According to the law, any labor relationship between the employer and the employee must be in writing. This applies to those employers who are a legal entity or act as an individual entrepreneur.
Fixed-term and permanent employment contracts - two forms establishing the rights and obligations of the employer and employee. For the conclusion of each specific
type of document, there are grounds stipulated in the Labor Code. However, in practice, most employers prefer to draw up contracts limited to a certain period. The arguments are often the seasonal or temporary nature of the work, as well as other equally valid reasons.
All participants in an employment relationship should be aware that there is a specific list of situations that may be grounds for drawing up a fixed-term contract. This order is noted in the TC. In other cases, an employment contract must be concluded indefinitely.
Definition and types
An employment contract refers to a type of bilateral agreement between an employer and an employee that describes all their duties and rights.
Based on whether the duration of the document is indicated, it is urgent (STD) or unlimited (BTC). Unlike STD, it is necessary to comply with more conditions in order to terminate an unlimited contract. An employee or employer should be shown initiative and indicate the reasons that influenced the severance of labor relations (their list is specified in the Labor Code of the Russian Federation). That is, unilateral termination is impossible.
The specifics of a perpetual employment contract (BTC)
The Labor Code of the Russian Federation contains a list of features inherent in a perpetual contract. This document does not indicate the expiration date. This means that if the parties do not have claims against each other and do not change the terms of the contract, it remains valid for as many years as necessary.
In addition, when concluding a perpetual contract, the parties describe their duties in much more detail, and over time the requirements may be changed.
The legal grounds giving the right to conclude an employment contract indefinitely are:
- Desire expressed by both parties.
- The constant need of the enterprise for this employee.
- The right to apply for an employment relationship in this way. This applies to adults and legal persons.
If we are talking about the employment of a fourteen-year-old teenager who has not provided the consent of the parents or guardian, then there are no grounds for concluding an unlimited employment contract.
How to enter into a perpetual contract: sequence of execution
The process of drafting and execution of a perpetual employment contract includes the following stages:
- Preparation of documents, on the basis of which the columns of the agreement will be filled out (this includes passports, work books, diplomas and certificates of education, SNILS).
- Development and drafting of a document.
- Coordination, signing of the contract by the employer and employee.
To draw up an employment contract, the following materials may be required:
- Worker's identity document (passport, residence permit).
- Proof of employee qualifications, indicating their ability to perform this labor function (diploma, work permit, certificate of completion of courses).
- Employment history. In the event that the employee does not have this document, that is, the company is his first official workplace, the issuer's obligation is to issue him a work book.
- Certificate of retirement insurance of a person.
- Military ID.
- Identification number (applies to optional documents).
Sometimes an unlimited contract of employment by an employee can be concluded only if additional documents are available. For example, when working with food, the applicant must provide a medical examination certificate, it is impossible to find a job for minors without the written consent of the parents or guardian, and if you want to take a position in the government, you will need a document certifying the absence of a criminal record. Certificates of family composition, from a neuropsychiatric or drug dispensary, may also be needed. If the employer requires these documents legally, the employee is not entitled to refuse to provide them.
An indefinite contract shall enter into force on the day when the employee of the enterprise begins to fulfill his labor duties. The law does not establish a clear form for such a document.
Unlimited employment contract: pattern and structure
Often, human resources employees use freely available samples to draw up employment contracts. If necessary, they are adjusted in accordance with the specifics of a particular enterprise.
Despite the fact that it is not difficult to choose a sample of a perpetual contract, its contents should be checked. The document must be prepared taking into account all legislative norms.
The general structure and order of the items is as follows:
- Subject of the contract. The essence of the employee’s position is described here.
- The period for which the agreement is concluded. The presence of this clause emphasizes the term of the contract.
- Description of the rights and obligations of the employee.
- Rights and obligations of the employer.
- The list of competencies and guarantees of the agreement. Here indicate hypothetical unforeseen situations (industrial accidents, bankruptcy of an enterprise, etc.), as well as benefits and guarantees that will be provided in case of their implementation.
- Schedule of working hours and rest time (number of working days and days off, lunch break, vacation).
In the event that an employee is hired with a probationary period, this must be prescribed in the document. The placement of this information is left to the discretion of the author: you can create a separate item or include it in the schedule of work and rest.
The photo below shows a universal sample of a perpetual contract.
The validity of the document is not lost in the presence of descriptions and / or typos. Only the absence of any mandatory details can lead to the fact that it will be declared invalid (date, signature, stamp).
Transfer of employee from contract to BTC
Quite often, an employee of an enterprise who has been hired for a certain time shows a desire to stay in the company for a long time. With the consent of the tenant, a fixed-term contract can be transferred into a perpetual contract.
In some cases, this procedure can be performed even if there are objections from the employer.
How to change the terms of the contract
If the employer does not intend to continue cooperation with his subordinate, he is obliged to notify him of the impending dismissal three days before the final date of validity of the fixed-term contract. The simplest transfer of an employee from a fixed-term contract to a permanent contract is carried out ignoring the termination of the agreement.
A fixed-term employment contract becomes indefinite if its validity period expires, but the employee continues to perform his functions at the enterprise. That is, labor relations have not actually changed.
In this case, the time restrictions indicated in the document lost their meaning, which became the basis for considering the contract to be unlimited.
