An employment contract is a normative act that regulates the relationship between employer and employee. As a rule, the document is concluded for an unlimited period, and is terminated only at the proposal of one of the participants.
But in situations where the duration of cooperation is known in advance, there is a need to conclude a fixed-term employment contract . The most important conditions for its registration are:
- mandatory inclusion of the grounds according to which cooperation cannot continue indefinitely (for example, replacement of the main employee or seasonal work);
- introducing a clause about the date or event after which the cooperation ends (for example, the return of a key employee).
A fixed-term contract can be valid for up to 5 years. For employment relationships with a longer period of validity, an open-ended contract is concluded.
Differences from unlimited
A fixed-term contract is drawn up if a permanent one cannot be concluded according to the nature of the planned work. Traditionally, an unlimited time contract is drawn up, and a limited one is a rare exception. The main difference between a fixed-term employment contract and an open-ended one can be traced already in the name - a fixed-term contract is limited by its validity period, while an open-ended one is not limited to it. But there are several more features :
| Urgent | Indefinite | |
| Validity limit | The text of the document indicates the exact end date or event after which it is terminated. For example:
| No specific date is entered. The contract is terminated at the initiative of the employee or employer. |
| Reason for imprisonment | The basis that preceded the conclusion of the contract must be stated. | It occurs if a vacant position appears in the company, and the applicant fully meets the requirements. |
| Purpose of registration | Issued to perform specific tasks - replacing a permanent employee, performing temporary work. | Consists of cooperation on an ongoing basis and the performance of standard job duties. |
| Continuation of cooperation | The contract is converted into a contract with an indefinite period if, 3 days before the date specified in the text of the contract, the employer has not issued a termination order. | Initially implies long-term cooperation. |
Employers often use temporary contracts to their advantage, for example, so as not to look for reasons in the future to fire an employee. Such actions are prohibited and may lead to negative consequences.
Transfer of a fixed-term contract to an open-ended one
The main difference between a fixed-term contract and an ordinary one is its conclusion for a limited period, which should not exceed five years. If consensus is reached between the parties, its effect can be increased. Such changes are usually made when the following situations arise.
- The employee is pregnant and provided a medical report from the housing complex. Her employer can fire her only if the company closes. However, after giving birth, the contract is canceled and the woman loses the right to receive monthly child care benefits.
- The temporary employee continues to replace the main one, since he did not begin to perform his duties at the appointed time.
- The athlete was temporarily transferred from one employer to another, but decided not to return to his previous position. The new manager has the right to change the duration of the contract by extending it again for a fixed period.
A fixed-term contract can be extended if the employee did not have time to begin performing his duties within the agreed period, or the work specified in the agreement was not implemented in full.
The law also provides for the transformation of a temporary contract into a permanent one (but not vice versa), if circumstances so require. These include the following.
- A temporary employee continues to work at the enterprise and perform his functions properly, despite the fact that his contract has expired.
- There was a need for long-term cooperation with an employee hired for a short period.
- The condition of urgency is no longer relevant, and the person remains in the organization further.
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What is a civil law contract?
As a standard, conducting business involving the employment of individuals occurs in accordance with the Labor or Civil Codes. Therefore, along with employment contracts, there are also civil law ones.
A civil law contract is a normative act that stipulates the property interaction between the customer and the contractor. In this case, a working relationship does not arise between the parties in their usual sense, when an employee, under the supervision of an employer, performs an established labor function .
A civil contract reflects a specific service or work that the contractor agrees to perform for a fee.
Examples of such regulations are an author's contract, a contract or a paid service agreement.
