What is the difference between works and services? Additional conditions Indoors or outdoors.

One of the mandatory conditions of an employment contract is its duration. Article 58 of the Labor Code of the Russian Federation stipulates that employment contracts can be concluded for an indefinite period (unlimited employment contract) and for a specified period of no more than five years (fixed-term employment contract). Fixed-term employment contracts can be concluded only in cases specified by law. Often, the employer sets the term of the contract without sufficient grounds, which is a violation of labor laws. In this article we will look at basic rules for concluding a fixed-term employment contract, compliance with which will help avoid labor conflicts and nagging from regulatory authorities.

In accordance with Art. 58 of the Labor Code of the Russian Federation, a fixed-term employment contract is concluded when 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, namely (Part 1 of Article 59 of the Labor Code of the Russian Federation):
– for the duration of the duties of an absent employee, whose place of work is retained in accordance with labor legislation and other regulations containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract;
– 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;
– to carry 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 a predetermined job in cases where its completion cannot be determined by a specific date;
– to perform work directly related to the internship and professional training of the employee;
– in case 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 self-government bodies, in political parties and others public associations;
– with persons sent by employment services to temporary work and public works;
– with citizens sent to perform alternative civil service;
Part 2 Art. 59 of the Labor Code of the Russian Federation establishes cases when concluding an employment contract for a certain period is possible by agreement of the parties without taking into account the nature of the work to be done and the conditions for its implementation:
- 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 regulations containing labor law norms;
– with creative workers of the media, cinematography organizations, theaters, theater 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 the Russian 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 form and form of ownership;
– with persons studying full-time;
– with persons applying for part-time work;
– in other cases provided for by the Labor Code of the Russian Federation or other federal laws.
Rostrud in Letter dated December 18, 2008 No. 6963-TZ emphasizes that the list of grounds for concluding a fixed-term employment contract with an employee, provided for in Art. 59 of the Labor Code of the Russian Federation is exhaustive.

Conclusion of a fixed-term employment contract

When concluding a fixed-term employment contract, you must be guided by the rules established by Chapter. 11 Labor Code of the Russian Federation. In addition, you must comply with the requirement of paragraph. 3 hours 2 tbsp. 57 of the Labor Code of the Russian Federation: when a fixed-term employment contract is concluded, its validity period and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with the Labor Code of the Russian Federation or other federal law are necessarily recorded in the contract. Moreover, these circumstances must be justified, because in the absence of sufficient grounds for concluding an employment contract for a certain period, this contract, in the event of a labor dispute, will be recognized as concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).

Note! An entry in the work book about hiring an employee under a fixed-term contract is made WITHOUT indicating that the employee was hired for a certain period.

As a rule, when formulating a condition on the duration of an employment contract, it is advisable to indicate not only the duration of the contract, but also its expiration date, since in the future this will help to avoid disputes when terminating the contract due to the end of its term. However, there may be situations where it is almost impossible to determine both the start and end dates of the work and the duration of the contract term itself. For example, when concluding an employment contract in connection with an employee going on maternity leave or parental leave, the exact end date of the work for which the employee is hired is unknown. In this case, the end of the employment contract will be associated with a certain event - the employee’s return from vacation. For such cases, the Plenum of the Armed Forces of the Russian Federation in Resolution No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” (hereinafter referred to as Resolution No. 2) provides clarification: if a fixed-term employment contract was concluded to perform certain work in cases where it completion cannot be determined by a specific date (paragraph 8, part 1, article 59 of the Labor Code of the Russian Federation), the agreement by virtue of part 2 of art. 79 of the Labor Code of the Russian Federation is terminated upon completion of this work.
Therefore, when concluding a fixed-term employment contract for the duration of the duties of an absent employee, the wording of the reasons may be as follows: “This contract was concluded for the duration of O.P. Zakharova’s leave to care for a child under three years of age.”
Part 2 of clause 14 of Resolution No. 2 can also help determine the term of an employment contract: 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 7, part 1 Article 59 of the Labor Code of the Russian Federation), the term of the employment contract depends on the period for which such an organization was created.

Note! You should not enter into a fixed-term employment contract just to have an additional basis for terminating the employment contract. If a court proceeding arises and during it 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.

In case of retraining of a fixed-term employment contract, the rules established for a contract concluded for an indefinite period will apply to it. Therefore, we recommend that you pay attention to the following points when concluding a contract.
1. During seasonal work:
– the probationary period can be no more than two weeks (Article 70 of the Labor Code of the Russian Federation);
– for each month worked, the employee is entitled to two working days of vacation (Article 295 of the Labor Code of the Russian Federation);
– the seasonality condition must be indicated in the contract (Article 294 of the Labor Code of the Russian Federation).
2. For the duration of temporary work (up to two months):
– a probationary period is not established (Article 289 of the Labor Code of the Russian Federation);
– paid holidays are provided or compensation is paid upon dismissal at the rate of two working days per month of work (Article 291 of the Labor Code of the Russian Federation).
3. The term of an employment contract with persons entering work in organizations created for a predetermined period or to perform a predetermined job depends on the period for which such an organization was created.
4. If an employee is elected to an elective position:
– the term of the employment contract cannot be less than the term for which the employee was elected;
– employees who directly support the activities of members of elected bodies or officials in state authorities and local governments cannot be hired for a period longer than the term of election.
Very often, employers make the mistake of concluding only fixed-term employment contracts with old-age pensioners. But Art. 59 of the Labor Code of the Russian Federation only allows, and does not oblige, the conclusion of such employment contracts with pensioners and persons who, in accordance with a medical report for health reasons, are allowed to work of a temporary nature. In any of these cases, a fixed-term employment contract can only be concluded by agreement of the parties. The retirement age of a citizen as such is not the basis for concluding this employment contract with him, and the Decree of the Constitutional Court of the Russian Federation dated May 15, 2007 No. 378-O-P confirms this.
In relation to those pensioners who did not quit and continued to work, the employer does not have the right to re-register an open-ended employment contract for a fixed-term one in connection with the employees reaching retirement age and assigning them a pension (as well as terminating such an agreement). These pensioners can continue working under the terms of a contract concluded for an indefinite period.

