Employment contract and employment contract - differences, what is the difference

An employment contract is a fundamental element of labor law.

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It can be viewed from three perspectives:

as an agreement on the performance of a certain labor function, concluded between an employee and an employer;
as an entire institution of labor law, the norms of which determine the procedure for employment, transfer to another position and dismissal;
as a legal fact of establishing labor relations.

The definition of an employment contract is given in Article 56 of the Labor Code of the Russian Federation: this is an agreement under which the employer is obliged to provide the employee with a workplace, provide appropriate working conditions, pay him wages on time and in full, and the employee, in turn, undertakes to fulfill his labor duties and comply with those established by the employer inner order rules.

Labor Code of the Russian Federation

The concept of an employment contract

The term “contract” does not appear in current labor legislation.

Previously, this word was mentioned in the Labor Code in the meaning of “agreement” - the wording “employment agreement (contract)” was used, but since 2002 the Labor Code has been abolished.

Many people think that there are no special differences between a contract and a fixed-term employment contract, but this version is erroneous, since the Labor Code allows for the conclusion of both an open-ended employment agreement and a time-limited one.

Military personnel, employees of internal affairs bodies and other government agencies enter into contracts.

This is evidenced by the relevant departmental regulations.

The procedure for concluding, executing and terminating the contract is fully consistent with the contractual terms.

The document clearly outlines the place of work, conditions, position held, employee specialization, rights of the parties, methods of remuneration, additional remuneration and other conditions.

The contract may end in the following situations:

expiration;
violation of labor protection rules;
violation by an employee or employer of certain clauses of the agreement;
failure by an employee to fulfill labor duties or violation of discipline.

Is this document legal?

This question often arises due to the fact that such a term as an employment contract, as already noted, has not appeared in labor legislation since 2002. However, there is also no prohibition on concluding a contract.

How to draw up an employment contract with a part-time worker? Read about it on our website. In what cases is it possible to terminate an employment contract at the initiative of the employer? See here.

Difference in legislation

Now let’s look at the difference between these official documents from the legislative perspective:

Employment contract and employment contract - what are the differences? The contract is fixed-term and is concluded for 3–5 years . After which the employer may not renew the work. Regular employment has an open-ended basis and can only be terminated due to the liquidation of the enterprise.
The contract can be terminated at any time by notifying the employer in advance. The contract cannot be broken ; it must be worked out in full. Only when there is a question about its extension, the parties may not renew it.
The contract may stipulate additional conditions to protect the parties. This could be an increase in wages, a change in working conditions, or possible additional financial responsibility.

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What is the difference?

The main difference between a contract and an agreement is that the first can be concluded for a specific period (for a period of one to five years).

After this time, the employer can either extend the period or terminate the contract.

Early termination is permissible if the employee violates the terms specified in the agreement, or on the employer’s own initiative.

In the latter case, the employee is paid compensation.

An employment contract is concluded for an indefinite period of time.

An employee can resign at any time, and the employer has the right to terminate the employment relationship only on the grounds prescribed in the Labor Code of the Russian Federation.

A contract, unlike an agreement, always contains incentive measures: additional days of vacation, increased wages.

This type of agreement provides guarantees regarding social security (for example, the provision of housing to an employee).

Thus, the difference between a contract and an agreement is as follows:

Conclusion period: the contract is concluded for an indefinite period, the contract is concluded for a definite period.
An employer can terminate an employment relationship under a contract early, but under a contract an employee can be dismissed only on the grounds provided for by the Labor Code of the Russian Federation.
The contract cannot be renewed after its expiration. The contract assumes unlimited working time.
Under the contract, work activity can be additionally stimulated.

"Agreement" or "contract"?

How to call an agreement concluded in accordance with Federal Law dated April 5, 2013 N 44-FZ: “agreement” or “contract”? Olga Efimova and Arkady Serkov, experts from the GARANT Legal Consulting Service, answer.

The local administration entered into an agreement with the service provider for an amount not exceeding 100 thousand rubles, but the treasury indicated that it was not an agreement that should have been concluded, but a contract. Is this statement true?

According to clause 3, part 1, art. 1 of the Federal Law of 04/05/2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (hereinafter referred to as Law N 44-FZ) this Law regulates relations, in part, among other things, relating to the conclusion of a civil contract, the subject of which is the supply of goods, performance of work, provision of services (including the acquisition of real estate or rental of property), on behalf of the Russian Federation, a constituent entity of the Russian Federation or a municipality, as well as a budgetary institution or other legal entity in accordance with Part 1 1, 4 and 5 tbsp. 15 of Law No. 44-FZ (hereinafter referred to as the contract). That is, in fact, the concept of “contract” for the purposes of Law N 44-FZ is synonymous with the concept of “civil contract concluded by the customer, guided by Law N 44-FZ”.

Law No. 44-FZ does not contain any rules requiring that a document containing the terms of a contract (agreement) be called a “contract” or “agreement”.

It should be noted that sometimes certain types of agreements are called contracts in legislation in order to separate them from other agreements. In particular, in the Civil Code of the Russian Federation, on which Law No. 44-FZ is also based (Part 1 of Article 2 of this Law), state and municipal contracts refer to agreements concluded, respectively, by state and municipal customers for the supply of goods ( clause 1 of article 525 of the Civil Code of the Russian Federation) and performance of contract work for state and municipal needs (clause 1 of article 763 of the Civil Code of the Russian Federation).

However, from Art. 431 Civil Code of the Russian Federation, pp. 1, 6 tbsp. 13 of the Arbitration Procedure Code of the Russian Federation it follows that when considering a contract, the court will evaluate the contract primarily based on the essence of the relations regulated by it. That is, from the point of view of law, what matters is not the name of the document (“agreement” or “contract”) and not the terminology used in it, but the essence of the relations regulated by it.