Differences from civil law
Documents that seem similar at first glance have a number of differences. Let's look at them in the table:
| Fixed-term employment contract | Civil contract | |
| Type of work | A position has been identified that requires an employee to independently perform job duties. | The document specifies a list of services that the contractor must provide. There is no position as such. |
| The working process | The employee complies with the orders of his superiors in a timely manner. | The process itself does not matter, what is important is the required result. The customer may not control the work at all. |
| Routine | The work takes place in accordance with the company's regulations - according to the established regime, confirmed by the internal charter. | There is a start date for the activity and a planned end time. The contractor has the right to work at any suitable time - the main thing is that the work is completed on time. |
| Working conditions | The manager creates comfortable conditions for employees and provides them with all the necessary materials. | The contract may stipulate any conditions, but are not required. |
| Execution Process | It is assumed that the employee himself does all the work. | The Contractor has the right to involve any third party in performing the work. |
| Salary | The employee receives a monthly salary in a lump sum or in advance; the salary cannot be lower than the minimum wage. | Receipt of payment is negotiated individually - either the full amount after the work is completed, or an advance before the start of work. Payment does not depend on the minimum wage level. |
| Tax withholding | The accounting department withholds personal income tax, taxes to the medical and social insurance funds, as well as to the pension fund. | Personal income tax is withheld; taxes to the health insurance fund and pension fund may sometimes not be collected - for example, in case of a property rental agreement. If necessary, the contract includes a clause on insurance in the event of a work-related injury: then the tax is also paid to the Social Insurance Fund. |
| Guarantees from the employer | The manual provides a complete list of guarantees in accordance with the Labor Code. | There are no guarantees other than contributions to the pension fund. However, the period of contract work is included in the length of service. |
| Documentary support | A work record book is maintained for each employee, and an order for hiring and dismissal is created. Work experience is considered. | No documents other than the contract are provided. Work experience during work is not taken into account. |
| Employment | Registration takes place in accordance with the requirements for the employee, however, according to the Labor Code, there is a rule of equality by age, gender and nationality. | The employer may refuse to formalize the contract without giving reasons. |
Of the general features, only a limitation on the duration of work can be distinguished - in both cases, the date of employment and the date (or event) of completion of work can be specifically established. However, a fixed-term employment contract cannot be concluded for a period of more than 5 years, but a civil law one can.
What common
Both documents in question are used in similar situations and have common structural elements. Both fixed-term and indefinite types of TD regulate the relationship between employer and employee, a list of their rights and obligations. Both documents have legal force, which means they provide the opportunity to refer to themselves in the event of disputes between the parties regarding the work performed or provided src=”https://otlichaet.com/wp-content/uploads/2019/10/trudovoj_dogovor_po_sovmestitelstvu.jpg” class=”aligncenter” width=”837″ height=”598″[/img]
Advantages and disadvantages
Like any employment agreement, a fixed-term employment contract has pros and cons for both parties. Let's look at the negative aspects:
For employee
When signing a limited-term contract, a citizen must remember what awaits him as a result:
- Simplified dismissal procedure. The employee is dismissed after the end of the contract period or after completing the work specified in the document.
- Shortened dismissal period. The employee is notified either 3 days before the end of work, or the day before the main employee leaves (Article 79 of the Labor Code of the Russian Federation).
Otherwise, the set of guarantees is similar to an open-ended contract - the employee also receives sick leave and vacation payments. Only compensation is not calculated for the last 12 months, but the average salary is calculated from the period from the moment of employment to the month before going on sick leave or vacation.
For the employer
The disadvantages of fixed-term contracts for the employer include:
- Pregnancy of an employee on a temporary contract. In such a situation, it will be possible to fire her before the end of her pregnancy in the only case - when the company is closed.
- If the employer does not warn the employee in time about the upcoming expiration of the contract, the cooperation automatically becomes indefinite. At the end of the contract, the manager no longer has the right to dismiss the employee.
Example. concluded with Petrov A.N. fixed-term employment contract for 2 years. The completion date was set for May 5, 2020. However, the manager did not warn the employee in advance about the end of the contract, and Petrov continued to work. The manager only remembered his mistake on May 10, and notified the employee that the contract was being terminated due to the expiration of validity under Article 79 of the Labor Code of the Russian Federation. In response to this, Petrov stated that no warning was received 3 days before the completion of the contract, therefore, according to Article 58 of the Labor Code of the Russian Federation, the contract becomes unlimited. The manager agreed with the employee’s opinion and, in order to avoid litigation, did not fire him.
A pregnant employee, even after the expiration of the contract, has the right to write an application for continued cooperation, and the employer will have to approve it. True, only until the end of pregnancy - after giving birth, the employee quits.
Having combined all the information, we will briefly define the features of fixed-term employment contracts - both for the employee and for the employer.
Advantages:
- Providing an employee with full-time employment, albeit temporary. Work under a fixed-term contract comes with the same guarantees as an open-ended contract.
- The company does not have to expand its staff to carry out short-term work. If a permanent employee is dismissed, compensation will have to be paid, and hiring an employee for a temporary position will avoid unnecessary costs.