Termination of a fixed-term contract

Article 79 of the Labor Code of the Russian Federation regulates the procedure for terminating a fixed-term employment contract and establishes, in particular, that it terminates upon expiration. The employee must be notified in writing of the termination of the employment contract due to its expiration at least three calendar days before dismissal, with the exception of cases where a fixed-term employment contract concluded for the duration of the duties of the absent employee expires.
A contract concluded for the duration of certain work is terminated upon completion of this work, concluded for the duration of seasonal work, - at the end of the season, for the duration of the duties of an absent employee, - with the return of this employee to work, for the duration of work in organizations created for a certain period - if this organization actually ceases its activities due to the expiration of the period for which it was created, or in connection with the achievement of the purpose for which it was created (clause 14 of Resolution No. 2).
Particular attention should be paid to the termination of a fixed-term employment contract during a woman’s pregnancy. Article 261 of the Labor Code of the Russian Federation obliges the employer, upon her written application and upon provision of a medical certificate confirming the state of pregnancy, to extend the term of the employment contract until the end of pregnancy. This is done by concluding an additional agreement to the employment contract, which changes the terms of its validity.
A woman whose employment contract has been extended until the end of her pregnancy is obliged, at the request of the employer, but not more than once every three months, to provide a medical certificate confirming the state of pregnancy. If the woman actually continues to work after the end of her pregnancy, then the employer has the right to terminate the employment contract with her due to its expiration within a week from the day the employer learned or should have learned about the end of the pregnancy.
However, labor legislation makes it possible to dismiss a pregnant woman due to the expiration of the employment contract, if the employment contract was concluded for the duration of the duties of the absent employee and it is impossible to transfer the woman with her consent to another job that she can perform taking into account her state of health. In this case, the following rules must be observed:
– a woman should be offered not only a job or a vacant position corresponding to her qualifications, but also a lower position or lower paid job;
– all available vacancies that meet health requirements must be offered;
– vacancies and jobs available to the employer in the area must be offered; vacancies and jobs available in other localities must be offered in cases where this is provided for in the collective agreement, agreements or employment contract.
If a woman agrees to a transfer by concluding an additional agreement to the employment contract, some conditions change, for example, place of work, position or term of the employment contract.

Note! If neither party has requested termination of the fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract, the condition of its urgent nature loses force and the employment contract is considered concluded for an indefinite period based on Part 4 of Art. 58 Labor Code of the Russian Federation. At the same time, Rostrud, in Letter No. 1904-6-1 dated November 20, 2006, recommends amending the employment contract by concluding an additional agreement.

It is important to notify the employee about this in writing when terminating a fixed-term employment contract. We repeat: according to the norms of Art. 79 of the Labor Code of the Russian Federation, the employer is obliged to do this at least three calendar days before dismissal. The form of warning is not established by law - it can be either a written notice or an order to terminate the employment contract indicating a specific date. We recommend that you first notify the employee, and only then issue a dismissal order, since situations may arise when such an order will have to be canceled (for example, if a woman provides a certificate of pregnancy).

Here is an example of a written notice.

Open Joint Stock Company "Sokol"

Dear Anna Viktorovna!

We hereby notify you that on June 19, 2009, the employment contract dated April 19, 2009 No. 45 expires. The employment contract will be terminated in accordance with clause 2, part 1, art. 77 of the Labor Code of the Russian Federation.

Director Zorin /P. D. Zorin/

Reviewed 06/15/2009 Samoilenko

We believe that in cases where notice of dismissal is given in less than three days or not given at all, the employee can challenge the dismissal order. The court, taking into account the employee’s requirements, can either reinstate him at work or change the date of dismissal.
A warning about the dismissal of an employee hired to perform the duties of an absent employee is not provided for by labor legislation.
Very often the question arises: is it possible to terminate an employment contract due to the expiration of its term when the employee is on sick leave? We think so. If the contract expires and the employer no longer wishes to continue the employment relationship, the contract must be terminated - naturally, with prior notice to the employee of this. The fact that the employee is on sick leave does not matter in this case. At the same time, by virtue of Art. 183 of the Labor Code of the Russian Federation, a certificate of temporary incapacity for work is subject to payment. This is also stated in paragraph 2 of Art. 5 of the Federal Law of December 29, 2006 No. 255-FZ “On the provision of benefits for temporary disability, pregnancy and childbirth to citizens subject to compulsory social insurance.”

Early termination of a fixed-term employment contract

Early termination of a fixed-term employment contract is possible on the general grounds established by Art. 77 Labor Code of the Russian Federation:
– (Article 78 of the Labor Code of the Russian Federation);
– (Article 80 of the Labor Code of the Russian Federation);
– (Article 81 of the Labor Code of the Russian Federation).
As a rule, when terminating a fixed-term employment contract early, the general rules established for terminating a permanent employment contract apply.
In case of early termination of an employment contract at the initiative of the employee, he is obliged to notify the employer about this at least 14 calendar days in advance. However, there are exceptions to this rule - for example, Art. 292 of the Labor Code of the Russian Federation obliges an employee who has entered into an employment contract for a period of up to two months to notify the employer of his desire to terminate the employment contract at least three days in advance. A seasonal worker must notify the employer within the same period of time (Article 296 of the Labor Code of the Russian Federation).
The head of the organization by virtue of Art. 280 of the Labor Code of the Russian Federation is obliged to notify the employer (property owner) of his desire to terminate the employment contract early in writing at least one month in advance. An athlete or coach must also notify the employer of their desire to resign one month in advance (Article 348.12 of the Labor Code of the Russian Federation) - except in cases where the employment contract was concluded for a period of less than four months.
If an employment contract is terminated early at the initiative of the employer, in particular in connection with the liquidation of the organization, reduction in the number or staff of the organization’s employees, employees must be notified within the following periods:
- employees who have entered into an employment contract for a period of up to two months - no less than three calendar days in advance (Article 292 of the Labor Code of the Russian Federation), while severance pay is not paid to such employees, unless otherwise established by a collective or labor agreement;
– seasonal workers – no less than seven calendar days (Part 2 of Article 296 of the Labor Code of the Russian Federation), and severance pay must be paid in the amount of two weeks’ average earnings.

Bottom line

When choosing the type of employment contract, the employer must be very careful, because one of the first places in the number of violations is occupied by the unreasonable conclusion of fixed-term employment contracts. If, when resolving a dispute about the legality of concluding a fixed-term employment contract, it is established that the employee’s consent was forced, the court will apply the rules of an agreement concluded for an indefinite period (clause 13 of Resolution No. 2). The court will also reclassify a fixed-term employment contract into an open-ended one if there are sufficient grounds for this. Let us highlight the main reasons for retraining an employment contract:
– the fixed-term employment contract was concluded without legal grounds, that is, for a reason not provided for in Art. 59 Labor Code of the Russian Federation;
– the validity period of the contract was not specified, that is, there is no reference to the event in connection with which the contract is terminated, or the date of termination of the employment relationship is not indicated;
– when concluding a fixed-term contract, the employer wanted to avoid providing the rights and guarantees due to employees working under open-ended employment contracts.
To avoid problems with regulatory authorities and conflicts with employees, you should still comply with the requirements of labor legislation regarding the conclusion and termination of a fixed-term employment contract.

