What conditions must be included in an employment contract?

Determination of the essential terms of the contract

In Russian labor legislation, at least if we talk about legal acts at the federal level, such a term as “essential terms of an employment contract” does not appear. At the same time, it is widespread in the practice of communication between lawyers, HR specialists, and trade union organizations. Employees themselves, who are interested in their rights, also often use this term when communicating with the employer.

Essential terms of an employment contract are an unofficial concept, but practically significant for the corresponding category of legal relations. Modern lawyers believe that their list is set out in Article 57 of the Labor Code of the Russian Federation. The concept of essential terms of the contract is thus identified with the “mandatory” clauses of the relevant agreement between the employer and the employee - if we consider the wording present in the Labor Code of the Russian Federation. Let's study their list in more detail.

Optional Terms

The parties may include additional conditions in the employment contract, but they must not violate the rights of the employee. To these, according to Art. 57 of the Labor Code of the Russian Federation, include:

• clarification of a specific place of work. For example, you can specifically indicate in which structural unit the applicant will work;
• about the presence or absence of a probationary period. If the employer decides to set a test for the applicant when applying for a job, then he must indicate its duration, but not more than three months. The amount of wages during the probationary period cannot be lower than that established for the main period of work;
• on non-disclosure by a new employee of confidential information - state, official, commercial or other secrets;
• nuances of mandatory service after completing training, which was paid for from the employer’s funds;
• if there is additional insurance, it is necessary to specify the conditions and types of insurance;
• Some employers offer their employees assistance in improving their social and living conditions. If this is practiced, then the nuances can also be reflected in the contract;
• on additional non-state support for this employee. Some employers offer their employees to enter into an agreement with a non-state pension fund to accumulate part of their pension. In addition, the largest Russian companies have their own non-state pension funds. The nuances of cooperation with such a fund can be specified in the employment contract.

List of essential conditions

So, the essential terms of an employment contract, by which lawyers understand “mandatory” clauses of the contract, are presented in the Labor Code of the Russian Federation in the following set.

This is the employee's place of work. If an employee comes to work at a branch or representative office of a company that is located in a different area, then the coordinates of the corresponding facility are indicated.

This is a human labor function. That is, this paragraph records the essence of the work performed in relation to the provisions of the staffing table in the company, the features of the profession or specialization. The name of the position fixed in the employment contract must comply with the standards contained in qualification reference books or professional standards - if it is assumed that the employee occupying it should receive certain benefits.

This is the start date. If an employee signs a fixed-term contract, then the duration of its validity is recorded, as well as the factors determining that the contract is of this type. It is important that the circumstances of concluding a fixed-term contract comply with the provisions of federal law.

These are the terms of remuneration. They can be fixed in the form of a tariff rate, official salary, various allowances or, for example, incentive transfers and additional payments.

This is the time regime for an employee to be at work, as well as his time of rest - if the relevant aspects of the legal relationship with a specific specialist are not similar to the general rules adopted by the company, which apply by default to all employees.

These are guarantees and compensation provided for when working in hazardous working conditions. Unless, of course, this requires a specific job position. It is also necessary to include provisions in the contract that characterize the specifics of these conditions.

These are statements that define the nature of the work being performed. He may, for example, be traveling - and if this is necessary, the corresponding provisions must be included in the employment contract.

These are working conditions specific to a particular workplace.

Essential terms of the employment contract are also provisions in accordance with which the rules of social insurance of the employee are fixed in accordance with the requirements of federal legislation.

Legal acts regulating labor relations may stipulate circumstances that require the inclusion of other wording in contracts.

What conditions will be significant?

Art. 57 of the Labor Code of the Russian Federation names the following conditions as essential, that is, those that cannot be avoided:

