Mistakes of the employer in the execution of employment contracts. What can not be included in the employment contract. Employment contract: terms of the contract, mandatory conditions and grounds for amendments Mandatory terms of the employment contract are determined by whom

place of work. and in the case when an employee is hired to work in a branch, representative office or other separate structural subdivision of the organization located in another area, the place of work indicating the separate structural unit and its location;

labor function (work according to the position in accordance with the staff list, profession, specialty, indicating qualifications; a specific type of work assigned to the employee). If in accordance with this Code, other federal laws, the provision of compensations and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the names of these positions, professions or specialties and qualification requirements for them must correspond to the names and requirements specified in qualification guides. approved in order. established by the Government Russian Federation, or the relevant provisions of professional standards;

(As amended by Federal Laws No. 13-FZ dated February 28, 2008. No. 236-FZ dated December 3, 2012)

(as amended by Federal Law No. 421-FZ of December 28, 2013)

(see text in previous edition)

on clarification in relation to working conditions this employee the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing norms labor law;

(paragraph introduced by Federal Law No. 421-FZ of December 28, 2013)

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The employment contract specifies:

surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual) who entered into an employment contract;

information about the documents proving the identity of the employee and the employer - an individual;

taxpayer identification number (for employers, except for employers - individuals who are not individual entrepreneurs);

information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate authority;

place and date of conclusion of the employment contract.

The following conditions are mandatory for inclusion in an employment contract:

place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another locality, the place of work indicating the separate structural unit and its location;

labor function (work according to the position in accordance with the staff list, profession, specialty, indicating qualifications; a specific type of work assigned to the employee). If in accordance with this Code, other federal laws, the provision of compensations and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the names of these positions, professions or specialties and qualification requirements for them must correspond to the names and requirements specified in qualification reference books approved in the manner established by the Government of the Russian Federation, or the relevant provisions of professional standards;

the date of commencement of work, and in the case when a fixed-term employment contract is concluded, also the term of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with this Code or other federal law;

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

working time and rest time (if for a given employee it differs from general rules operating at this employer);

guarantees and compensations for work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, indicating the characteristics of working conditions at the workplace;

conditions governing in necessary cases nature of work (mobile, traveling, on the road, other nature of work);

working conditions in the workplace;

mandatory condition social insurance an employee in accordance with this Code and other federal laws;

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other conditions in cases provided for by labor legislation and other regulatory legal acts containing labor law norms.

If, when concluding an employment contract, it did not include any information and (or) conditions from among those provided for in parts one and two of this article, then this is not a basis for recognizing the employment contract as not concluded or terminating it. The employment contract must be supplemented with missing information and (or) conditions. In this case, the missing information is entered directly into the text of the employment contract, and the missing conditions are determined by the appendix to the employment contract or by a separate agreement of the parties concluded in writing which are an integral part of the employment contract.

The employment contract may provide for additional conditions that do not worsen the position of the employee in comparison with the established labor legislation and other regulatory legal acts containing labor law norms, collective agreement, agreements, local regulations, in particular:

on the specification of the place of work (indicating the structural unit and its location) and (or) on the workplace;

on non-disclosure of legally protected secrets (state, official, commercial and other);

on the obligation of the employee 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;

on the types and conditions of additional employee insurance;

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

on clarifying, in relation to the working conditions of this employee, the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms.

on additional non-state pension provision for an employee.

By agreement of the parties, the employment contract may also include the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms, local regulations, as well as the rights and obligations of the employee and the employer arising from the terms of the collective agreement, agreements . Failure to include in the employment contract any of the specified rights and (or) obligations of the employee and the employer cannot be considered as a refusal to exercise these rights or fulfill these obligations.

Labor Code (Article 57 of the Labor Code of the Russian Federation 2017)

Employment contract part 3

Relevance: 2014

3. Conditions that must be included in the employment contract.

The first part includes information characterizing the employee and the employer, the second - the mandatory terms of the employment contract and the third - the terms of the employment contract, which the parties could establish at their discretion. In personnel records management, it is important to observe these features of drawing up an employment contract.

The terms of the employment contract are included in its content by agreement of the parties.

They are divided into direct, stipulated directly by the parties in the written text of the employment contract, and derivatives, provided for by law, by agreement by virtue of the conclusion of an employment contract (on the procedure for transfers, dismissal, labor protection rules, etc.).

Immediate conditions can be of two types:

Without mandatory conditions, there can be no employment contract.

The following conditions are mandatory for inclusion in an employment contract:

place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of the organization in another locality - the place of work indicating the separate structural unit and its location.