Contract termination
It should be clarified that fixed-term contracts cannot be terminated automatically. This procedure involves making appropriate entries in work books, issuing an order of dismissal, as well as making settlements with an employee.
When a perpetual contract came into force in case of non-observance of the contract termination rules, the employee must be recognized as a full-fledged member of the enterprise team. All rights and privileges become available to him, as well as the payment of compensations and incentives.
To dismiss such an employee, the employer should rely on generally accepted grounds specified in the Labor Code.
If the fixed-term contract is not fixed-term
The date determining the end of the period of cooperation between the employer and the employee is an integral condition of the contracts. Only a perpetual contract does not contain this information.
In a situation in which the end date of the contract remains open (not indicated by the employer), and there is also no condition on the urgent nature of the work, the document drawn up can be recognized by BTC.
Dismissal of an employee working under such an agreement due to termination of the contract is considered illegal. To protect his innocence, he may well go to court.
If the claims of the plaintiff are recognized as legitimate, the result will be the recognition of the employment contract as unlimited and the restoration of the dismissed employee at the previous workplace. Returning to the enterprise, the employee can expect to pay wages for those days when he could not work. In addition, the employer will be forced to compensate him for moral damage.
Is it possible to renegotiate a fixed-term contract many times
Managers of many enterprises often resort to the practice of renegotiating fixed-term contracts to carry out the same work. This technique is considered a violation of the law.
It is only allowed to sign a new contract if the validity of the former expired, but the task remained unresolved or the task was not completed.
When the employee, who was accepted on a temporary basis, actually became permanent, the indefinite validity of the contract (renegotiated STD) can be recognized in court.
What is an additional agreement?
In the absence of misunderstandings and claims between the employer and the employee, their general decision to continue cooperation serves as the basis for changing the terms of the fixed-term contract. This is possible by drawing up an additional agreement.
This document indicates the reason that served as the basis for changing the status of the employee. The clause that the contract is now considered a perpetual contract is a mandatory element of an additional agreement. The conclusion of this document is possible only after the employee has expressed his consent in writing.
The procedure for drawing up an additional agreement is dictated by the Labor Code of the Russian Federation. Its text should include the phrase that from the indicated moment the earlier fixed-term contract should be regarded as unlimited. New labor conditions may also be specified in the agreement.
BTC cannot become a contract
When transferring an employee to another position, the employer must issue a transfer order. Along with this, a new entry appears in the workbook.
A change in the type of contract (from urgent to indefinite) cannot be regarded as a change of position, because the type and size of transfers to funds, as well as accounting for working hours, remain the same.
A feature of a stand-alone labor agreement is the impossibility of its reverse transformation. This means that if the contract is concluded indefinitely, the employer does not have the right to establish any time frame for its validity.
Workers who have undergone unlawful dismissal, allegedly due to termination of the contract, can restore their rights in court. After an investigation, verification of documents and clarification of the true state of affairs, the claim can be satisfied. The result will be the reinstatement of the employee in the position and payment of the due compensation.
How do they make an order to change the type of contract
The decision to transfer an employee from a contract to a perpetual contract is accompanied by the issuance of the relevant order. Its author is the head himself, an employee of the personnel department or manager for personnel.
The content of the order confirms the legality of changing the type of employment contract.
In addition, the clauses of this document disclose the grounds for such actions (the contract was not renegotiated, the parties reached a mutual agreement, a written statement was received from the employee). In this case, it is separately mentioned that the employee supports the implementation of these actions (there is written confirmation or an additional agreement of the parties has been drawn up).
The drawn up order needs to be certified by the head. After that, he is handed over to the employee within three days. The document must be read, approved and signed by the employee.
In some cases, the head can break the BTC
In a number of situations that are listed by the Labor Code of the Russian Federation, the head of the enterprise or a person authorized by him can take advantage of the right to early termination of labor relations with an employee registered in accordance with the BTC:
- With a reduction in staff.
- In the event of bankruptcy of the company.
- If the employee does not cope with those duties that include his position.
- With a systematic (more than two times a year) violation of discipline or corporate ethics.
- If an employee is more than three hours late or leaves early (at the same time).
- If the employee was spotted in the territory belonging to the enterprise, while intoxicated.
- In case of temporary disability of the employee, which led to his long absence (more than four months). An exception is made for those workers who have been injured in the workplace.
- When the employee commits serious misconduct: theft, vandalism.
What may be disadvantageous BTC
Employers avoid the conclusion of perpetual contracts due to the appearance of additional obligations to employees and the state. From this perspective, the conclusion of this type of agreement has the following disadvantages:
- If the contract expiration date is not indicated, the employer does not have the opportunity to terminate the employment relationship with the employee. Dismissal should be based on legitimate reasons.
- The employer must pay the employee the stipulated incentives, provide compensation and social guarantees (for example, release on maternity leave).
For employees of enterprises and organizations, work under a fixed-term employment contract is more profitable than under a temporary contract. True, the termination of the latter usually takes place much easier and faster.
Termination of STD serves as a legal basis for the dismissal of an employee. However, being registered as a permanent employee, he is obliged to notify the company management two weeks before the date of his last business day.
It should be noted that a perpetual labor contract is more convenient and universal, as it helps to optimize the process of regulation of labor relations.