Flaws:
- The collaboration will inevitably end at some point.
- If the text of the document was drawn up incorrectly, the employee has a chance to convert the cooperation into an indefinite period in court. This causes great inconvenience to the manager, especially if a temporary employee was hired during the absence of the main one.
Termination of an employment contract
According to Article 79 of the Labor Code of the Russian Federation, a fixed-term contract is terminated upon expiration. The employee is warned about this in writing, no less than three calendar days before dismissal. Exceptions to the rules are situations when the validity of this type of contract expires when it is concluded for the period of performance of the duties of an employee who is absent from the enterprise.
Termination of an employment contract means the end of the working relationship between the two parties. This is an employee of the enterprise and his employer. In the law you can find synonyms for this concept, for example, termination of employment relationships or dismissal of an employee. It is important that the termination of the contract occurs strictly on the grounds specified in the Labor Code of the Russian Federation. This guarantees the rights of workers. Each of them quits his job strictly on the grounds of the law. In addition to the Labor Code of the Russian Federation, the grounds for termination of employment contracts may also be contained in other laws.
Articles of the Labor Code of the Russian Federation provide a non-exhaustive list of grounds for termination of an employment contract:
- agreement of the parties (78th Art.);
- expiration of the employment contract (Article 79);
- termination of an employment contract at the initiative of the employee (Article 80);
- termination of an employment contract at the initiative of the employer (Articles 71 and 80);
- transfer of an employee to another employer at his request;
- employee refusal to work due to a change in the form of ownership of the enterprise;
- employee refusal to work due to changes in the terms of the employment contract, etc.
In practice, the safest path to dismissal is an agreement between the parties. This basis assumes that the employee is ready to terminate the employment relationship and the employer is not against doing so. In this situation, the contract is terminated within the period agreed upon by the parties, at almost any time convenient for them. An agreement to terminate an employment contract does not exclude the possibility of dismissing an employee on his own initiative, and if there are grounds for this, also on the initiative of the employer. Dismissal for other reasons can cause problems for both the employee and his employer.
Pitfalls for the employer
The greatest risk lies in the correct drafting of the text of the document, because the slightest mistake can lead to the fact that the contract will be considered indefinite . It is important for the employer to remember that:
- You cannot issue several fixed-term contracts one after another with the same employee if the job function does not change.
- The text of the document always states the reasons for its preparation (Article 57 of the Labor Code of the Russian Federation) and the date when it should be completed.
- A fixed-term contract cannot be valid for more than 5 years.
If the above rules are not observed, cooperation officially becomes permanent. Dismissal of an employee if the contract is incorrectly drawn up is illegal, therefore, by court decision, he is reinstated in his position.
The most egregious cases of violation of temporary contracts may be subject to fines. Private entrepreneurs are charged a fine of up to 5,000 rubles, and companies – from 30 to 50 thousand rubles. according to clause 1 of article 5.27 of the Code of Administrative Offenses of the Russian Federation. If the employee registration procedure is repeatedly violated, the manager is removed from office for up to 3 years.
Example. a programmer was needed to perform a specific task - creating a website and promoting it. There was a vacant position on the staff, but the employer decided to enter into a fixed-term contract. The employee was hired and the contract was signed. After the work was completed efficiently, the manager announced the termination of the contract. However, the new employee, citing incorrect execution of the contract, continued to work.
Lawyers, having studied the text of the contract, found an inaccuracy: it did not indicate that after specific work was completed, cooperation would automatically terminate.
Therefore, the document was officially considered indefinite, and the new employee was right. In contact with
Useful video
A fixed-term employment contract is an agreement between an employee and an employer concluded for a certain period of time. In accordance with the requirements of the law, a reason is required to establish this particular form of relationship.
An open-ended employment contract is a written agreement between the parties to the employment relationship, concluded for an indefinite period. This form of work is suitable in cases where an employee is needed for a permanent job, and not for a one-time project.
The name of these agreements alone reveals their main differences. A fixed-term employment contract specifies the limits of its validity, while an open-ended one does not. In addition, the difference is expressed in the additional information that must be in the document.
In accordance with Art. 57 of the Labor Code of the Russian Federation, a fixed-term employment contract must necessarily indicate the reason for establishing legal relations in exactly this form. A fixed-term contract is appropriate when an employee is selected to carry out specific tasks.
