In the process of hiring a subordinate, the head of the institution is required to conclude a service contract with him. This document must indicate the period during which the employee will fulfill the duties assigned to him. As a rule, all service agreements are drawn up for an unspecified period. The exception here is when it is possible to sign a fixed-term contract with an employee. This will be discussed in more detail in this article.
What you need to know
The main document for any employee of the organization is a performance contract, which can be concluded with him for a certain period of time or without specifying a term. This is evidenced by Art. 58 of the Labor Code of the Russian Federation. It is also important to note here that the period of validity of a fixed-term service contract cannot be more than five years. In addition, the specified labor contract is concluded with a citizen only in cases prescribed by law.
If the head of the organization does not have grounds for temporary registration of an employee, then he must accept the person to work without setting a deadline. Otherwise, the court may declare such a contract concluded for an indefinite period. This rule is fixed in Art. 58 of the Labor Code of the Russian Federation.
Contract validity
Basically, all service agreements with employees are concluded for an indefinite period of time. The exception here is the cases prescribed in article 59 of the labor code. A fixed-term contract is concluded:
- in the absence of a permanently working subordinate (vacation, business trip, sick leave);
- if you need to make temporary or seasonal work;
- with people who will work in another state;
- to carry out activities that are not part of the usual work of the organization (installation, reconstruction);
- with citizens who are employed in companies created for a specified period (to achieve a specific goal);
- for a person to undergo practice and internship;
- when filling civil service posts;
- when a person is sent from a job center to community service.
There are also other cases in the legislation that allow a person to be hired only for a specified period of time.
Spelled out in code
Art. 58 of the Labor Code of the Russian Federation indicates that a service contract is concluded for a certain period only if, due to the characteristic features of the work and the conditions for its implementation, it is impossible to sign an agreement with a person for an unspecified period. Thus, a citizen can be temporarily admitted to the organization only when it is prescribed by law.
It should also be noted that the fixed-term contract is concluded by agreement between the subordinate and his boss in the cases prescribed in the Labor Code.
Important condition
In the event that the employee’s performance agreement does not specify the period of validity, this document is unlimited. This rule is spelled out in Art. 58 of the Labor Code of the Russian Federation.
A service contract signed by the parties for an indefinite period cannot be changed by the head of the enterprise to an urgent agreement.
Continuation of work
If a person after the termination of the contract does not want to stop his career at the enterprise, and the head of the organization does not insist on his dismissal, then the agreement is considered to be unlimited from that moment on. This rule is spelled out in Art. 58 of the Labor Code of the Russian Federation. The condition on the urgency of the contract is considered to be invalid.
In practice, temporary employment contracts are concluded with the heads of institutions and organizations. By law, this is possible only by agreement of the two parties.
The maximum validity period of a fixed-term contract cannot be more than five years. This is stated in paragraph 2 of Art. 58 of the Labor Code of the Russian Federation. If a person continues to carry out official activities after the term of the contract has expired, then he is deemed to be employed permanently.
What happens in practice
Part 2, Art. 58 of the Labor Code of the Russian Federation does not prohibit the head from signing a fixed-term contract with a subordinate if, by the nature and working conditions, the employee's activity cannot be permanent. This applies to cases when another employee was invited to replace a temporarily absent citizen. The official activities of the latter will continue until the moment when a subordinate takes up his duties, who works in the organization on an ongoing basis. This rule is spelled out in law.
Thus, temporary service relationships do not continue indefinitely. This is due to the fact that the newly adopted person performs the work of an absent subordinate. After the permanent employee goes to work, the contract with the temporary employee will be terminated. This confirms Art. 58 of the Labor Code of the Russian Federation.
A fixed-term employment contract is signed with those citizens who are accepted for seasonal work. For example, the service activities of the cloakroom manager is possible only in the cold season. Because in the summer the company will not need the services of this employee.
A comment
A service contract with a subordinate can be concluded both for an indefinite period and for a fixed period. This is written in Art. 58 of the Labor Code of the Russian Federation. The Russian Labor Code here does not allow one to disagree with comments. Indeed, if there are no grounds for concluding a fixed-term contract with a person, then the head of the enterprise is obliged to accept a subordinate to the post on an ongoing basis. This is indicated by law.
In the event that after the expiration of the service agreement the person continues to work at the enterprise, and the head of the organization does not want to dismiss him, then the contract acquires the status of unlimited. This is stated in Part 4 of Art. 58 of the Labor Code of the Russian Federation.
Prohibited
It is not allowed to sign a fixed-term contract with subordinates in order to deprive them of guarantees and compensations provided to employees who carry out their official activities on an ongoing basis. This is stated in Art. 58 of the Labor Code of the Russian Federation. It is impossible to disagree with the comments here. Because a temporary contract with an employee is executed only in cases stipulated by law.
If a woman was pregnant during work under a fixed-term contract, then at her written request, the head of the organization must extend the service agreement with her until the birth of the child. In the case when the latter performed the duties of a temporarily absent subordinate who went to work, the boss can transfer her to another position (if the organization has free vacancies). Otherwise, the contract with the pregnant employee must be terminated.
Existing features
Art. 58, 59 of the Labor Code of the Russian Federation indicate that, by agreement between the employee and the manager, a temporary labor contract is allowed. But only with certain categories of workers, which include:
- part-time citizens;
- pensioners, as well as persons who, in connection with a medical opinion, can only perform temporary work;
- people who are employed by entrepreneurs (the number of employees of the latter is not more than thirty-five people, in retail trade - 20);
- full-time students;
- heads and chief accountants of organizations, as well as part-time workers;
- people who go to work in the Far North;
- citizens who are members of the crew of shipping and ships;
- creative citizens (media and cinema workers);
- citizens who were elected to the post by competition.
Arbitrage practice
With the new employee, the manager entered into a service contract for a certain period of time without giving any reason. In accordance with the established norms of the law, this can only be done in cases that are prescribed in the Labor Code. The employee, outraged by this attitude of the boss, was forced to sue the organization.
From the case materials the following is evident.
At the meeting, the subordinate explained that the boss did not have grounds for his temporary employment . In addition, this position was not occupied by anyone. Therefore, the citizen asked to recognize the service contract as perpetual. He substantiated his position, proceeding from the norm of Art. 58 of the Labor Code of the Russian Federation. The term of the employment contract, in the opinion of the employee, is set only if the labor code indicates this.
After examining all the materials of the case, the court concluded that the head committed substantial violations of the law. Moreover, this authority did not establish grounds for leaving the citizen's application unsatisfied. Therefore, the court agreed with the position of the person. This service contract was concluded for an unspecified period of time.
It can be seen from the above example that the court almost always comes to the defense of citizens, not the leaders of organizations. And as practice shows, this authority can change the term of the employment contract. Art. 58 of the Labor Code of the Russian Federation indicates that the court, without establishing grounds for concluding a temporary contract with an employee, recognizes the service agreement as unlimited.
After the decision is made by the authority, the subordinate again takes up his duties.