The provisions of the current legislation require the employer to sign an employment agreement with each hired employee. How correctly this document is drawn up determines whether any misunderstandings or problems will arise between the parties in the future. The conclusion of an employment agreement provides for a number of important nuances, which, in particular, includes the period of time for which the said agreement is concluded. So, let's take a closer look at the question of how long a contract can be concluded. employment contract.

Terms of concluding an employment contract

• for an indefinite period;
• for a certain period, the duration of which cannot be more than five years (fixed-term employment contract).

If the contract did not specify the period of its validity, it should be considered that it was concluded for an indefinite period. In a situation where neither party has put forward a demand to terminate the contract due to the fact that its validity period has expired and the employee continues to work, the condition of the urgency of the contract loses force and the agreement is automatically considered to be executed for an indefinite period of time.

This type is carried out exclusively in the manner and cases provided for by the provisions of Art. 59 Labor Code of the Russian Federation. More details about the duration of a fixed-term employment contract will be discussed below.

Contract for an indefinite period

When considering the question of how long an employment contract can be concluded, it is worth emphasizing that labor contract, drawn up for an indefinite period, is the most common type of employment agreement. This situation is caused by the fact that the vast majority of species of modern labor activity can be governed with a high degree of efficiency by the standard provisions of such a contract.

If the contract is intended to be for an indefinite period, it should contain provisions such as:

• conditions under which the contract can be terminated;
• immediate procedure and required conditions for termination;
• the time periods within which the parties must be notified of the termination of the contract;
• the procedure and conditions for accruing final payments to the employee;
• procedure for receiving/transferring valuables (if necessary);
• procedure for submitting reports (if necessary).

In all other respects, such an agreement must comply with the general rules for drawing up employment contracts and contain standard conditions.

Contract for a specific period

A contract drawn up for a certain period is called a fixed-term contract. As a rule, contracts of this kind are concluded in cases where:

• this is necessary due to the nature of work activity and the specific conditions of its implementation;
• this is stipulated by the relevant agreement concluded between the parties.

When examining the question of how long an employment contract can be concluded with an employee, it should be noted that labor legislation establishes an exhaustive list of grounds for concluding a fixed-term contract. As stated in Art. 58 Labor Code provisions, an employment contract drawn up for a specific period without any sufficient grounds for this should be considered drawn up for an indefinite period.

In practice, the most common of the above-mentioned grounds are the conclusion of contracts:

• for the period of performance of labor duties of an employee who is absent, but whose place is retained;
• having a temporary nature and lasting no more than two months;
• for seasonal work;
• with managers, deputies, as well as chief accountants;
• when working part-time;
• with working pensioners.

Expiration of a fixed-term contract

As established by the provisions, a fixed-term employment contract is subject to termination after the end of its validity period. The employee must be informed of the occurrence of this event by a special written notice, which is sent by the employer three days before the future dismissal.

The legislation also defines such features of the expiration of a fixed-term contract as:

• a contract concluded for the period of performance of any specific work is terminated after the said work is completed;
• a contract concluded for the period of performance of duties of an employee who is absent is terminated after the latter resumes performance of his duties;
• a contract concluded for the period of seasonal work is terminated at the end of the specified period.

Employment contract for a probationary period

When considering the question of how long a probationary employment contract can be concluded, it should be noted that labor legislation does not provide for specific rules in accordance with which an employee must be hired for a job that requires availability probationary period.

This right is delegated to the employer and, accordingly, is regulated by various regulations of a local nature - by personnel orders, staffing table etc. Basically, hiring employees with a probationary period is practiced in various state and municipal organizations. In commercial organizations, a probationary period is applied, as a rule, to employees who do not have work experience in their specialty.

It should be noted that a standard employment contract for work with a probationary period should contain the following necessary conditions, How:

• duration of the probationary period;
• test procedure;
• terms of payment for labor activity during this period;
• conditions and procedure for termination of the contract due to failure to complete the probationary period.

Employment contract with the manager

When considering the specifics of drawing up employment contracts, it is worth paying attention to the following question: for how long can an employment contract be concluded with the head of an institution?

The provisions of labor and civil legislation allow the possibility of concluding with the manager both a fixed-term employment contract and an agreement for an indefinite period.

A fixed-term employment contract is concluded if constituent documents The organization's term of office is fixed. In addition, a fixed-term contract can be concluded in such cases when:

• the decision on the appointment or election of a subject to the position of manager specifies the term of this appointment;
• there is an agreement between the organization and its leader, concluded for a certain period.

When examining the question of how long an employment contract can be concluded with a manager, it is necessary to keep in mind that since, according to legislative provisions (Article 58 of the Labor Code), the duration of a fixed-term agreement cannot be more than five years, then, accordingly, the period of authority of the manager does not may last longer than the specified period.

Collective agreement

When examining the question of how long an employment contract can be concluded, it is necessary to mention such a concept as a collective agreement. Legislation will define this document as a normative act concluded by the employer and employees (represented by their representatives), through which the regulation of social and labor legal relations in the organization is carried out.

The parties determine the structure of the collective agreement and its content, which includes, in particular, such issues as:

• forms, system and amounts of remuneration;
• guarantees and benefits for employees;
• other issues established by the parties.

Legislative provisions (Article 43 of the Labor Code) establish the period for which a collective labor agreement is concluded. In accordance with these provisions, a collective agreement may be concluded for a period not exceeding three years. The collective agreement comes into force from the moment when the parties signed it, or from the moment specified in the collective agreement.

Employment contract at Russian Railways

If we talk about Russian Railways, then you need to understand that labor relations in Russian Railways are regulated by the provisions of the current labor legislation. Accordingly, the conclusion of employment contracts with both management and ordinary employees of this organization is carried out in accordance with the provisions of Art. 58 taking into account the specifics of the direct work activity of a particular employee.