1. The place where the work will take place . The name of the company must be indicated here. In the same case, if an employee is hired to perform duties in a separately operating division of the company (branch, representative office, site, etc.), an additional indication is given of the name of this division and the place where it is located.
2. The function that the employee must perform . Here, the employment contract indicates the name of the profession or position in the form specified in the current staffing schedule at the enterprise. If a vacancy requires a certain qualification according to ETKS or EKS, it must also be indicated (for example: “4th category repairman”). Moreover, if the legislation provides that specific positions or professions are provided with benefits or restrictions on occupying vacancies, then the names must be exactly as in the ETKS, EKS or professional standards of the corresponding profession.
3. The date on which the employee begins his duties.
4. End date of employment if a fixed-term contract is concluded . In addition, with a fixed-term contract, the circumstances under which the employer hires the employee temporarily and not on a permanent basis are also indicated.
5. Amount and terms of remuneration . Here you can indicate either the exact amount (for a fixed salary), the calculation procedure (for piecework payment), as well as links to the applicable tariff rates. In addition, in the same paragraph, the employer must indicate those allowances, incentives and other payments applied on a regular basis. One-time bonuses, as well as financial assistance provided by the employer in exceptional cases, are not specified in the contract.
6. Work and rest schedule . If the employee works under general conditions, it is enough to indicate the procedure in force at the enterprise. If the work schedule for a specific position differs from the usual one, it must be described in detail directly in the contract itself or in the annex to it, which in this case is a mandatory part of the document.
7. If an employee is employed in a position that involves harmful or dangerous work, then the working conditions are characterized and those allowances, compensations and guarantees that are provided to the employee are indicated.
8. The nature of the work, if it differs from usual (travelling, mobile, etc.).
9. Working conditions . Here you can indicate that the employer undertakes to provide the employee with working conditions that do not violate the requirements of current legislation.
10. The condition that the employee is subject to compulsory social insurance in the manner prescribed by law.
11. Other conditions, if required by specific regulations . In particular, the head of the organization must be held accountable for maintaining trade secrets.

Entering missing information into the contract

It may well happen that the HR specialist forgets to include certain essential terms of the employment contract in the contract. Will the agreement between the employee and the employer be considered invalid in this case? No, just the opposite.

If the contract form does not include essential conditions for some reason, then the contract will need to be supplemented with the missing provisions. They can be recorded in an annex to the employment contract or in a separate agreement between the employee and the employer, which will then become an integral part of the contract.

What is stated in the employment contract

According to Article 57 of the Labor Code of the Russian Federation, the following information is mandatory for inclusion in the text of an employment contract:

• personal information about the employee;
• name of the organization or full name of the individual employer;
• details of identification documents of the parties;
• reference to the power of attorney, if registration took place through a representative;
• place, date of signing the contract.

It is important to note that entering the correct date is of great importance. If it was not initially specified, and the employee began performing his duties, the start date will be recognized as the first working day.

Other information not listed in Article 57 of the Labor Code of the Russian Federation is included by the parties at will. For example, the registered address of the employee and employer.

Additional terms

Having studied what the mandatory essential conditions of an employment contract are, we can consider an aspect that reflects the possibility of including additional provisions in the contract that are not directly provided for by the Labor Code of the Russian Federation, but are regularly practiced in many business sectors.

The main requirement for such conditions is that they should not worsen the employee’s position when compared with the requirements provided for by federal legislation, the collective labor agreement and local regulations approved by the organization. What language in question might be included in the contract? They relate to the following aspects of legal relations:

• clarification of a specific place of work;
• employee testing;
• non-disclosure of state, official or commercial secrets;
• the employee’s obligation to work at the enterprise for a certain period of time after completing training, which is paid for by the employer;
• additional employee insurance;
• improving the social status of the employee and his family;
• clarification of the rights and obligations of the employee and the employer in relation to legal norms;
• non-state pension provision for employees.

Also, the employment contract may be supplemented (subject to agreement between the employee and the employer) with provisions reflecting the rights and obligations of the parties arising from the wording of the collective agreement.

Additional terms of the employment contract

Optional provisions (Article 57 of the Labor Code of the Russian Federation):

• Employee's probationary period - the employer has the right to stipulate in the employment contract additional conditions of the probationary period and its expiration date.
• Non-disclosure of secrets protected by law - the employer may require the employee to sign a non-disclosure of commercial, official and other secrets.
• Types and conditions of additional insurance for the employee - the employer may stipulate in the terms of the employment contract the obligation to provide any additional insurance to the employee.
• Improving the social and living conditions of the employee and his family members.
• The employee’s obligation to work after training for at least the established period if the training was carried out at the expense of the employer. There are often cases when an employer, wanting to protect its investment in personnel training, obliges the employee to work for a certain period after training.
• Other additional terms of the employment contract: on increasing leave, monetary compensation and other conditions that do not worsen the employee’s position in comparison with the Labor Code of the Russian Federation, laws and other regulatory legal acts (Article 57 of the Labor Code of the Russian Federation).

Meaning of essential terms

What do the essential conditions for concluding an agreement between an employer and an employee provide in practice? First of all, this is the legal protection of the employee. Everything that is stated in the contract is subject to mandatory execution by the parties. The content of the contract and the essential terms of the contract imply that the employer does not have the right to require the employee to perform tasks that are not reflected in the contract. These are the provisions of Article 60 of the Labor Code of the Russian Federation.