Conditions for performing the upcoming work

As a basis for concluding a fixed-term employment contract, according to Art. 58 of the Labor Code of the Russian Federation, the conditions for performing the upcoming work may also be taken into account:

a) harmful, dangerous, difficult environmental and climatic conditions (for example, a fixed-term employment contract of the established form in accordance with the law “On State Guarantees and Compensations for Persons Working and Living in the Far North and Equivalent Areas”);

b) conditions for the performance of the duties of a temporarily absent employee, whose place of work is retained in accordance with Art. 256 of the Labor Code of the Russian Federation (these are the working conditions of an employee hired for the period of a woman’s maternity leave, as well as her leave to care for a child under three years of age) The peculiarity of working conditions is caused by the presence of benefits and guarantees provided by labor legislation to a pregnant woman, as well as a woman who has a child under three years of age);

Unfortunately, in practice there are cases when other criteria for assessing the circumstances (reasons) for concluding a fixed-term employment contract are used. These cases violate the principles of regulation of labor relations formulated in Art. 2 of the Labor Code of the Russian Federation, the legal rights of workers entail disputes in court. Thus, a fixed-term employment contract is sometimes concluded with persons entering work in organizations created for a “previously defined period of time,” as well as with “persons to perform a predetermined job.” In Russian, the word “deliberately” is used to denote a negative object or event, for example, “deliberate scoundrel” or “deliberate lie,” i.e. information that is used with selfish intent, since it is known in advance that it does not correspond to reality. It is no coincidence that the word “knowingly” is used in investigative and judicial practice to legally qualify the unlawful behavior of a person falling under one or another crime. Considering the meaning of the word obviously, it is not difficult to imagine what “organizations created for a deliberately defined period of time” are “one-day companies.”

Features of the application of Article 59 of the Labor Code

Additional attention in the practice of applying labor legislation requires Article 59 of the Labor Code of the Russian Federation, which from the first words contains an alternative: “A fixed-term employment contract may be concluded...”. In other words, it can be concluded, but not always and not necessarily.

The Plenum of the Supreme Court of the Russian Federation, in resolution dated March 17, 2004 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation,” stated the following: “... since Article 59 of the Labor Code provides for the right, and not the obligation, of the employer to enter into a fixed-term employment contract in the cases provided for by this norm , then the employer can exercise this right subject to the general rules for concluding a fixed-term employment contract established by Article 58 of the Labor Code."

The general rules are associated with the impossibility of forming labor relations for an indefinite period, taking into account the nature of the work to be performed or the conditions for its implementation.

In this regard, attention should be paid to the conclusion of employment contracts with persons working part-time. As a general rule, an employment contract is concluded with part-time workers under paragraph one of Art. 58 of the Labor Code of the Russian Federation - for an indefinite period. The fact of part-time work in itself is not a basis for concluding a fixed-term employment contract. The results of a competition in which scientific or teaching staff, as well as teaching staff, participated cannot be the basis for concluding a fixed-term employment contract. Moreover, the wording “before holding a competition to fill the position” has nothing to do with the basis for concluding a fixed-term employment contract. An employment contract drawn up with this wording is considered to be concluded for an indefinite period.

According to Art. 59 of the Labor Code of the Russian Federation, a fixed-term employment contract can be concluded with old-age pensioners, as well as with persons who, for health reasons, in accordance with a medical report, are allowed to work exclusively of a temporary nature. The text of the law does not explain what the phrase “work of an exclusively temporary nature” means, although it is decisive for the type of employment contract that can be concluded with this category of workers. In order to decide what type of employment contract to conclude with age pensioners, and therefore to determine the features of the labor relationship that will be formed with these employees, you should use an already known concept that has a place in the law. We are talking about work for up to two months from Chapter 45 of the Labor Code of the Russian Federation. Here the work is “exclusively temporary” and is an indicator of irregular work that cannot be performed evenly from day to day over a long period of time (quarter, year). Thus, with age pensioners, as well as with persons whose official duties are determined by their state of health according to a medical report, labor relations are built under an employment contract for a period of up to two months, according to Art. 289 Labor Code (features of labor relations for this type of contract were discussed above). We can only clarify that in the case when a pensioner works at an enterprise for a year, and this entire period of work is formalized by concluding a second and subsequent contracts for a period of up to two months, an illegal substitution of an employment contract for an indefinite period occurs. The fact of numerous conclusions of employment contracts excludes the characteristic signs of irregular work and insignificant amount of work, which are the basis for concluding a fixed-term employment contract for a period of up to two months. According to Art. 58 of the Labor Code of the Russian Federation, a fixed-term employment contract concluded without sufficient grounds is considered concluded for an indefinite period.

A fixed-term employment contract can be concluded with a student studying at a university, but again, subject to the general rules for concluding this type of contract. In accordance with Art. 57 of the Labor Code of the Russian Federation, a fixed-term employment contract must indicate two dates: the exact start date of work and the exact end date of work. It is unacceptable to replace the exact date of completion of work with the expression “before graduation from university” or “during internship”. With this formulation, the employment contract is initially considered to be concluded for an indefinite period. As for a fixed-term employment contract, concluded in compliance with the general procedure established by Article 58 of the Labor Code, its validity period cannot be shortened or terminated by the fact that the employee-student graduates from the university in which he studied.

Recently, cases of concluding an employment contract with the wording “for a probationary period” have become more frequent. In this case, during the probationary period, wages are set at a reduced rate. The text of the document indicates that a fixed-term employment contract has been concluded, which will be terminated upon expiration if the test result is unsatisfactory. Such tricks with illegal substitution of legal concepts are a gross violation of the principles of regulation of labor relations, outright discrimination against the employee, and the use of forced labor against him. In this case, there can be no question of a fixed-term employment contract. There is no doubt that the employment contract here is considered concluded for an indefinite period, according to paragraph one of Article 58 of the Labor Code.

Thus, a fixed-term employment contract is concluded in cases where the employment relationship cannot be established for an indefinite period. in case of concluding a fixed-term employment contract, it shall indicate the period of its validity and the circumstance (reason) that served as the basis for concluding a fixed-term employment contract. If they are not specified, then the employment contract is considered to be concluded for an indefinite period.

The circumstance (reason) that serves as the basis for concluding a fixed-term employment contract is the nature of the work to be performed. The nature of the work can be determined by the following qualities and indicators: irregularity of work, seasonality of work, insignificant amount of work, prevention and elimination of the consequences of natural disasters, accidents, catastrophes, epidemics and other emergency circumstances.

As a basis for concluding a fixed-term employment contract, the conditions for performing the upcoming work may also be taken into account:

a) harmful, dangerous, difficult environmental and climatic conditions;

b) conditions for the performance of the duties of a temporarily absent employee, whose place of work is retained in accordance with Art. 256 of the Labor Code of the Russian Federation (these are the working conditions of an employee hired for the period of a woman’s maternity leave, as well as her leave to care for a child under three years of age);

c) working conditions in small business organizations, as well as for employers - individuals.

These conditions are not mandatory for inclusion in the employment contract (Article 57 of the Labor Code). If additional conditions are included in the employment contract, they become mandatory. An employment contract can be concluded without such conditions. These include:

1) the employee’s obligation to work after training for a certain period, if the training was carried out at the expense of the employer (can be avoided in the case of graduation with honors, change of marital status, birth of a child);

2) a condition on non-disclosure of secrets protected by law;

3) the condition of a probationary period;

4) condition on additional insurance;

5) a condition for clarifying the place of work indicating a specific structural unit (specific workplace);

6) the rights and obligations of the employer provided for by law or local regulations.

