2 months in advance, offering vacancies, transferring the employee there, but only with his consent. If an employee does not want to work under new conditions, the employment agreement with him is terminated under Article 77, clause 7 of the Labor Code of the Russian Federation. The article provides for the payment of severance pay. If an employee refuses to work under a fixed-term employment contract, he cannot be forced to do so.

How to transfer an employee and change a fixed-term contract to an open-ended one?

When preparing the document, we pay attention to the following points:

Sometimes a fixed-term contract cannot be converted into an open-ended one (for example, when performing seasonal work). In this case, in order to transfer the agreement to the status of an indefinite term upon expiration of its validity period, it is advisable to conclude a new contract, without indicating in it the seasonal nature of the work.
The employee must give his consent to the transfer of a fixed-term contract to the status of an open-ended one. Consent is formalized in the form of the employee’s signature in an additional agreement (the employer’s signature in the document alone is not enough).
If, in addition to the term of the agreement, the position or place of work changes, this data must be indicated in the additional agreement.
The document is drawn up in two copies, one for each party to the legal relationship.

Transfer of an employee to a fixed-term employment contract during maternity leave

Article 261 of the Labor Code of the Russian Federation protects women who are pregnant and on maternity leave. The fixed-term contract under which they worked cannot be terminated with them on the grounds of expiration. An exception to the rule is when the company where the maternity worker works is liquidated. Despite the fixed-term nature of the contract, such an employee can count on payments:

maternity benefits;
a one-time benefit for a woman who registered early.

In practice, in place of an employee on maternity leave, they take another employee and conclude a fixed-term employment contract with him. He works until the main employee returns from maternity leave. If a woman on maternity leave worked under a fixed-term contract, then upon returning from maternity leave, she will be fired if the agreement expires. If the contract was concluded on an indefinite basis, then it will take its place.

Form of an additional agreement on the transfer of a fixed-term contract to an open-ended one

The agreement has a standard form and includes the following mandatory information:

title of the document (additional agreement No. N on amendments to the employment contract No. N dated dd.mm.yyyy);
date of drawing up the paper, place of conclusion of the agreement;
information about the parties to the agreement;
subject of the agreement (the parties to the agreement agree to change some provisions of the fixed-term employment contract No. N dated dd.mm.yyyy between citizen <A> and company <B> - the employee is hired for the position <B> with a salary, this agreement is considered unlimited with dd.mm.yyyy);
the previous sections and conditions remain in place;
details, personal signatures, date of conclusion of the contract.

Transferring a pensioner to a fixed-term employment contract

The Labor Code provides clear grounds for terminating an open-ended employment contract. Often, employers, based on the age of the pensioner, offer him to switch from an open-ended to a fixed-term contract. How legal is this? So, the law establishes several grounds for termination of an open-ended employment contract:

agreement between the parties;
employee initiative;
employer initiative.

Before concluding a new fixed-term contract, it is necessary to terminate the previous one. Two types of agreement cannot exist at the same time. There is also the option of concluding an additional agreement to the existing contract. The additional agreement specifies the period during which the pensioner works. But there is one nuance here: the pensioner must agree to sign an additional agreement or resign with the signing of a fixed-term, new contract. If a pensioner has entered into a fixed-term contract, it is logical that there is no guarantee that after its expiration the employment relationship will continue with him. If a pensioner is against transferring a contract from an open-ended to a fixed-term one, the employer has no reason to insist on this. But he can be dismissed due to staff reduction at the enterprise, as a result of his guilty actions, as well as in accordance with Article 81 of the Labor Code. Let us recall the provisions of the article:

liquidation of the enterprise, termination of the work of the individual entrepreneur;
inconsistency of the employee with the position held and the work performed based on the results of his certification;
change of owner of the company - applies to managers and chief accountants;
the presence of a disciplinary sanction, failure to fulfill labor duties by an employee without good reason;
one-time gross violation of official duties;
absenteeism;
absence from work for more than 4 hours in a row;
appearance of an employee under the influence of alcohol or drugs;
disclosure of commercial and state secrets;
committing an immoral act incompatible with the nature of the work performed by the employee;
providing the employer with false documents when drawing up an employment contract, etc.

When concluding a fixed-term employment contract, one point should be understood. If the parties have reached an agreement on the urgent nature of the employment agreement, then the applicant must voluntarily agree to this. The same applies to an employee of an enterprise who previously worked on an open-ended agreement. Voluntariness means that both parties - the employee of the enterprise and his employer - prefer to establish the duration of the employment relationship, limiting it within a time frame.

Thus, they voluntarily refuse to formalize an indefinite employment relationship. The fact that the parties entered into a fixed-term agreement on a voluntary basis is confirmed by their signatures. They are placed on a fixed-term contract; a separate agreement is not required. A fixed-term employment contract must have a term clause. In addition, it is important to emphasize in the contract that it is urgent. It would be nice to back this up with some basis. For example, an employer hires a student who is studying full-time at a university. This fact must be confirmed by an appropriate document, for example, a certificate from a university stating that such and such a student is registered there.

It will not be possible to rewrite a contract for an existing employee from an open-ended to a fixed-term one. In addition, such an action by the employer would be contrary to the law.

There are two possible options here. First, the employee must agree to change the contract term. Secondly, the employer has two options with the employee’s consent: write an additional agreement or dismiss the employee under the old contract and sign a new, but urgent one. The algorithm of actions of personnel specialists is important here, since everything must go according to the law.

Sample of an open-ended employment contract

For detailed information about the provisions of the document, please click here:

Example of a contract

The sample will help both the manager and the subordinate to follow the correct procedure for drawing up and terminating a legal act.

Application for an open-ended employment contract

Before entering into a contractual relationship, you need to write a statement. An employee can use the services of online sources or apply here:

Transfer of an employee to a fixed-term employment contract upon layoff

When reducing staff, the employer is obliged to offer employees vacancies provided for in the company’s staffing table, if a fixed-term contract is concluded for these vacancies. If such places are not available at the enterprise, then the employer is not obliged to offer anything. If a person is fired without offers from the employer, and a vacancy remains in the organization, you can go to court to protect your rights, since Art. 81 Labor Code of the Russian Federation.

Drawing up a fixed-term employment contract does not contain any surprises. Its creation and signing is formalized by an order, which indicates the grounds for the conclusion. An entry is made in the work book that the employee has been hired, but this document does not indicate information that the person has been hired on a temporary basis. The law does not give permission for this, in particular, the Labor Code of the Russian Federation and the Instructions for filling out work books. If this entry is made in the work book, the organization is held administratively liable.

Situations that do not allow you to make a transfer

Despite the fact that in most cases a transfer to a permanent job from a temporary one is possible, there are a number of circumstances that do not allow this procedure:

The employee's work is seasonal.
The employee entered into a fixed-term contract with a company created for a certain period to achieve a specific goal.
Other cases depending on the situation at the enterprise.

If an employee’s duties can be changed or extended, for example, when an employee for whom temporary work was performed is dismissed, then a fixed-term document can be changed to an indefinite one.