An indication of any structural unit, as required by the Labor Code of the Russian Federation by Federal Law No. 90-FZ of July 30, 2006, is now recognized as an additional, clarifying condition;

the labor function of an employee, which means:
a) work in the relevant position in accordance with the staffing table;
b) work in a certain profession or specialty, indicating qualifications;
c) a specific type of work.
Labor function (work according to the position in accordance with the staffing table, profession, specialty, indicating qualifications, the specific type of work assigned to him). If, in accordance with the Federal Law, privileges or restrictions are provided for certain positions, then their names should be indicated in accordance with the qualification reference books.
In the employment contract, the law obliges to indicate the name of the position in accordance with the organization's staffing table.
start date, i.e. day, month and year from which the employee is obliged to start performing labor duties. The start date of work may coincide with the day the employment contract is concluded, or the parties may agree that the employee will start work later. In any case, the exact date of commencement of work is indicated in the employment contract;
remuneration, including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments.
They are determined in accordance with the profession, position, qualification category and qualification category employee (see art. 132, 135 of the Labor Code). The size of the tariff rate or official salary must be specified directly in the employment contract.
Additional payments, allowances and incentive payments due to an employee may be directly indicated in the employment contract, or it may refer to the relevant regulatory legal act or collective agreement that provides for the grounds and conditions for their payment. In the latter case, the employee must be familiarized with the content of these regulatory legal acts and the collective agreement against signature;
working hours and rest periods. This condition is mandatory if the regime under this employment contract of the employee does not coincide with the general regime of work and rest in force with the employer;
compensation for hard work and work with harmful and (or) dangerous working conditions, as well as characteristics of working conditions at the workplace, if a person is hired for this kind of work;
conditions that determine, if necessary, the nature of the work (mobile, traveling, on the road, etc.).
In accordance with Art. 168.1 of the Labor Code, the amount and procedure for reimbursement of expenses associated with business trips of employees, permanent job which is carried out on the way or has a traveling character, are established not only by a collective agreement, agreements, local regulations, but also (in appropriate cases) by an employment contract;
a condition on compulsory social insurance of an employee in accordance with the Labor Code and other federal laws.
other conditions, in cases provided for by law.
The list of conditions of the employment contract, provided for in Part 2 of Art. 57 is not exhaustive. Legislation and other normative legal acts containing labor law norms may provide for other conditions as mandatory conditions of an employment contract.

Employer in progress personnel office work it is important to know that the absence of any of the mandatory conditions in the employment contract is not a basis for terminating the employment contract or recognizing it as not concluded.

According to part 3 of Art. 57, if at the conclusion of the employment contract it did not include certain mandatory conditions, it must be supplemented with the missing conditions. In this case, the missing conditions are determined by the appendix to the employment contract or by a separate agreement of the parties, concluded in writing. Both the appendix to the contract and the separate agreement of the parties are an integral part of the employment contract and have equal legal force with it.

The following conditions are mandatory for inclusion in an employment contract:
1) About the place of work or the location of the structural unit. The place of work is understood as a specific organization - a legal entity that has its own name. If an employee is hired by a branch, or a representative office of a legal entity, or another separate structural unit of the organization located in another location, the place of work is fixed in the employment contract, indicating the separate structural unit and its location.

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2) About labor function, which the employee will perform in the relevant position, qualifications in accordance with the staffing table, or about the specific type of work assigned to the employee.

3) On the conditions that determine the nature of the work (associated with traveling, work on the road, etc.). O compensation payments for hard work and work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, indicating the characteristics of working conditions at the workplace.
Work is considered to be traveling in nature if it involves the performance of labor functions by employees at facilities located at a considerable distance from the employer's location, or frequent travel of employees on behalf of the employer. Work is characterized as work on the road if the employee's labor function is performed in the process of movement vehicle(for example, chiefs (foremen) of passenger trains, carriage conductors, etc.). In such an employment contract, it is also necessary to indicate whether the performance of the labor function is constantly or periodically assumed in the specified conditions. In this case, the employer reimburses travel expenses related to business trips; for renting a dwelling; related to living outside the place of permanent residence (for example, daily allowance); other expenses incurred by employees with the permission or knowledge of the employer.
Amounts and procedure for reimbursement of expenses related to business trips specified workers, as well as the list of works, professions, positions of these employees are established by the collective agreement, agreements, local regulations. Conditions for reimbursement of expenses may also be included in the employment contract. This is advisable if the organization has not adopted a collective agreement or an appropriate local regulatory act. Work in these conditions adversely affects the health of the employee (physical and mental), his social life (personal, family, public). To compensate the worker for the negative impact on health and disruption of social life, wage systems in enterprises may provide for the payment of appropriate allowances.
The employment contract must necessarily describe the working conditions at the workplace, the list of existing harmful (dangerous) factors determined by the results of the certification, and the list of benefits provided in connection with this, for example, the appointment of milk.