An employment contract is in labor law an agreement between an employee and an employer, establishing their mutual rights and obligations. An agreement between an employee and an employer, according to which the employee undertakes to perform work in a certain position of appropriate qualifications in accordance with the staffing table and comply with internal labor regulations, and the employer undertakes to provide the employee with work, ensure working conditions, and pay wages on time.

A) Data that must be specified:

1) full name of the employee and name of the employer (full name of the employer - individual);

2) information about identification documents of the employee and the employer - individual. faces;

3) TIN (for employers, with the exception of employers - individuals who are not individual entrepreneurs);

4) information about the employer’s representative who signed the TD and the basis for such authority;

5) place and date of conclusion of the TD.

B) Mandatory conditions for inclusion in the TD:

1) place of work or also indicating a separate structural unit and its location in the case when an employee is hired to work in a separate unit located in another area;

2) labor function (work according to the position in accordance with the staffing table, profession, specialty indicating qualifications; specific type of work assigned to the employee). If the performance of work in certain positions, professions, specialties is associated with the provision of compensation and benefits or the presence of restrictions, then their name and qualification requirements for them must correspond to those specified in the qualification reference books;

3) the date of commencement of work, and in the case where an urgent contract is concluded, also the period of its validity and the circumstances (reasons) that served as the basis for its conclusion;

4) terms of remuneration (including the size of the tariff rate or salary, additional payments, allowances and incentive payments);

5) working hours and rest hours (if for a given employee it differs from the general rules in force for a given employer);

6) compensation for hard work and work under harmful and dangerous working conditions, indicating the characteristics of working conditions in the workplace;

7) conditions determining, in necessary cases, the nature of the work (mobile, traveling, en route, other);

8) condition on compulsory social insurance;

9) others.

If information or conditions from a) and b) were not included, then this is not a basis for recognizing the TD as not concluded or for its termination. The TD must be supplemented. In this case, the missing information is entered directly into the text of the TD, and the missing conditions are determined by an appendix to the TD or by a separate agreement of the parties, concluded in writing.

c) Additional conditions that do not worsen the employee’s position in comparison with the established legal acts, collective agreements, agreements, local regulations, in particular:

On clarification of the place of work (indicating the unit and its location) and (or) the workplace;

About the test;

On non-disclosure of secrets protected by law;

On the employee’s obligation to work after training for no less than the period established by the contract, if the training was carried out at the expense of the employer;

On the types and conditions of additional employee insurance;

On improving the social and living conditions of the employee and his family members;

On clarification of the rights and obligations of the employee and the employer in relation to the employee’s working conditions.

43. Duration of the employment contract. Fixed-term employment contract

Article 58. Duration of the employment contract

Employment contracts can be concluded:

1) for an indefinite period;

2) for a certain period of not more than five years (fixed-term employment contract), unless a different period is established by this Code and other federal laws.

A fixed-term employment contract is concluded when 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, namely in the cases provided for in part one of Article 59 of this Code. In the cases provided for in part two of Article 59 of this Code, a fixed-term employment contract may be concluded by agreement of the parties to the employment contract without taking into account the nature of the work to be performed and the conditions for its implementation.

In the event that neither party has requested termination of a fixed-term employment contract due to its expiration and the employee continues to work after the expiration of the employment contract, the condition on the fixed-term nature of the employment contract loses force and the employment contract is considered concluded for an indefinite period.

An employment contract concluded for a specific period in the absence of sufficient grounds established by the court is considered concluded for an indefinite period.

It is prohibited to conclude fixed-term employment contracts in order to evade the provision of rights and guarantees provided for employees with whom an employment contract is concluded for an indefinite period.

A fixed-term employment contract is concluded in cases when labor relations cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions for its implementation, unless otherwise provided by the Labor Code of the Russian Federation and other federal laws.

If the employment contract does not specify the duration of its validity, the contract is considered to be concluded for an indefinite period.

An employment contract concluded for a certain period in the absence of sufficient grounds established by the body exercising state supervision and control over compliance with labor legislation and other regulatory legal acts containing labor law norms, or by a court, is considered concluded for an indefinite period.

It is prohibited to conclude fixed-term employment contracts in order to evade the provision of rights and guarantees provided to employees with whom an employment contract is concluded for an indefinite period.

A fixed-term employment contract can be concluded at the initiative of the employer or employee:

to replace a temporarily absent employee whose job is retained in accordance with the law; for the duration of 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 of time (season).

A fixed-term employment contract is concluded:

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

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;

44. General procedure for concluding an employment contract. Employment test. Employment history

Order:

In accordance with the Labor Code of the Russian Federation, the employer is obliged to formalize labor relations with the employee in writing (Article 67 of the Labor Code of the Russian Federation).

When concluding an employment contract, a person applying for work is obliged to present the necessary documents to the employer. The list of these documents contains Article 65 of the Labor Code of the Russian Federation:

Passport or other identification document;

Work record book (except for cases when an employment contract is concluded for the first time or an employee starts working on a part-time basis);

Insurance certificate of state pension insurance;

Military registration documents - for those liable for military service and persons subject to conscription for military service;

Document on education, qualifications or special knowledge - when applying for a job that requires special knowledge or special training.

After working with the specified documents, if necessary, making copies of them, they are returned to the owner (except for the work book).

Trial;

Employment testing is not established for persons:

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

2) pregnant women and women with children under the age of one and a half years;

3) under the age of 18;

4) those who have graduated from educational institutions of primary, secondary and higher vocational education with state accreditation and are entering work for the first time in the acquired specialty within one year from the date of graduation;

5) those elected to an elective position for paid work;

6) those invited to work by way of transfer from another employer as agreed between the employers;

7) concluding an employment contract for a period of up to two months;

8) others in cases provided for by the Civil Code, other Federal Laws, and a collective agreement.

The probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies, heads of separate structural divisions of organizations - six months, unless otherwise established by the Federal Law.

When concluding an employment contract for a period of two to six months, the trial period cannot exceed two weeks.

The period of temporary incapacity for work and other periods when the employee was actually absent from work are not included in the probationary period.

If the test result is unsatisfactory, the employer has the right to terminate the employment contract with the employee before the expiration of the test period by warning him in writing no later than 3 days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test. The employee has the right to appeal the employer's decision in court.

If the test result is unsatisfactory, the employment contract is terminated without taking into account the opinion of the relevant trade union body and without payment of severance pay.

If the probation period has expired and the employee continues to work, then he is considered to have passed the test and subsequent termination of the employment contract is allowed only on a general basis.

If during the probationary period the employee comes to the conclusion that the job offered to him is not suitable for him, then he has the right to terminate the employment contract at his own request by notifying the employer in writing 3 days in advance.

Employment history:

Work book and its meaning

When concluding an employment contract for the first time, a work book is drawn up by the employer.

If a person applying for work does not have a work book due to its loss, damage or for any other reason, the employer is obliged, upon a written application from this person (indicating the reason for the absence of a work book), to issue a new one.