Conclusions

So, based on all of the above, we can state that for the most part, standard employment contracts are concluded for an indefinite period. The execution of employment contracts for any specific period can be carried out exclusively on the grounds determined by the provisions of labor legislation. Thus, if the employment contract does not indicate the period and the grounds for establishing such a period, then this contract is regarded as concluded for an indefinite period of time.

The conclusion of an employment contract is preceded by the employment procedure. In Art. 65 of the Labor Code of the Russian Federation lists the documents that a citizen must submit when applying for a job. These include: 1) a passport or other identification document, while an identification document must be recognized as any document issued in the prescribed manner that allows the identification of a citizen, in particular, a military ID, driver’s license; 2) a work book, with the exception of cases when an employment contract is concluded for the first time or an employee goes to work on a part-time basis, therefore, the presence of a work book is not mandatory when starting a job, however, in its absence, the employer has an obligation to issue it to the employee work book; 3) insurance certificate of state pension insurance; in the absence of this certificate at the time of entry into work, the obligation to obtain it arises from the employer who entered into the employment contract; 4) military registration documents for those liable for military service and persons subject to conscription for military service; the absence of these documents also cannot serve as an obstacle to employment, but when conscripted for military service, the employer terminates the employment relationship with the employee, and when called to military training, releases him from work for the period of their implementation; 5) a document on education, qualifications or special knowledge, if the performance of future work requires special knowledge or special training, for example, when performing the duties of a medical worker. The absence of a document confirming special skills or special training of a citizen, when the work involves the need to use them, is an obstacle to concluding an employment contract. We have listed the general documents that are provided upon applying for a job. This list of general documents is exhaustive. In this connection, the employer does not have the right to require employees to provide other documents for employment, for example, documents such as characteristics, recommendations.

In Part 2 of Art. 65 of the Labor Code of the Russian Federation states that in some cases, taking into account the specifics of work, federal laws, decrees of the President of the Russian Federation, and resolutions of the Government of the Russian Federation may provide for the need to present additional documents compared to the above list when applying for a job. This provision does not allow employers to independently expand the list of documents submitted by citizens when applying for a job. The need to present additional documents can only be provided for by federal laws, decrees of the President of the Russian Federation, and resolutions of the Government of the Russian Federation. Other regulations, in particular, subjects Russian Federation, local regulations cannot impose an obligation on the employee to provide additional documents. The provision of additional documents must be motivated in the above-mentioned acts by special conditions of work activity, for example, passing civil service. Therefore, obtaining additional documents from an employee when applying for a job is possible if the following legally significant circumstances are proven: 1) the presence special conditions labor activities requiring the provision of additional documents; 2) the presence of a direct indication of the need for their presentation in federal laws, decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation.

Registration labor relations should happen as follows. Based on Art. 67 of the Labor Code of the Russian Federation, an employment contract is concluded between the employee and the employer in in writing. This agreement is drawn up in two copies, which are of equal force, one of them is given to the employee, the other is kept by the employer. When concluding employment contracts with certain categories of employees, in particular with minors, federal laws and other regulatory legal acts may provide for the need to agree on the possibility of concluding an employment contract and its terms with persons and bodies that are not employers under these contracts.

In this case, a larger number of copies of the employment contract are drawn up, which are stored not only by the employer and employee, but also by the persons and bodies with whom the conclusion of the employment contract and its terms have been agreed upon. Having a copy of the employment contract in the possession of these persons allows them to monitor the implementation of the conditions contained therein.

The employment contract comes into force from the day it is signed by the employee and the authorized representative of the employer, unless it establishes other dates for the start of work. Labor relations arise on the basis of an employment contract from the moment the employee starts work. In the event that an employee without good reasons within a week has not begun to perform work duties within the period established by the employment contract, the employment contract is considered not concluded.

In addition to the employment contract for proper registration of employment, Art. 68 of the Labor Code of the Russian Federation requires the issuance of an order (instruction) on the hiring of an employee by an authorized representative of the employer. This order must be issued on the basis of an employment contract concluded with the employee; it is the basis for including the employee in payroll organization, as well as for accrual to him stipulated by the employment contract wages. From Part 1 of Art. 68 of the Labor Code of the Russian Federation it follows that the content of the order in question must comply with the terms of the concluded employment contract. Consequently, the order must reflect the essential terms of the employment contract, without which labor activity cannot take place under certain conditions. For example, the absence in the order (instruction) of the employer of an indication of the fixed-term nature of the employment contract concluded with the employee, despite the presence of a condition on urgency in the employment contract, indicates the conclusion of an employment contract with an indefinite duration. In this case, the order (instruction) of the employer, which does not indicate the urgency of the employment contract, improves the position of the employee in comparison with it. In this regard, the law enforcement officer must be guided by the order (instruction) of the employer, creating a more favorable labor regime for the employee. However, by order (instruction) of the employer, the employee cannot be assigned additional responsibilities in comparison with the employment contract.

Thus, proper registration of employment requires the conclusion of a written employment contract, as well as the issuance of an order (instruction) on employment, which should reflect the terms of the employment contract that determine the nature of the employee’s work activity.