But in some cases, the state of business may require the employer to take the initiative to adjust the provisions of contracts with employees. Let's consider this aspect in more detail. How are the essential terms of an employment contract changed?

Adjustment of essential conditions

Article 72 of the Labor Code of the Russian Federation states that the terms of the contract can be changed only if both parties to the legal relationship agree to this in writing. However, this rule may be accompanied by a number of exceptions. For example, the Labor Code of the Russian Federation has provisions under which temporary transfers of an employee without his consent are permissible, as well as the possibilities provided for in some paragraphs of the Code under which the employer can still change the terms of the employment contract without the consent of the employee.

Changing technological conditions

Article 73 of the Labor Code of the Russian Federation states that the employer has the right to initiate adjustments to the provisions of the contract with a specialist if the working conditions at the enterprise - organizational, technological - have changed so much that it is difficult for the company to fulfill its obligations. But at the same time, the employee’s job function should not be changed. In addition, the company will have to prove that changes in working conditions objectively occur.

For example, this could be the transfer of technological processes to other standards, reorganization of production, optimization of working conditions in the workplace based on certification, modernization of equipment.

Arbitrage practice

An essential condition of the contract is, as we noted above, the provision on a harmful environment at the enterprise.

In the judicial practice of the Russian Federation, there are cases in which the adjustment of this paragraph was recognized as legitimate due to the fact that it occurred due to the improvement of the working environment and facilitating the performance of labor functions by employees. The employer excluded from the contracts provisions on compensation for work performed in hazardous conditions due to the objective modernization of the technological process, and the court sided with him.

Let's consider other scenarios in which it is possible to change the essential terms of the employment contract.

Contents and structure of the employment contract

Providing an arbitrary drafting procedure, Art. 57 of the Labor Code of the Russian Federation focuses on what must be mandatory in an employment contract. In addition to individual data, place and time of conclusion, conditions that must be included in the agreement are highlighted.

Download: Sample employment contract (62.0 KiB, 203 hits)

Prerequisites

The essential terms of an employment contract, reflected in the document without fail, are considered to be conditions, the ignoring or vagueness of the wording of which deprives the guarantees of the participating parties and allows each party to use the interpretation to their advantage. The lack of specifics is fraught with consequences for each item presented in the table:

In the absence of a number of essential conditions of the employment contract, the Labor Code of the Russian Federation allows you to fill in the missing information with an appendix or an additional agreement drawn up, which is an integral part of the document. If any information was omitted, then the individual contract is not classified as an unconcluded agreement and does not require termination.

Additional terms

The document may specify other conditions that serve to clarify the mandatory ones and do not worsen the position of hired personnel in comparison with legislative norms. Which condition of the employment contract is additional depends on the specifics of the activity of the enterprise or entrepreneur and the specific responsibilities of the citizen.

A recommended list may include:

1. Availability of a probationary period. If the employee performs unworthyly, the employee can be fired for this reason; during the probationary period, the process of terminating the relationship is greatly simplified for both parties. However, the deadline is limited to three months (for management personnel a six-month period) and is unacceptable in relation to a number of categories of persons. It is considered a gross violation to set the amount of remuneration below that provided for in the staffing table.
2. Material liability. If the position involves servicing cash flows or inventory items, then in the absence of documentary evidence, the employee has the right to refuse to sign an agreement providing for full financial liability.
3. Training at the expense of the employer. When financing an employee’s education, the condition of a certain amount of working time, compensating for the expenses incurred, is included in the terms of the contract.
4. Access to secrets protected by an enterprise or entrepreneur. If, due to the work performed, the specialist is exposed to information that seems closed to public access, then the non-disclosure condition must be documented. Otherwise, dismissal for a single gross violation is unacceptable, since the employee was not informed about the existence of a “secret”.
5. Traveling character. When delivering an employee to the place of performance of duties or during constant movement, the rules must be reflected.

Download: Employment contract with probationary period. Blank (60.0 KiB, 216 hits)

Employment contract with a truck driver (sample) (25.5 KiB, 2,153 hits)

Which terms of the contract are considered essential in terms of mandatory ones are determined by labor legislation, and in terms of additional ones - the business entity. If the clauses of the contract unreasonably worsen the position of the staff unit in comparison with the norms of the Labor Code, then, regardless of whether they are signed bilaterally, they are not legally recognized.