The registration of a work book for an employee hired for the first time is carried out by the employer in the presence of the employee no later than a week from the date of hiring.

When registering the work book, the following information about the employee is entered:

a) full name, date of birth - on the basis of a passport or other identification document;

b) education, profession, specialty - on the basis of relevant documents.

The employer is obliged to familiarize the owner with each entry made in the work book about work performed, transfer to another permanent job and dismissal, against signature in his personal card.

The work book of the established form is the main document about the employee’s work activity and length of service.

The form, procedure for maintaining and storing, as well as the procedure for producing forms and providing them to employers are approved by the Government Decree of April 16, 2003 “On work books”. Filling out in the manner approved by the Ministry of Health and Social Development of the Russian Federation.

The employer (with the exception of individuals who are not individual entrepreneurs) maintains work books for each employee who has worked for him for more than five days, in the case where the work is the main one for the employee. A person who is not an individual entrepreneur does not have the right to make entries in the work books of employees and formalize them for employees hired for the first time. A document confirming the period of work with such an employer is a TD concluded in writing.

The work book contains information about the employee, the work he performs, transfers to another permanent job and dismissal, as well as the grounds for termination of the employment contract and information about awards for success in work. Information about penalties is not entered, except in cases where the disciplinary sanction is dismissal.

At the request of the employee, information about part-time work is entered into the work book at the place of main work on the basis of a document confirming part-time work.

Entries in the work book about the reasons for termination of the employment contract must be made in strict accordance with the wording of the Labor Code of the Russian Federation or other Federal Law. In this case, a reference should be made to the relevant article, paragraph.

If an incorrect or inaccurate entry is identified, the correction is made at the place of work where it was made, or by the employer at the new place of work on the basis of an official document of the employer who made the error.

When an employee is dismissed, all entries made in his work book during his time working for this employer are certified by the signature of the employer or the person responsible for maintaining work books, the seal of the employer and the signature of the employee himself.

The work record book plays a role not only in formalizing labor relations. Thus, the insurance period of work, which gives the right to assign a labor pension (including early), is calculated, first of all, on the basis of entries in the work book. It contains information about where the employee managed to work, as well as about the incentives he received. All this information is of interest to the future employer, and the employee will serve as the basis for calculating general, continuous and special work experience.

45. Concept and types of transfer to another job

Translation to another job - a permanent or temporary change in the labor function of the employee and (or) the structural unit in which the employee works (if the structural unit was specified in the employment contract), while continuing to work for the same employer, as well as transfer to work in another location together with the employer. Transfer to another job is permitted only with the written consent of the employee, except for cases provided for by the Labor Code.

At the written request of the employee or with his written consent, the employee may be transferred to permanent work with another employer. In this case, the employment contract at the previous place of work is terminated.

Does not require employee consent moving him from the same employer to another workplace, to another structural unit located in the same area, entrusting him with work on another mechanism or unit, if this does not entail a change in the terms of the employment contract determined by the parties.

It is prohibited to transfer or relocate an employee to a job that is contraindicated for him due to health reasons.

In the event that, for reasons related to changes in organizational or technological working conditions (changes in equipment and production technology, structural reorganization of production, etc.), the terms of the employment contract determined by the parties cannot be preserved; they can be changed at the initiative of the employer, with the exception of changes in the employee’s labor function.

The employer is obliged to notify the employee in writing of the terms of the employment contract determined by the parties, as well as the reasons that necessitated such changes, in writing no later than two months, unless otherwise provided by the Labor Code.

If the employee does not agree to work under the new conditions, the employer is obliged to offer him in writing another job available to the employer. In this case, the employer is obliged to offer the employee all vacancies available in the given area that meet the specified requirements. The employer is obliged to offer vacancies in other localities if this is provided for by the collective agreement, agreements, or employment contract.

If there is no specified work or the employee refuses the offered work, the employment contract is terminated.

In the event that reasons related to changes in organizational or technological working conditions may lead to mass layoffs of workers, the employer, in order to preserve jobs, has the right, taking into account the opinion of the elected body of the primary trade union organization, to introduce a part-time or part-time working week for a period of up to six months.

If the employee refuses to continue working part-time or part-time, the employment contract is terminated. In this case, the employee is provided with appropriate guarantees and compensation.

classification of transfers to another job

depending on the need to take into account the employee’s opinion translations to another job are divided into:

1. carried out with the written consent of the employee;

2. obligatory for the employee and carried out without taking into account his consent.

Depending on the period, permanent transfers and temporary ones are distinguished. With a permanent transfer, the terms of the contract change completely, i.e. other work is provided for an indefinite period. A temporary transfer keeps the employee in his permanent job. types of temporary

1. By agreement of the parties (including to replace a temporarily absent employee)

2.Due to production needs

3. Due to medical opinion

All permanent transfers can be classified by change of place of work:

1) transfer to another job with the same employer;

2) transfer to work in another area together with the employer;

3) transfer of an employee at his written request or with his written consent to work with another employer.

transfer of an employee to another permanent job with the same employer is carried out:

1) if in accordance with honey. In conclusion, the employee needs permanent transfer to another job;

2) in the event of a change in the terms of the employment contract determined by the parties for reasons related to changes in organizational or technological working conditions, if the employee does not agree to work under the new conditions;

3) when reducing the number or staff of employees of an organization or individual entrepreneur;

4) if the employee is not suitable for the position held or the work performed due to insufficient qualifications confirmed by the results of certification;

5) in case of disqualification or other administrative punishment that precludes the employee from fulfilling his duties under the employment contract;

6) in case of expiration, suspension of validity for a period of up to two months or more than two months, or deprivation of an employee of a special right (license, right to drive a vehicle, right to carry a weapon, etc.) in accordance with the Federal Law and other legal acts of the Russian Federation, if this entails the impossibility of the employee fulfilling his duties under the employment contract;

7) upon termination of admission to the state. confidentiality if the work performed requires such access;

46. ​​Temporary transfer to another job

Temporary transfer to another job

By agreement of the parties, concluded in writing, an employee may be temporarily transferred to another job with the same employer for a period of up to one year, and in the case where such a transfer is carried out to replace a temporarily absent employee, whose place of work is retained in accordance with the law , - before this employee goes to work. If, at the end of the transfer period, the employee’s previous job is not provided, and he did not demand its provision and continues to work, then the condition of the agreement on the temporary nature of the transfer loses force and the transfer is considered permanent.

In the event of a natural or man-made disaster, industrial accident, industrial accident, fire, flood, famine, earthquake, epidemic or epizootic, and in any exceptional cases threatening the life or normal living conditions of the entire population or part of it, the employee may be transferred without his consent for a period of up to one month to work not stipulated by the employment contract with the same employer in order to prevent these cases or eliminate their consequences.

Transfer of an employee without his consent for a period of up to one month to a job not stipulated by an employment contract with the same employer is also permitted in cases of downtime (temporary suspension of work for reasons of an economic, technological, technical or organizational nature), the need to prevent destruction or damage to property or temporary replacement an absent employee, if downtime or the need to prevent destruction or damage to property or to replace a temporarily absent employee is caused by emergency circumstances specified in part two of this article. In this case, transfer to a job requiring lower qualifications is permitted only with the written consent of the employee.