The lack of proper registration of labor relations cannot serve as a basis for depriving an employee of the rights established by law, for example, the right to compulsory social insurance against industrial accidents and occupational diseases. In Part 2 of Art. 67 of the Labor Code of the Russian Federation states that an employment contract that is not properly drawn up is considered concluded if the employee began work with the knowledge or on behalf of the employer or his representative. When an employee is actually allowed to work, the employer has the obligation to draw up an employment contract with him in writing no later than three days from the date of actual start of work. In this case, the date of entry into force of the employment contract must indicate the date of actual start of work. In Part 1 of Art. 61 of the Labor Code of the Russian Federation establishes that in any case, the employment contract comes into force from the date of the employee’s actual admission to work. This admission must take place with the knowledge or on behalf of a person who has the right to hire and fire employees, or an employee who is a representative of the employer. Representatives of the employer who organize the labor process are also heads of structural divisions. Therefore, the admission of an employee to work as the head of a structural unit entails an obligation on the employer to enter into a written employment contract with the employee. Evidence of actual admission to work with the knowledge of the employer’s authorized representative can be information about the employee’s performance labor function in the interests of the employer during the working day. Working hours are recorded daily by an authorized representative of the employer. Therefore, at the end of the day's work, the employer must have information about the new employee. The employer's lack of such information cannot serve as a basis for refusing to conclude an employment contract. In such a situation, a person who failed to fulfill the obligation to inform the employer’s representative of information about a new employee admitted to perform a labor function in the interests of the employer may be held liable.

An employer’s refusal to formalize an employment contract in writing after three days of work cannot serve as a basis for limiting the rights of an employee, including the right to social insurance against industrial accidents and occupational diseases. In the situation under consideration, the employer violates the obligation imposed on him by Part 2 of Art. 67 of the Labor Code of the Russian Federation, the obligation to written form labor relations, which entails a limitation of the employee’s labor rights, in particular, the right to compulsory social insurance against industrial accidents and occupational diseases. The burden of adverse consequences for an offense committed by the employer cannot be placed on the employee. Therefore, the employee retains the right to insurance of this type. While the employer must be held accountable for failure to fulfill the obligation to insure the employee, in particular, the employer is obliged to pay insurance premiums for the entire period of the employee’s work, as well as pay penalties established by law.

Thus, regardless of the preparation of written documents, labor relations arise from the moment the employee is actually admitted to work. In this case, the employer has an obligation to formalize the hiring process in writing by concluding an employment contract with the employee in writing, as well as issuing an order (instruction) on hiring.

Textbook "Labor Law of Russia" Mironov V.I.

• Personnel records management and Labor law

Other contract terms may be established by agreement of the parties.

A contract that is concluded for a specific period is called a fixed-term employment contract. Such an agreement is concluded if the employment relationship is limited in time. The duration of the employment relationship, and, consequently, the term of the employment contract, depends on the specifics of the work performed, as well as on the qualifications of the employee.

The duration of the contract must be specified in the contract itself. Otherwise, such an agreement is considered concluded for an indefinite period.
If a fixed-term contract is concluded, but after the expiration of the specified period, neither party to the employment relationship terminates it, then the conditions of urgency lose their legal force, and the contract is “reclassified” as unlimited.

The terms of a fixed-term employment contract can be appealed in court. The employee must have sufficient evidence to show the court that the fixed-term contract was concluded for the purpose of failure to fulfill obligations and failure to provide guarantees that are due to employees with an open-ended employment contract.

A fixed-term employment contract can be concluded in the following cases:

• replacing and performing the duties of a temporarily absent employee;
• when sending an employee to work abroad;
• when performing a specific amount of work;
• when applying for a job in an organization that is obviously created to perform a certain amount of work;
• to perform temporary work. A job is considered temporary if it takes up to 2 months to complete. For example, setting up software on new computers;
• for seasonal work. These are works that are performed in a certain season. For example, sowing or harvesting;
• when elected for a certain term to an elected position or to an elected body. For example, the chairman of the HOA;

If the parties have reached a mutually beneficial agreement, then a fixed-term agreement can be concluded:

• with pensioners;
• with employees of small enterprises and individual entrepreneurs, where the total number of workers does not exceed 35 people;
• when heading to places with heavy climatic conditions;
• with the manager, his deputies and the chief accountant;
• with creative media workers - print media, radio, television and others;
• when carrying out work to eliminate and eliminate the consequences of man-made and natural disasters;
• with persons who have won a competition to fill a vacant position. The competition must be held by the employer in accordance with the norms of the Labor Code of the Russian Federation;
• in other cases specified in Art. 59 Labor Code of the Russian Federation.

The term for concluding an employment contract with an employee can only be established by agreement of the parties, with the exception of those works that are performed for less than 2 months.

• Responsibilities of the parties to the employment contract probationary period
• General grounds for termination of an employment contract
• Termination of contract at the initiative of the employer
• Termination of a contract due to circumstances beyond the control of the parties

Conclusion of an employment contract

One of the fundamental constitutional rights of Russian citizens is the right to work. In Art. 37 of the Constitution of the Russian Federation proclaims that everyone has the right to freely manage their ability to work, choose their type of activity and profession. The realization of the right to work leads to the emergence of labor relations between the employee, on the one hand, and the employer, on the other hand. Labor relations arise between the parties on the basis of an employment contract concluded by them in accordance with the Labor Code of the Russian Federation (hereinafter referred to as the Labor Code of the Russian Federation). An employment contract is nothing more than an agreement between an employer and an employee, according to which the parties have mutual responsibilities. So, the employer is obliged:

• provide the employee with work according to the specified labor function;
• ensure working conditions provided for by the Labor Code of the Russian Federation, laws and other regulatory legal acts, collective agreements, agreements, local regulations containing labor law standards;
• pay the employee wages in a timely manner and in full.

In turn the employee is obliged:

• personally perform the labor function determined by this agreement;
• comply with the internal rules of the organization labor regulations.

The definition of an employment contract given in Art. 56 of the Labor Code of the Russian Federation, enshrines general duties sides

A detailed list of data that must be reflected in the employment contract is established in Art. 57 Labor Code of the Russian Federation. But, before moving on to the content of the agreement, I would like to consider its form.

According to Art. 67 of the Labor Code of the Russian Federation, an employment contract is concluded in writing, drawn up in two copies, each of which is signed by the parties. One copy is given to the employee, the other is kept by the employer. Sometimes the question arises: “Why conclude an employment contract in in writing, isn’t it enough that the hiring is formalized by order?”