Translation

Among the most common types of activities within the framework of legal relations involving adjustments to contracts is the transfer of an employee to another job. It is possible only if the hired specialist has given written consent to this. In accordance with Article 72 of the Labor Code of the Russian Federation, there are three types of transfers: internal, one that involves the employee moving to another area, as well as the employee moving to another company. True, the third scenario also presupposes a procedure for dismissal from one’s previous job that complies with legal criteria.

Assignment of other work

Another scenario that involves changing the essential terms of the contract is an order by which the employer asks a specialist to perform work that is not directly provided for in the contract, but is quite compatible with his current job function. This aspect of legal relations may involve combining professions, expanding service areas, fulfilling the duties of an employee who is temporarily absent, or increasing the volume of work performed.

In accordance with Article 602 of the Labor Code of the Russian Federation, an employer can assign another job to a specialist if:

• the employee will issue written consent to perform the relevant job duties within the established period and subject to a clear definition of the content and scope of the work;
• the employer guarantees additional payment for the fulfillment of additional obligations in accordance with the complexity and volume of the tasks being solved.

It may be noted that the Labor Code of the Russian Federation gives the right to any party to labor relations to refuse agreements regarding additional work 3 days before its start - in writing.

Commentary on Article 67 of the Labor Code of the Russian Federation

Article 67 of the Labor Code of the Russian Federation establishes “framework” restrictions regarding compliance with the form of the employment contract. Note that these restrictions must be taken into account equally by both the employer and the employee when concluding an employment contract, since a document whose form does not meet the established legal requirements essentially has no legal force - just as if it, for example, was not provided with the appropriate details.

The main requirements for the form of an employment contract are as follows:

1. An employment contract must be concluded in writing, in at least two copies (one each for the employee and the employer). If necessary, additional copies and (or) copies of the employment contract are made.

2. Copies of the document intended for the parties to the labor relationship must be signed by them. In addition, let us recall that in accordance with the addition to part one of Article 67 of the Labor Code of the Russian Federation, the fact that the employee has received “his” copy of the employment contract is also confirmed by his signature on the copy of the employment contract remaining at the disposal of the employer (in his custody).

3. In cases provided for by laws and other regulations, the conclusion of an employment contract may be preceded by a procedure for agreeing on the conditions included in the document with the relevant persons or bodies that are not employers under these contracts, for compliance of such conditions (including the very possibility of concluding an employment contract ) legislation.

It is noteworthy that the Labor Code of the Russian Federation - subject to certain conditions - allows for “improper” execution of an employment contract. Thus, Article 67 of the Labor Code of the Russian Federation contains a provision according to which an employment contract that is not formalized in writing is recognized as concluded if the employee, with the knowledge or on behalf of the employer or his representative, actually began (was allowed) to work. Nevertheless, in such a situation, the employer, within a period of no more than three working days from the date of the employee’s actual admission to work, is obliged to draw up an employment contract with him in writing and containing the entire volume of information provided for in Article 57 of the Labor Code of the Russian Federation.

Let us note that in practice, to conclude employment contracts with certain categories of workers, standard forms approved by the relevant organizational and administrative documents or local regulations are often used.

Notification of changes in working conditions

An employer intending to legally change working conditions must notify employees of this 2 months before the proposed changes. Some relief has been given for individual entrepreneurs - in accordance with Article 306 of the Labor Code of the Russian Federation, entrepreneurs can warn employees about changes to contracts 14 days in advance. Religious organizations can send these notifications to employees 7 days before the innovations.

Employees have the right to refuse to continue working, subject to adjustments to the provisions of the contract. In this case, the company must offer specialists other work that corresponds to their qualifications. However, the new position may offer a salary lower than the current one. If the person agrees, the employee’s transfer is formalized; if not, the employment contract, in accordance with Article 77 of the Labor Code of the Russian Federation, is terminated.

Changing working hours

There is another noteworthy scenario that involves a change in significant working conditions and is associated with the optimization of working hours. Adjustment of the relevant provision of the contract is possible, for example, if the employer needs to prevent mass layoffs of employees. That is, the company has the right, taking into account the position of the trade union, to introduce a part-time work schedule.

In this case, wages become proportional for 6 months. An employer can take such an initiative unilaterally; it does not require approval from employees. But if they refuse to fulfill their labor duties under new conditions, then the company can terminate legal relations with them, however, not under Article 77 of the Labor Code of the Russian Federation, but under Article 81, that is, formalize the termination of the contract on the basis of staff reduction. This scenario involves payment to employees of compensation provided for by law.