When transfers are made in cases provided for in parts two and three of this article, the employee is paid according to the work performed, but not lower than the average earnings for the previous job.

47. Procedure for registration, acceptance and termination of an employment contract. Severance benefits

This is necessary in brief

Termination of an employment contract is formalized by order (instruction) of the employer.

The employee must be familiarized with the order (instruction) of the employer to terminate the employment contract against signature. At the request of the employee, the employer is obliged to provide him with a duly certified copy of the specified order (instruction). In the event that an order (instruction) to terminate an employment contract cannot be brought to the attention of the employee or the employee refuses to familiarize himself with it against signature, a corresponding entry is made on the order (instruction).

The day of termination of the employment contract in all cases is the last day of work of the employee, with the exception of cases where the employee did not actually work, but in accordance with this Code or other federal law, he retained his place of work (position).

On the day of termination of the employment contract, the employer is obliged to issue the employee a work book and make payments to him in accordance with Article 140 of this Code. Upon written application by the employee, the employer is also obliged to provide him with duly certified copies of documents related to work.

An entry in the work book about the basis and reason for termination of the employment contract must be made in strict accordance with the wording of this Code or other federal law and with reference to the relevant article, part of the article, paragraph of the article of this Code or other federal law.

If on the day of termination of the employment contract it is impossible to issue a work book to an employee due to his absence or refusal to receive it, the employer is obliged to send the employee a notice of the need to appear for the work book or agree to send it by mail. From the date of sending this notification, the employer is released from liability for the delay in issuing the work book. The employer is also not responsible for the delay in issuing a work book in cases where the last day of work does not coincide with the day of registration of termination of employment relations upon dismissal of an employee on the basis provided for in subparagraph "a" of paragraph 6 of part one of Article 81 or paragraph 4 of part one of Article 83 of this Code, and upon dismissal of a woman whose employment contract was extended until the end of pregnancy in accordance with part two of Article 261 of this Code. Upon written request from an employee who has not received a work book after dismissal, the employer is obliged to issue it no later than three working days from the date of the employee’s application.

Making settlements upon dismissal

1. An employee must submit an application for resignation two weeks in advance. Exceptions are cases of dismissal during the probationary period and when a contract for temporary work has been drawn up. In these cases, the application is submitted three days before dismissal.

2. Full monetary settlement with the employee must be made regardless of whose initiative the dismissal occurs - at one’s own request or at the initiative of the employer.

3. The amount earned during the current period, compensation for unused vacation days and all due cash bonuses and rewards are subject to payment.

4. If an employee took vacation earlier than the required 12 months, then the entire amount of overpaid vacation days is deducted from the total calculation upon dismissal.

5. Compensation for unused vacation should be calculated based on average earnings for the 12 months that were the last before dismissal. Even if the salary was lower or higher before.

6. All amounts paid for the 12 months for which insurance premiums were calculated must be added up, divided by 12, multiplied by the number of days of unused vacation, added the amount earned for the current period, the regional coefficient. Subtract 13% income tax from the resulting number. Give the received amount to the employee as payment.

7. If dismissal occurs at the initiative of the employer for waste of material assets, then the funds for the shortage must be deducted from the general calculation.

8. If the time is not fully worked before the start of the next vacation, compensation for it is calculated based on the average daily earnings of the funds actually earned, which must be divided by the days actually worked and multiplied by the allotted vacation days.

9.An employee who has worked at the company for 11 months must be paid vacation compensation for the entire year.

10.If more than 15 days are worked in the current month, then vacation for that month is paid in full. Less than 15 days – vacation days for a given month are not compensated.

11.Employees who quit without working for 1 month are not paid compensation for vacation. For those who have worked for more than a month and quit during the probationary period, compensation is calculated at the rate of 2 days for each month worked.

Severance benefits:

Upon termination of the employment contract, the employing organization must make severance payments. The employee is entitled to the following payments upon dismissal:

wages for days worked in the month of dismissal;

compensation upon dismissal for unused vacation.

Compensation upon dismissal is paid regardless of the reason for the dismissal of the employee. Compensation upon dismissal must be paid to the employee for all unused vacations (Part 1 of Article 127 of the Labor Code). Upon dismissal, an employee has the right to refuse compensation upon dismissal for unused vacation and take off the required vacation days. In this case, the day of dismissal will be considered the last day of vacation. Before calculating compensation upon dismissal, the length of service at the company is determined. Work experience is determined in accordance with the provisions of Article 121 of the Labor Code. The time when an employee was absent from work without good reason, time of maternity leave, time of vacation at his own expense exceeding 14 calendar days is not included in the vacation record for calculating compensation upon dismissal.

The procedure for calculating compensation upon dismissal for unused vacation is as follows: the number of days of unused vacation of the employee is multiplied by the average daily earnings.

To calculate the number of days of unused vacation, the procedure for calculating compensation upon dismissal specified in the Rules on regular and additional vacations (approved by Resolution of the People's Commissariat of the USSR dated April 30, 2030 No. 169) is applied. Payments upon dismissal for each “non-vacation” day are determined based on the average daily earnings for the last 12 months. Calculation of compensation upon dismissal is made based on the average daily earnings, determined in accordance with Article 139 of the Labor Code. To calculate average earnings, all types of payments provided for by the remuneration system used by the employer are taken into account.

Depending on the reason for dismissal, other payments upon dismissal are provided:

severance pay upon dismissal;

average earnings maintained during the employment of a dismissed employee.

Depending on the reason for dismissal, severance pay may be paid in the amount of:

two-week average earnings;

monthly average earnings.

As part 3 of Article 178 of the Labor Code states, a company must pay severance pay upon dismissal in the amount of two weeks’ earnings if the dismissal occurred due to the following circumstances:

refusal of the employee to transfer to another job, necessary for him in accordance with the medical report;

conscription of an employee for military service;

reinstatement of another employee who previously performed this work;

refusal of the employee to be transferred to work in another location together with the employer.

Upon termination of an employment contract with an employee engaged in seasonal work due to the liquidation of the organization or staff reduction, severance pay is paid in the amount of two weeks' average earnings (Part 3 of Article 296 of the Labor Code of the Russian Federation).

Upon dismissal, severance pay in the amount of monthly average earnings is due to the employee:

if the company is liquidated;

if there is a reduction in the number of employees;

if the termination of the employment contract occurred due to a violation of the rules for its conclusion through no fault of the employee. If a violation of the rules of the employment contract is due to the fault of the employee, then severance pay is not paid to him (Part 3 of Article 84 of the Labor Code of the Russian Federation).

48. General characteristics of the grounds for termination of an employment contract and their classification

An employment contract is terminated only if there are certain grounds for its termination. The basis for termination of an employment contract is a vital circumstance, which is enshrined in law as a legal fact for terminating the labor relations of employees with employers.