The point is that it is impossible to reflect in the employment order all the conditions relating to the mutual rights and obligations of the employee and the employer. The main advantage of the written form is that all the terms of the contract are recorded in a single act, binding on the parties. When a labor dispute arises, the possibility of checking and comparing the terms of the contract with the relevant provisions of the law becomes obvious.

An employment contract that is not properly executed is considered concluded if the employee began work with the knowledge or on behalf of the employer or his representative. When an employee is actually admitted to work, the employer is obliged to draw up an agreement with him in writing no later than three days from the date of admission to perform his job function.

An employment contract comes into force on the day it is signed by the parties or on the day the employee is actually admitted to perform work duties.

Analyzing the content of the employment contract, it should be noted that the composition essential conditions of this agreement is not recommendatory, but mandatory.

Essential are the necessary terms of the employment contract, without whose approval the conclusion of such an agreement is impossible. So, the employment contract states:

• last name, first name, patronymic of the employee and name of the employer (last name, first name, patronymic of the employer - an individual);
• place of work (indicating the structural unit);
• work start date;
• name of the position, specialty, profession indicating qualifications in accordance with the organization’s staffing table or labor function. Article 57 of the Labor Code of the Russian Federation specifically stipulates that distortion of the name of a profession (position) in order to exclude or reduce the costs of providing benefits or guarantees to employees will be regarded as a violation of labor legislation with all the ensuing consequences;
• employee rights and obligations;
• rights and obligations of the employer;
• characteristics of working conditions, compensation and benefits to employees for working in difficult, harmful and (or) dangerous conditions;
• work and rest schedule (if it is in relation to of this employee different from general rules installed in the organization);
• terms of remuneration (including the size of the tariff rate or official salary, additional payments, allowances and incentive payments);
• types and conditions social insurance directly related to work activity.

The fact that the Labor Code of the Russian Federation provides detailed list essential conditions, makes it possible to develop standard form employment contract. The form of the employment contract is not unified and, therefore, can be developed in each organization based on the specifics of the activity.

In addition to essential (mandatory) conditions, the employment contract may provide for conditions on probation, on non-disclosure of secrets protected by law (state, official, commercial and other), on the employee’s obligation to work after training for at least the period established by the contract, if the training was carried out at the expense of the employer, as well as other conditions that do not worsen the employee’s position in comparison with the requirements of documents containing labor law norms.

The terms of an employment contract can only be changed by agreement of the parties and in writing.

Employment contracts can be concluded:

1. for an indefinite period;
2. for a specified period of not more than five years (fixed-term employment contract).

One of the most debated problems when adopting the Labor Code of the Russian Federation was the problem of the possibility of concluding fixed-term contract. It is believed that the right given to the employer to choose between a contract concluded for an indefinite period and a fixed-term employment contract significantly worsens the employee’s position. Article 57 of the Labor Code of the Russian Federation provides for a condition that makes such reasoning practically pointless: in the case of concluding a fixed-term employment contract, it indicates the period of its validity and the circumstance (reason) that served as the basis for concluding a fixed-term contract.

In comparison with the norms of the Labor Code of the Russian Federation, the Labor Code of the Russian Federation significantly limited the employer’s ability to conclude fixed-term employment contracts with employees:

• firstly, the period for which such an agreement can be concluded cannot exceed five years;
• secondly, a fixed-term employment contract can be concluded only if the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be done or the conditions of its implementation. In this case, an employment contract concluded for a certain period, in the absence of sufficient grounds established by the authorized body or court, is considered concluded for an indefinite period;
• thirdly, if the employment contract does not specify the duration of its validity, then the contract is also considered to be concluded for an indefinite period;
• fourthly, if neither party requested termination of the fixed-term employment contract due to the expiration of its term, and the employee continues to work after the expiration of this period, then again the employment contract is considered to be concluded for an indefinite period. This means that even if, at the end of the employment contract, the employer did not inform the employee of his dismissal, the contract ceases to be fixed-term;
• fifthly, Art. 58 of the Labor Code of the Russian Federation directly prohibits the conclusion of fixed-term employment contracts in order to evade the provision of rights and guarantees provided for employees with whom the contract is concluded for an indefinite period;
• sixthly, in Art. 59 of the Labor Code of the Russian Federation provides cases in which the conclusion of a fixed-term employment contract is possible.

And although this list is not exhaustive, it still contains a reference to the fact that such agreements can be concluded in other cases, but only those provided for by federal laws. Thus, the legislator did not leave the decision of this issue to the employer, which is a certain guarantee for the employee against the arbitrariness of managers who have the authority to hire.

By general rule an employment contract can be concluded with persons who have reached the age of sixteen. In some cases, an employment contract can be concluded by persons who have reached the age of fifteen and fourteen years. In addition, in cinematography organizations, theaters, theatrical and concert organizations, and circuses, it is allowed to conclude an employment contract with persons under fourteen years of age. Article 64 of the Labor Code of the Russian Federation provides certain guarantees for an employee when concluding an employment contract. For example, unjustified refusal to conclude an employment contract is prohibited. Any restriction of rights and establishment of advantages when hiring depending on gender, race, skin color, nationality, language, origin, property, social and official status, place of residence, as well as other circumstances not related to business qualities of the employee. The only exceptions are cases expressly provided for by federal law. In practice, the question often arises about the possibility of finding a job in Moscow for persons registered in the regions closest to Moscow. As can be seen from the analysis of the norms of the Labor Code of the Russian Federation, no restrictions in this regard are established either in the Labor Code of the Russian Federation itself or in other federal laws. By the way, at the request of a person who is denied an employment contract, the employer is obliged to provide the reason for the refusal in writing. The refusal to conclude an employment contract can be appealed in court. Currently, judicial practice on this issue exists.