Consequently, any contract concluded by a state or municipal customer, including a government institution, under which construction, design or survey work is carried out, will always qualify as a state or municipal contract for the performance of contract work for state needs - and the provisions of paragraph will apply to it 5 “Contract work for state or municipal needs” of Chapter 37 “Contracting” of the Civil Code of the Russian Federation. And any contract for the supply of goods concluded by a state or municipal customer, including a government agency, will be qualified as a state or municipal supply contract and the norms of paragraph 4 “Supply of goods for state or municipal needs” of Chapter 30 “Purchase and sale” will be applied to it. » Civil Code of the Russian Federation. In turn, regardless of how the agreement concluded by a budgetary institution is called (“agreement” or “contract”), the above norms will not apply to it, but the provisions of Law No. 44-FZ and the norms of the Civil Code of the Russian Federation governing the appropriate type of civil contract that does not contradict Law No. 44-FZ.

Thus, naming an agreement concluded in accordance with Law No. 44-FZ “agreement” or “contract” has no legal meaning.

The texts of the documents mentioned in the experts’ response can be found in the GARANT legal reference system.

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What's better?

An employment contract is not limited by any terms and is regulated by the Labor Code - this is its main advantage.

The employment contract clearly defines information about the employee and the employer, the place of work and the position held, the obligations and rights of the parties, the rest schedule, the terms of remuneration, and the provision of a social package.

An employment contract can be terminated by agreement of the parties, due to force majeure situations, due to the liquidation of the organization, in case of improper performance of duties by an employee, violation of discipline, etc.

A significant drawback of an employment contract is that the employee’s legal rights can be grossly violated, that is, the employer can force him to resign of his own free will.

In the case of a contract, this is less likely because the employer has an interest in the employee.

This type of agreement guarantees almost 100% that the employee will not be fired throughout the entire duration of the contract.

What are included in the mandatory terms of an employment contract? Read our article. What can be the term of a fixed-term employment contract? Find out here.

Is an employment contract possible between individual entrepreneurs? See here.

Contract of employment

The agreement has a civil law format . An employment agreement is a civil transaction or a contract for the provision of services. Often, such relationships include contracts or work to provide services. The participants here are also different. This is the employer and contractor - the person who undertakes to complete the work on time. Fulfillment of assigned duties has a short-term, one-time, one-time format.

Employment agreement and employment contract - what is the difference? If, according to ordinary working relationships, payment is made for the work provided for in the agreement, then here, by agreement between the customer and the contractor, the final result obtained is paid for - the subject of the agreement between the participants.

Is it possible to transfer from contract to contract, and vice versa?

The question of how to transfer from an employment contract to a contract worries many citizens who want to work for a limited period of time.

Article 72 of the Labor Code of the Russian Federation allows for changes to the terms of the contract based on the written consent of the employee and the employer. Thus, before the end of the contract, the parties can adjust its duration.

If an employee employed under a fixed-term contract works under the terms of an open-ended contract, it becomes necessary to change at least two conditions: on labor duties and on the period of validity of the agreement.

The Labor Code allows the parties to change several points of the agreement at once.

When transferred to another position, the employee’s functions change, which means the salary, work schedule, etc. change.

Terms that change during translation will be stated in writing.

The option of dismissing an employee from his previous place of work and signing a new contract cannot be ruled out.

Employment contract

This is an agreement between an employer and an employee , on the basis of which one party, the employee, undertakes to fulfill the duties assigned to him, as well as to comply with the work regime, and the employer to provide the necessary working conditions, as well as ensure payment of wages on time.

Legal relations can be concluded in the following
forms :

Written - the conclusion of an official document, as a rule, is carried out in this form. All rights and obligations of the parties are stated here. The agreement between the parties is printed in several copies and is kept by both parties;
The oral form involves writing a statement from the worker and issuing a written order for the enterprise. In this form, there is a general routine and instructions that the manager must introduce to the employee within a certain time.

We recommend reading: the concept of human rights and responsibilities.

Elements of the content of a government contract

A state contract, on the one hand, has all the features and characteristics of a regular contract, but, on the other hand, it has a number of features, according to Art. 34 44-FZ, in particular:

condition on the firmness of the price;
mandatory provisions on the supplier's liability for non-fulfillment or improper fulfillment of obligations;
display of the order and terms of payment, acceptance;
requirements for monetary security by the supplier of its obligations (and terms of return), on the possibility of introducing banking support;
existence of requirements to provide information about involved subcontractors;
availability of the possibility of concluding life cycle contracts;
special procedure for refusing to fulfill conditions.

All these features take into account standard documents developed by authorities, posted in the Unified Information System (UIS) and mandatory for use when placing orders in the relevant industries. To date, the EIS library contains 9 standard contracts, including for the supply of medical devices, radio-electronic products, provision of exhibition and fair activities, technical maintenance of vehicles, etc.

Main characteristics of contracts

Let us consider the main features and characteristics of contracts within the framework of Russian legal practice. As we found out above, this is the name of the mutual agreement of the participants to regulate any relations between them. All contracts have a number of common characteristics:

Any contract begins, modifies or eliminates legal obligations between the parties signing it.
They can be either oral or written.
Any legal entity can sign various types of agreements: individuals, individual entrepreneurs, legal entities in any composition and ratio.
This type of agreement can be concluded by two or more parties.
Agreements must contain all obligations of the parties.
Most often they are concluded for an indefinite period or in circumstances where the concept of a term is not important for the parties.
Both (or more parties) have the right to terminate the contract, unless otherwise stated in the text of the document.

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