Termination of an employment contract entails the end of the employment relationship.

The law uses several terms to denote the end of an employment relationship. In particular, the terms about termination of an employment contract, termination of an employment contract, and dismissal of an employee are used.

The term “termination of an employment contract” is general, since it covers all cases of termination of employment without exception. The term “termination of an employment contract” refers to cases of termination of employment relations initiated by one of the parties to this contract. Dismissal terminology is used at the end of an employment relationship with a specific employee; it is, in particular, used when issuing orders (instructions) on the dismissal of employees. Thus, the term “dismissal of an employee” is of a personal nature, as it is used at the end of the employment relationship of a particular employee.

In Art. 77 of the Labor Code of the Russian Federation lists general grounds for termination of an employment contract:

1) agreement of the parties (Article 78 of the Labor Code of the Russian Federation);

2) expiration of the employment contract (Article 79 of the Labor Code of the Russian Federation), except for cases where the employment relationship actually continues and neither party has demanded its termination;

3) termination of an employment contract at the initiative of the employee (Article 80 of the Labor Code of the Russian Federation);

4) termination of an employment contract at the initiative of the employer (Articles 71 and 81 of the Labor Code of the Russian Federation);

5) transfer of an employee, at his request or with his consent, to work for another employer or transfer to an elective job (position);

6) the employee’s refusal to continue working in connection with a change in the owner of the organization’s property, a change in the jurisdiction (subordination) of the organization or its reorganization (Article 75 of the Labor Code of the Russian Federation);

7) the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (Part 4 of Article 74 of the Labor Code of the Russian Federation);

8) the employee’s refusal to transfer to another job, which is necessary for him in accordance with a medical report issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, or the employer does not have the corresponding job (parts three and four of Article 73 of the Labor Code of the Russian Federation) ;

9) the employee’s refusal to be transferred to work in another location together with the employer (part one of Article 72.1 of the Labor Code of the Russian Federation);

10) circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation);

11) violation of the rules for concluding an employment contract established by the Labor Code of the Russian Federation or other federal law, if this violation excludes the possibility of continuing work (Article 84 of the Labor Code of the Russian Federation).

An employment contract may also be terminated on other grounds provided for by the Labor Code of the Russian Federation and other federal laws.

Grounds for termination of an employment contract, which are in Art. 77 of the Labor Code of the Russian Federation are formulated in general terms and are specified in other norms of the Labor Code of the Russian Federation; they can be divided into 4 types. Firstly, the grounds for termination of an employment contract at the initiative of the employee. Secondly, the grounds for termination of an employment contract at the initiative of the employer. Thirdly, the grounds for termination of an employment contract, which do not depend on the will of its parties. Fourthly, the grounds for termination of the employment contract, which are related to violation of the rules of employment established by federal laws, if this violation precludes the possibility of continuing work.

49. Termination of an employment contract at the initiative of the employee

Article 80 of the Labor Code gives the employee the right to terminate the employment contract at any time on his own initiative by notifying the employer in writing two weeks in advance. For valid reasons supported by documents (enrollment in an educational institution, retirement and other cases), the employer is obliged to terminate the employment contract within the period specified in the employee’s application. After the warning period expires, the employee has the right to stop working, and the employer is obliged to issue him a work book and make a payment.

An employee who leaves work before the expiration of the notice period may be dismissed before the end of two weeks at the initiative of the employer for absenteeism without good reason. When dismissing a temporary or seasonal employee at his own request, the notice period is three days. The employer does not have the right to dismiss an employee before the expiration of the notice period without his consent at his own request. By agreement between the employee and the employer, the contract can be terminated before the expiration of these terms.

An employee can also give notice of dismissal during vacation, business trip, or illness.

The notice period allows the employer to select a new employee to replace the resigning employee. Its calculation begins on the next day after the calendar date on which the application was submitted.

If, after the expiration of the notice period, the employment contract has not been terminated and the employee does not insist on dismissal, then the contract is considered continued.

If it is impossible for an employee to continue working (retirement, enrollment in studies, etc.), as well as in cases of violation by the employer of labor legislation, the terms of a collective or labor agreement in relation to this employee, the employer is obliged to terminate the employment contract within the period specified by the employee, including and immediately.

An employee who has submitted a resignation letter has the right to withdraw his application at any time before the expiration of the notice period, except in the case where another employee has already been invited in writing to take his place.

50. Termination of an employment contract at the initiative of the employer in the absence of guilty actions of the employee

Termination of an employment contract at the initiative of the employer without the fault of the employee.

1. In accordance with Art. 81 of the Labor Code of the Russian Federation in the case of:

Liquidation of the organization or termination of activities by the employer - an individual;

Reduction in the number or staff of the organization's employees;

Changes in the owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);

Making an unjustified decision by the head of the organization, his deputies and the chief accountant, which entailed a violation of the safety of property, its unlawful use or other damage to the property of the organization;

A single gross violation by the head of the organization or his deputies of their labor duties;

Termination of admission to government secret if the work performed requires access to the state. secret;

In other cases established by law.

Dismissal at the initiative of the employer is not allowed: during the period of temporary incapacity for work of the employee and while he is on vacation (except in the case of liquidation of the organization or termination of activities by the employer as an individual); when the number or staff of an organization’s employees is reduced, as well as in the event of an employee’s inadequacy for the position held or the work performed, if it is possible to transfer the employee with his consent to another job.

Any person of working age can get a job. But there are many different professions that require a person to perform certain actions in a specific place. It often happens that people of exactly the same profession, working at different enterprises, have completely different working conditions. But what is meant by this phrase? Let's look at examples to clarify this concept.

Work and rest schedule

When applying for an official job, a person must undergo an interview and become familiar with his future place of activity. But first, let's look at the working conditions associated with the regime. Let's say the shift starts at 8:00 and ends at 17:00. Lunch break - from 12.00 to 13.00.

This is one of the working conditions. Now imagine that an employee in the same position works on a different schedule due to a complex technical process. His shift starts at 13:00 and ends at 22:00.

Indoors or outdoors

Now consider the example of a real estate agency employee. Unlike, for example, a teacher or a bank employee, this specialist often moves from one area of ​​the city to another.

Occasionally appears in the office. Accordingly, the working conditions of a teacher and a bank employee are calmer - in any weather they are warm and under a roof. A realtor, on the contrary, must visit one or another property in any weather.

Working under a roof

Also, working conditions should mean the parameters of the room:

• microclimate (warm/cold, presence/absence of air conditioning/heating systems);
• availability of a bathroom;
• illumination;
• condition and quality of furniture;
• a serviceable and suitable tool for the job;
• availability of comfortable uniform (if necessary);
• availability of places for breaks;
• absence/presence of repairs;
• coolers/machines with drinking water.

Of course, all this is the conditions under which the employee must work.

Harmfulness

There are enterprises and professions associated with harmful and dangerous working conditions. Let's look at a few examples. Let's start with the foundry worker. The fact is that the room is constantly hot, the combustion process occurs. As a result, not only heat is released into the room, but also harmful fumes from metals, plastics and other products. That is, a person has to work in difficult conditions for the entire shift. But foundry workers are paid extra for hazardous working conditions and are sent to retirement earlier.