For the first time in the Labor Code of the Russian Federation it is defined list of documents required to be presented to the employer when applying for a job. According to Art. 65 of the Labor Code of the Russian Federation, such documents are:

• passport or other identity document;
• work record book, except in cases where an employment contract is concluded for the first time or the employee takes a part-time job;
• insurance certificate of state pension insurance;
• military registration documents - for those liable for military service and persons subject to conscription for military service;
• a document on education, qualifications or special knowledge - when applying for a job that requires special knowledge or special training.

In some cases, regulatory legal acts may require the presentation of additional documents.

As already noted, hiring, in addition to concluding an employment contract, is formalized by order (instruction) of the employer. The content of the order (instruction) must comply with the terms of the concluded employment contract.

The order (instruction) on hiring is announced to the employee against signature within three days from the date of signing the employment contract. At the request of the employee, the employer is obliged to provide him with a duly certified copy of the specified order (instruction).

When hiring, the employer is obliged to familiarize the employee with the internal labor regulations in force in the organization, other regulations related to the employee’s labor function, and the collective agreement.

How additional condition In an employment contract, the agreement of the parties may stipulate the testing of the employee in order to verify his compliance with the assigned work.

The probationary clause must be specified in the employment contract. The absence of a record of this means that the employee was hired without testing. In practice, there are situations when an employer, when hiring an employee, imposes a probationary condition on him, but the employment contract and the order say nothing about this. Subsequently, when trying to fire an employee due to an unsatisfactory test result, the employer loses the case in court.

During the probationary period, the employee is subject to the provisions of the Labor Code of the Russian Federation and other regulatory legal acts containing labor law standards.

• persons applying for work through a competition to fill the corresponding position;
• pregnant women;
• persons under the age of eighteen;
• persons who graduated from primary, secondary and higher educational institutions vocational education and those entering work for the first time in their acquired specialty;
• persons elected to an elective position for paid work;
• persons invited to work by way of transfer from another employer as agreed between the employers.

The test is not established in other cases provided for by the Labor Code of the Russian Federation, other federal laws and the collective agreement.

The probationary period cannot exceed three months, and for heads of organizations and their deputies, chief accountants and their deputies - six months. The probation period does not include periods of temporary incapacity for work of the employee, as well as other periods when he was actually absent from work.

Based on the results of the test, the employee either continues to work on a general basis or quits his job. In the second case, the employer is obliged to notify the employee in writing of dismissal no later than three days in advance, indicating the reasons that served as the basis for recognizing this employee as having failed the test. The employee can appeal such a decision in court.

In case of termination of the employment contract on the specified grounds, severance pay is not paid to the employee.

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 according to at will, warning the employer about this in writing three days in advance.

Thus, in conclusion, it can be noted that the labor relationship between an employee and an employer arises on the basis of an employment contract, which in turn is an agreement of the parties on its main (essential) terms. Employment contracts are concluded in writing in two copies and are kept by each party. Changes to the terms of the contract can only be made in writing. In case of failure to comply with the terms of the agreement by one of the parties, the other party may appeal the violated right to the commission for labor disputes or in court.

Termination of an employment contract

Before going directly to comparative analysis norms of the Labor Code of the Russian Federation and the Labor Code of the Russian Federation, it is necessary to understand the basic concepts that are encountered when considering this issue.

The concept of “termination of an employment contract” is the most general, including all the grounds for termination of an employment contract provided for by the Labor Code of the Russian Federation and other federal laws.

“Termination of an employment contract” means its termination at the initiative of one of the parties - the employee or the employer. The term “dismissal”, used in many articles of the Labor Code of the Russian Federation, is associated with the presence or absence of the will of the parties to a terminated employment contract.

Chapter 13 “Termination of an employment contract” of the Labor Code of the Russian Federation establishes the grounds and procedure for terminating an employment contract.

Article 77 of the Labor Code of the Russian Federation sets out the general grounds for termination of an employment contract. Already here there are differences from Article 29 of the Labor Code of the Russian Federation, which regulated a similar issue. The fact is that the Labor Code of the Russian Federation provided an exhaustive list of grounds for termination of an employment contract, and the Labor Code of the Russian Federation, in addition to the general ones, provides for other grounds set out in this Code and other federal laws. As an example, we can cite the norms contained in Article 288 of the Labor Code of the Russian Federation. They provide for the termination of employment contracts with persons working part-time in the event of hiring an employee for whom this work will be the main one. Article 336 of the Labor Code of the Russian Federation sets out additional reasons termination of the employment contract with teaching staff.

Comparing Article 77 of the Labor Code of the Russian Federation and Article 29 of the Labor Code of the Russian Federation, the following differences can be identified:

1) four new bases have been added:

• refusal of an employee 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). The norm of the Labor Code of the Russian Federation assumed that when the owner of an enterprise changes, as well as its reorganization (merger, accession, division, transformation), labor relations continue with the consent of the employee; termination in these cases of an employment agreement (contract) at the initiative of the administration was possible only with a reduction in the number or staff of employees;
• refusal of an employee to transfer to another job due to health conditions in accordance with a medical report (part two of Article 72);
• circumstances beyond the control of the parties (Article 83);
• violation established rules concluding an employment contract if this violation excludes the possibility of continuing work (Article 84);

2) the conscription of an employee for military service or his assignment to alternative service is now among the circumstances that do not depend on the will of the parties, and is regulated by Art. 83 Labor Code of the Russian Federation;

3) the grounds for termination of the employment contract at the request of the trade union body are excluded. This is due to a general change in the role of trade union organizations in the field of personnel management of the organization;

4) such a basis as the entry into force of a court sentence by which the employee was sentenced (except for cases of suspended sentence and deferment of execution of the sentence) to imprisonment, correctional labor not at the place of work, or to another punishment that precludes the possibility of continuing this work is excluded. In accordance with the Labor Code of the Russian Federation, this basis is a special case of termination of an employment contract due to circumstances beyond the will of the parties;

5) The Labor Code of the Russian Federation, in contrast to the Labor Code of the Russian Federation, separately considers the grounds for termination of an employment contract in cases of an employee’s refusal to continue working due to a change in significant working conditions, as well as the employee’s refusal to be transferred in connection with the employer’s relocation to another location (clauses 7 and 9 Article 77 of the Labor Code of the Russian Federation). Transferring an employee to work in another location, as a rule, involves changing the essential terms of the employment contract. Clause 7 also applies to other cases of transfer - in the same organization and in the same area. Should be paid special attention on paragraph 9 of Art. 77 of the Labor Code of the Russian Federation (an employee’s refusal to transfer due to the employer’s relocation to another location). The Labor Code of the Russian Federation does not explain what is meant by moving an employer to another location. In particular, it is not determined whether a shift should be considered such a movement legal address organization (in another locality) or relocation means the need for the employee to actually move to another locality. By the way, a significant change in the terms of the employment contract can also occur when the employer moves within the boundaries of one settlement(for example, for a metropolis like Moscow). Thus, it seems necessary to clarify the concepts of “different location” and “relocation of employer”.

Articles 78-84 of the Labor Code of the Russian Federation regulate the termination of an employment contract on certain grounds.

An attempt has been made to detail the procedure for terminating a fixed-term employment contract (Article 79 of the Labor Code of the Russian Federation). Article 32 of the Labor Code of the Russian Federation regulated the termination of a fixed-term employment contract early at the request of the employee. This was possible in case of illness or disability of the employee, i.e. the occurrence of circumstances preventing the performance of work under the agreement (contract), violation by the administration of labor legislation, a collective or labor agreement (contract) and for other valid reasons.

Article 79 of the Labor Code of the Russian Federation establishes that, in general, a fixed-term employment contract is terminated upon the expiration of its validity period. Moreover, the employee must be warned in writing about the deadline at least three days before dismissal. If a fixed-term employment contract is concluded for the duration of the certain work, then it is terminated upon completion of this work. An employment contract concluded for the duration of the duties of an absent employee is terminated when this employee returns to work. An employment contract concluded for the duration of seasonal work is terminated after a certain season.

The procedure for terminating an employment contract at the employee’s initiative has been preserved. Basic distinctive feature This order still requires two weeks' notice to the administration. If the dismissal is due to the inability to continue performing a job function after a certain period (entry into educational institution etc.), the employment contract must be terminated by this date. In addition, the employer is obliged to terminate the employment contract within the period specified in the employee’s application in cases of established violation by the employer of laws and other regulations containing labor law norms, the terms of a collective agreement, agreement or employment contract. If the employer does not object, the employment contract can be terminated before the expiration of two weeks from the date the employee submits his resignation letter. In this case, the reason for dismissal can be reclassified as termination of the contract by agreement of the parties. The employee has the right to withdraw his resignation, and the contract will not be considered terminated, but only if this workplace no other employee was invited. After two weeks, the employee has the right to stop performing his job function. At the same time, the employer does not have the right to terminate the contract due to a gross violation of labor regulations by the employee (absenteeism).

The legislator has made significant changes to the list of grounds under which an employment contract can be terminated at the initiative of the employer. In comparison with the norms of the Labor Code of the Russian Federation, it is supplemented with five points:

• change of owner of the organization’s property (in relation to the head of the organization, his deputies and the chief accountant);
• adoption of an unfounded decision by the head of the organization (branch, representative office), 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;
• the employee submits false documents or knowingly false information to the employer when concluding an employment contract;
• termination of access to state secrets if the work performed requires such access;
• cases provided for in the employment contract with the head of the organization, members of the collegial executive body organizations.

The basis on which an employee could be dismissed in case of absence from work for more than four months in a row due to temporary disability, not counting maternity leave, has been excluded. Now dismissal is possible for health reasons and only with a medical certificate. Moreover, dismissal in this case is carried out if it is impossible to transfer the employee with his consent to another job. Looking ahead, I would like to note that in Art. 83 of the Labor Code of the Russian Federation contains an almost similar rule with the only difference that it deals with the unconditional termination of employment relations in connection with the recognition of the employee as completely disabled in accordance with a medical report.

The basis when an employee could be dismissed in the event of reinstatement of the employee who previously performed this work is excluded. This issue is regulated by Art. 79 of the Labor Code of the Russian Federation (termination of a fixed-term employment contract). It is clarified that termination of an employment contract at the initiative of the employer can occur not only in the event of liquidation of the organization, but also in the event of termination of activities by the employer - an individual. The concept of a one-time gross violation of labor duties by an employee is discussed in more detail. It now includes:

• absenteeism (absence from the workplace without good reason for more than four hours in a row during the working day). According to the Labor Code of the Russian Federation, absence from work for more than three hours in a row was equivalent to absenteeism;
• appearing at work in a state of alcohol, drug or other toxic intoxication. In Art. 33 of the Labor Code of the Russian Federation, this basis for termination of an employment contract was indicated as a separate one. Only two words “or other” have been added to the Labor Code of the Russian Federation, as a result of which the text of this paragraph has become not entirely accurate: it turns out that both alcoholic and drug intoxication are types of toxic intoxication;
• disclosure of secrets protected by law (state, commercial, official and other) that became known to the employee in connection with the performance of his job duties. This type gross violation is new - the Labor Code of the Russian Federation did not provide for the possibility of dismissal on this basis;
• committing at the place of work theft (including small) of someone else's property, embezzlement, intentional destruction or damage, established by a court verdict that has entered into legal force or a resolution of an authority authorized to apply administrative penalties. This ground for termination of an employment contract is not fundamentally new - in Art. 33 of the Labor Code of the Russian Federation, it stood out as separate. The changes affected only the terminology: the Labor Code of the Russian Federation dealt not with someone else’s property, but with state or public property;
• violation by an employee of labor protection requirements, if this violation entailed serious consequences (industrial accident, accident, catastrophe) or knowingly created a real threat of such consequences. There was no such basis in the Labor Code of the Russian Federation. Although in fact dismissals on this basis took place, as a rule, under the assumption said violation the employee was prosecuted and dismissed from work by court decision.