Railway and subway employees and pilots are also at risk. This also includes:

• electricians;
• submariners;
• firefighters;
• ambulance workers;
• builders, etc.

In fact, these professions require constant concentration and vigilance.

Military personnel, nuclear power workers, and miners are constantly in mortal danger. Therefore, their working conditions can be considered one of the most dangerous, since disaster can happen at any moment. And their lives depend on dexterity, ingenuity, professionalism and attentiveness.

Management and team

Working conditions may also depend on superiors and colleagues. We often hear phrases such as: “It’s impossible to work with them in such conditions!” What does this mean? For example, the boss demands a report. The workers compile it competently and on time. In fact, there is nothing to complain about.

But the manager doesn’t like the whole document because he’s in a bad mood. Accordingly, it is difficult for workers to work in such conditions. But if the boss is always in a good mood and adequate, then everyone’s work will go smoothly.

Thus, working conditions are the entire characteristic of activity in a particular profession that requires the fulfillment of certain requirements.

As a basis for concluding a fixed-term employment contract, according to Art. 58 Labor Code of the Russian Federation, The conditions for performing the upcoming work may also be taken into account:

A) harmful, dangerous, difficult environmental and climatic conditions (for example, a fixed-term employment contract of the established form in accordance with the law “On State Guarantees and Compensations for Persons Working and Living in the Far North and Equivalent Areas”); b) conditions for the performance of the duties of a temporarily absent employee, whose place of work is retained in accordance with Art. 256 of the Labor Code of the Russian Federation (these are the working conditions of an employee hired for the period of a woman’s maternity leave, as well as her leave to care for a child under three years of age) The peculiarity of working conditions is caused by the presence of benefits and guarantees provided by labor legislation to a pregnant woman, as well as a woman who has a child under three years of age); c) working conditions in small business organizations, as well as for employers - individuals. Unfortunately, in practice there are cases when other criteria for assessing the circumstances (reasons) for concluding a fixed-term employment contract are used. These cases violate the principles of regulation of labor relations formulated in Art. 2 Labor Code of the Russian Federation, legal rights of workers and entail disputes in court. Thus, a fixed-term employment contract is sometimes concluded with persons entering work in organizations created for a “previously defined period of time,” as well as with “persons to perform a predetermined job.” In Russian, the word “deliberately” is used to denote a negative object or event, for example, “deliberate scoundrel” or “deliberate lie,” i.e. information that is used with selfish intent, since it is known in advance that it does not correspond to reality. It is no coincidence that the word “knowingly” is used in investigative and judicial practice to legally qualify the unlawful behavior of a person falling under one or another crime. Considering the meaning of the word obviously, it is not difficult to imagine what “organizations created for a clearly defined period of time” are “one-day companies”. The practice of applying Article 59 of the Labor Code Additional attention in the practice of applying labor legislation requires Article 59 of the Labor Code of the Russian Federation, which from the first words contains an alternative: “A fixed-term employment contract can be concluded...”. In other words, it can be concluded, but not always and not necessarily. Plenum of the Supreme Court of the Russian Federation in a resolution dated 17.03.04 No. 2 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” expressed the following: “...because Article 59 of the Labor Code provides for the right, and not the obligation, of the employer to conclude a fixed-term employment contract in the cases provided for by this norm, then the employer can exercise this right subject to the general rules for concluding a fixed-term employment contract established Article 58 of the Labor Code.” The general rules, as mentioned above, are associated with the impossibility of forming labor relations for an indefinite period, taking into account the nature of the work ahead or the conditions of its implementation. In this regard, attention should be paid to the conclusion of employment contracts with persons working part-time. As a general rule, an employment contract is concluded with part-time workers under paragraph one Art. 58 Labor Code of the Russian Federation- For undefined period. The fact of part-time work in itself is not a basis for concluding a fixed-term employment contract. The results of a competition in which scientific or teaching staff, as well as teaching staff, participated cannot be the basis for concluding a fixed-term employment contract. Moreover, the wording “before holding a competition to fill the position” has nothing to do with the basis for concluding a fixed-term employment contract. An employment contract drawn up with this wording is considered to be concluded for an indefinite period. According to Art. 59 Labor Code of the Russian Federation, A fixed-term employment contract can be concluded with old-age pensioners, as well as with persons who, for health reasons and in accordance with a medical certificate, are allowed to work exclusively of a temporary nature. The text of the law does not explain what the wording “work of an exclusively temporary nature” means, although it is decisive for the type of employment contract that can be concluded with this category of workers. In order to decide what type of employment contract to conclude with age pensioners, and therefore to determine the features of the labor relationship that will be formed with these employees, you should use an already known concept that has a place in the law. We are talking about work for up to two months from Chapter 45 of the Labor Code of the Russian Federation. Here, work is “exclusively temporary” and is an indicator of irregular work that cannot be performed evenly from day to day over a long period of time (quarter, year). Thus, with age pensioners, as well as with persons whose official duties are determined by their state of health according to a medical report, labor relations are built under an employment contract for a period of up to two months, according to Art. 289 Labor Code (features of labor relations for this type of contract were discussed above). We can only clarify that in the case when a pensioner works at an enterprise for a year, and this entire period of work is formalized by concluding second and subsequent contracts for a period of up to two months, an illegal substitution of an employment contract for an indefinite period occurs. The fact of numerous conclusions of employment contracts excludes the characteristic signs of irregular work and insignificant amount of work, which are the basis for concluding a fixed-term employment contract for a period of up to two months. According to Art. 58 Labor Code of the Russian Federation a fixed-term employment contract concluded without sufficient grounds is considered to be concluded for an indefinite period. A fixed-term employment contract can be concluded with a student studying at a university, but again, subject to the general rules for concluding this type of contract. In accordance with Art. 57 Labor Code of the Russian Federation a fixed-term employment contract must indicate two dates: the exact start date of work and the exact end date of work. It is unacceptable to replace the exact date of completion of work with the expression “before graduation” or “during internship”. With this formulation, the employment contract is initially considered to be concluded for an indefinite period. With regard to a fixed-term employment contract concluded in compliance with the general procedure established Article 58 of the Labor Code, then its validity period cannot be shortened or terminated by the fact that the employee-student graduates from the university in which he studied. Recently, cases of concluding an employment contract with the wording “for a probationary period” have become more frequent. In this case, during the probationary period, wages are set at a reduced rate. The text of the document indicates that a fixed-term employment contract has been concluded, which will be terminated upon expiration if the test result is unsatisfactory. Such tricks with illegal substitution of legal concepts are a gross violation of the principles of regulation of labor relations, outright discrimination against the employee, and the use of forced labor against him. In this case, there can be no question of a fixed-term employment contract. There is no doubt that the employment contract here is considered concluded for an indefinite period, according to paragraph one Article 58 of the Labor Code.