From Art. 254 Labor Code of the Russian Federation in Art. 81 of the Labor Code of the Russian Federation, three grounds for termination of an employment contract have been transferred, which can be applied to only certain categories of employees. This:

• the commission of guilty actions by an employee directly servicing monetary or commodity assets, if these actions give rise to a loss of confidence in him by the employer;
• the commission by an employee performing educational functions of an immoral offense incompatible with the continuation of this work;
• a single gross violation by the head of the organization (branch, representative office) or his deputies of their labor duties. The list of grounds when an employment contract can be terminated at the initiative of the employer in the Labor Code of the Russian Federation (unlike the Labor Code of the Russian Federation) is not exhaustive - in accordance with paragraph 14 of Art. 81 employment contracts can be terminated in other cases, provided for by law(examples of such cases have already been given earlier).

The requirement that the dismissal of an employee due to the liquidation of an organization, a reduction in the number or staff of employees is permitted if it is impossible to transfer the employee with his consent to another job, has been retained. In addition, the ban on dismissal of an employee who is on vacation or during a period of temporary disability has been retained.

It is clarified that the procedure for terminating employment contracts provided for in cases of liquidation of an organization applies to cases of termination of the activities of a branch, representative office or other separate structural unit of the organization located in another locality.

Article 82 of the Labor Code of the Russian Federation establishes the procedure for the participation of trade union bodies in considering issues related to the dismissal of workers at the initiative of the employer. As already noted, the role of trade unions in the management of an organization’s personnel in the Labor Code of the Russian Federation has been significantly revised in comparison with the Labor Code of the Russian Federation. This circumstance is reflected in Art. 82 Labor Code of the Russian Federation.

In particular, it is established that in the event of liquidation or reduction in the number (staff) of employees, the employer is only obliged to inform the trade union body about the planned events: in general - no later than two months, if the actions lead to mass layoffs - no later than than in three months.

Criteria mass layoffs should be determined in sectoral and (or) territorial agreements.

At the same time, the Labor Code of the Russian Federation does not determine further actions of the employer, trade union organization, as well as the procedure for implementing the decision made by the trade union body during the liquidation of the organization.

The employer is obliged to take into account the opinion of the trade union body if a trade union member is dismissed for the following reasons: reduction in the number or staff of the organization's employees in the case of insufficient qualifications, confirmed by certification results, as well as in the case of repeated failure by the employee to perform labor duties without good reason, if he has a disciplinary sanction. The procedure for taking into account the opinion of the trade union body is regulated by Art. 373 Labor Code of the Russian Federation. In particular, taking into account the opinion of the trade union presupposes (in case the trade union does not agree with the dismissal) holding consultations with the employer with the obligatory execution of the corresponding protocol. Regardless of the results of the consultations, the employer has the right to dismiss the employee within ten days after sending the draft dismissal order and copies to the trade union necessary documents(for the trade union to develop an opinion). The decision to dismiss can be appealed to the federal labor inspectorate and, of course, in court. It should be emphasized that the trade union's decision must be motivated. The employer does not take into account unmotivated opinions. The motivation criteria of the Labor Code of the Russian Federation have not been defined.

Note that the additional right trade union organizations still provided by Art. 82 of the Labor Code of the Russian Federation - this is the right to send your representatives to the certification commission (during certification, which may serve as a basis for the dismissal of workers).

Most of the provisions of Art. 83 of the Labor Code of the Russian Federation, which regulates the termination of an employment contract due to circumstances beyond the control of the parties, is not new - to one degree or another, the corresponding grounds were provided for by several articles of the Labor Code of the Russian Federation.

Such circumstances are:

• conscription of an employee into military service or his assignment to an alternative civilian service (formerly separate base, provided for in Art. 29 Labor Code of the Russian Federation);
• reinstatement of an employee who previously performed this work by decision of the state labor inspectorate or court;
• failure to be elected to office;
• convicting the employee to a punishment that precludes the continuation of his previous work, in accordance with a court verdict that has entered into legal force;
• recognition of the employee as completely disabled in accordance with a medical report;
• death of an employee or employer - an individual, as well as recognition by a court of an employee or employer - an individual as deceased or missing;
• the occurrence of emergency circumstances that prevent the continuation of labor relations. In order for a circumstance to be recognized as an emergency, there must be a decision of a government authority.

The provisions of Art. look somewhat strange. 84 of the Labor Code of the Russian Federation, which regulates the procedure for terminating an employment contract due to violation of the provisions established by law mandatory rules when concluding an employment contract.

There are only three possible violations of the rules:

• concluding an employment contract in violation of a court verdict depriving a specific person of the right to occupy certain positions or engage in certain activities;
• concluding an employment contract to perform work that is contraindicated for a given person for health reasons in accordance with a medical report;
• lack of an appropriate education document if the work requires special knowledge in accordance with federal law or other regulatory legal acts;
• in other cases provided for by federal law.

It is easy to see that in all three cases, concluding an employment contract is hardly possible without a certain insincerity on the part of the employee. It is difficult to assume that the employee does not know the court verdict and that he is honestly mistaken about his physical condition or does not know that the job for which he is applying requires special education. However, Art. 83 of the Labor Code of the Russian Federation specifically stipulates that termination of an employment contract in the above cases is carried out if it is impossible to transfer the employee with his written consent to another job available to the employer. In addition, the last part of Art. 83 of the Labor Code of the Russian Federation establishes the employer’s obligation to pay the employee severance pay in the amount of average monthly earnings, if the violation of the rules for concluding an employment contract was committed through no fault of the employee.

And the last thing I would like to note when analyzing the norms of the Labor Code of the Russian Federation and the Labor Code of the Russian Federation. Article 135 of the Labor Code of the Russian Federation provided for disciplinary action dismissal for very specific reasons. And here is Art. 192 of the Labor Code of the Russian Federation defines “dismissal for appropriate reasons” as a type of disciplinary sanction. It seems necessary to specifically state these grounds, using a reference norm, in order to avoid ambiguous application of the mentioned type of disciplinary sanction.

The procedure for concluding an employment contract is established by the Labor Code of the Russian Federation. In general, it is quite simple and known to everyone who has spent at least a day at an official job. However, there are some features that are not often paid attention to. Let's look at what exactly it is and how it should be done by law.

General procedure for concluding an employment contract

Essentially, the procedure for concluding a contract with an employee can be divided into the following stages:

1. Actually an invitation to work. Usually it does not have an official design and looks simply like an advertisement posted on a website, in a newspaper or, say, as a running line in one of the TV shows. However, in some cases labor law regulates it too: we are talking about those cases when an employee is invited by letter and at the same time a transfer from his previous place of work is formalized. An employment contract with such an employee must be concluded no later than a month from the date of his dismissal from his previous job.
2. Interview and presentation of documents. The list of documents will be discussed in detail below; as for the interview, it is in no way regulated by law. The only thing the legislator pays attention to is the prohibition of discrimination in hiring, as well as the obligation of the employer, at the request of an unsuccessful employee, to provide a written answer about the reasons for refusal of employment.
3. If the employee is suitable, his qualifications correspond to the job and all documents are in order, an employment contract is signed with the employee. The requirements for this agreement are described in Art. 67 of the Labor Code of the Russian Federation: the contract must be drawn up in writing; in addition, he must not violate the requirements of the law.

Order for employment

In accordance with the terms of the employment contract, the head of the organization writes an order (or instruction) on the hiring of a new employee.

The order is the primary accounting document and is drawn up for each hired employee. The document can be drawn up in a unified form T-1 or T-1a, however, their use from January 1, 2013 is not mandatory. The employee must be familiarized with the order against signature no later than 3 days from the date of its publication.

After this, all necessary documents are completed by HR specialists: an entry is made in the work book, a personal card is issued, etc. In addition, the employee, against signature, familiarizes himself with the internal regulations of the organization: labor regulations, safety standards, collective agreement and other documents, if they relate in whole or in part to the duties or working conditions of the employee.

This procedure for concluding an employment contract is provided for all employees - both those employed in commercial enterprises and those in municipal or government service.

In the event that an employment contract has not been signed and the employee has actually begun his duties, the employer by law does not have the right not to conclude an employment contract. If he tries to evade this, the employee has the right to sue him - and in most cases such cases are won.

However, if a person was allowed to work by an employee of the employer who did not have the right to do so, then the employer must pay for the work actually done or the time worked, but is no longer obliged to enter into an employment contract.

What documents are needed for registration?

Labor Code provides an exhaustive list of documents required by an employee in order to conclude an employment contract. The list includes:

• passport or other document that confirms the employee’s identity;
• work book - you can do without it only if the employee gets the first job in his life, or if the employer - individual(but not individual entrepreneur!);
• Pension Fund insurance certificate;
• for men and women liable for military service - military ID.

The employer cannot do without these documents under any circumstances. However, in addition to this, the Labor Code of the Russian Federation indicates that the following may additionally be required:

• for work requiring appropriate education and qualifications - a diploma, certificate of special training, etc.;
• for teachers, security guards or officials of some organizations - a certificate of no criminal record;
• for workers under 18 years of age - a certificate of completion of a medical examination;
• for employees of some enterprises ( food production, food trade, etc.) - health certificate;
• for part-time workers hazardous industries, - a certificate about the nature of the work at the main place;
• for those entering the state or municipal service, a TIN certificate is required;
• finally, for foreigners - a work permit or patent.

With whom and how can an employment contract be concluded?

The general procedure for concluding an employment contract determines the basic conditions relating to the identity of the employee.

And the first thing that needs to be mentioned in this regard is the age of the employee. The Labor Code stipulates that, as a general rule, you can officially register for work in Russia from the age of 16. However, there are exceptions both downward and upward of this age:

1. Persons under 18 years of age are not allowed to work under particularly difficult or hazardous conditions.
2. Some civil service positions cannot be filled by persons under a certain age. Thus, for a district court judge the minimum age is set at 25 years, for a regional court judge - already 30; In the Supreme Court of the Russian Federation, judges under 35 years of age have nothing to do, and in the Constitutional Court of the Russian Federation, judges under 40 years of age have nothing to do.
3. At the same time on light work 15-year-olds who have already received or are receiving general education may also be employed.
4. In their free time from school, 14-year-olds can work with parental consent.
5. Children under 14 years of age may be workers in theaters, film studios or circuses. They are provided with special working conditions that do not negatively affect their health or education. The employment contract is signed on behalf of young artists by their parents or guardians.

In addition to age, the conclusion of an employment contract may also be related to previous work. In particular, former municipal and civil servants are required to obtain a work permit from a special control commission within 2 years if they get a job in organizations that were previously under their control. They are also required to notify the employer of their place of employment within 2 years. It is worth paying special attention to this, since as a general rule, although an employee must present a work book, he is not required to provide any other information about his previous work. The fact that he indicates this information in his resume or in questionnaires personnel service - exclusively the good will of the employee.