4) On wages (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments). Despite the fact that this condition is mandatory, real employment contracts often indicate: “with a salary in accordance with staffing”, “in accordance with labor legislation”, etc. Sometimes there are no indications of wages at all. Often, employment contracts only define official salary or the tariff rate. Quite often reference is made to local regulations employers. All this is a violation of labor laws.
The condition on the amount of wages and its elements should not be formulated in an employment contract by reference to regulatory legal acts, a collective agreement or a local regulatory act.
Remuneration also refers to relations connected with the implementation by the employer of payments to employees for their work, i.e. the employment contract must also specify the terms and conditions for the payment of wages.

5) On the mode of working time and rest time (if for a given employee it differs from the general rules in force for a given employer).
In accordance with Article 91 of the Labor Code of the Russian Federation working time is the time during which the employee, in accordance with the rules of internal work schedule enterprise and the terms of the employment contract must comply labor obligations. Normal working hours cannot exceed 40 hours per week, but for certain categories of workers (minors, disabled people, medical workers) a preferential regime is established.
A special mode of working time in practice can be expressed, for example, in a part-time working day (shift), different from other workers, the start and end times of work, the alternation of working and non-working days, irregular working hours. The employment contract must clearly specify the specific working hours of the employee.
The general mode of working hours of the employer can be changed when concluding a collective agreement by agreement of the parties social partnership. When establishing a working time regime, the guarantees provided for employees (for example, reducing the duration of work at night and on the eve of non-working holidays) must be respected. Article 107 of the Labor Code of the Russian Federation establishes types of rest time, including breaks during the working day (shift); weekend; non-working holidays; holidays.

6) On the conditions of compulsory social insurance of an employee in accordance with labor legislation. In some cases, the mandatory condition of social insurance will be determined depending on the nature of the work performed. For example, an employee must be insured against accidents. The types and conditions of social insurance are established by federal legislation on compulsory social insurance. If the employer provides additional insurance to the employee (for example, pension or medical), then this must be specified in the employment contract.

7) About the start date of work. and in the case when a fixed-term employment contract is concluded, also the term of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract. As a general rule, the start of work under an employment contract is determined by a calendar date or a specific day, that is, a specified specific date, month and year. Often, employment contracts indicate a period of time after which, after the entry into force of the employment contract, the employee is obliged to start work.
The date of commencement of work is the date of the actual commencement of work by the person with whom the employment contract is concluded, and not the date of conclusion (or registration) of the employment contract itself. When concluding an agreement upon the fact of the employee's going to work, the text of the agreement must contain exactly the date from which the employee actually began work, and not the date when the agreement was drawn up in writing. If the employment contract does not specify the day of commencement of work, the employee must start work on the next working day after the entry into force of the contract. The contract comes into force from the day it is signed by the employee and the employer, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.

8) The list of mandatory terms of the employment contract is not exhaustive. So, according to part 4 of article 282 of the Labor Code of the Russian Federation, a prerequisite for an employment contract concluded with a part-time job is an indication that the work is part-time. When concluding an employment contract for the performance of seasonal work, by virtue of Article 294 of the Labor Code of the Russian Federation, a condition on the seasonal nature of the work must be included in it.

It should be borne in mind that if, when concluding an employment contract, any information or conditions provided for by labor legislation were not included in it, this cannot be a basis for recognizing the employment contract as not concluded or terminating it. In this case, the employment contract must be supplemented with missing information or conditions. The missing information is included in the text of the employment contract, and the missing conditions are determined by the appendix to the employment contract or by a separate agreement of the parties in writing.
The parties to the employment contract may establish additional conditions. Such conditions may include, for example, conditions on the establishment probationary period when hiring, on additional vacations in excess of those provided for by law and the collective agreement, etc. If the parties include additional conditions in the content of a particular agreement, then they automatically become mandatory for their implementation.
The employment contract may contain conditions for non-disclosure by the employee of information constituting official or trade secret. become known to the employee in connection with the performance of his official duties. A specific employment contract must clearly indicate what information containing official or commercial secrets is entrusted to this employee.

Consider the parties and the content of the employment contract.

Information is called general information that defines the parties to the contract.

Conditions - perhaps the most voluminous section of the agreement. In fact, these are the rights and obligations of the parties. There are several types of conditions - additional, random and mandatory.

Intelligence

Let's start with the information specified in the contract. Although the term "data" is quite common, the term "information" is legally correct. It is he who is found in the 57th article of the Labor Code of the Russian Federation. According to her, the following information must be indicated in the contract:

Name of the employee.
The name of the employer.
Proof of identity (such as a passport number).
If the agreement is not signed by the employer personally, then the information of the representative.

In addition, as in all other agreements, indicate the date / place of conclusion of the employment contract. The contract is concluded in 2 copies.

Terms

The terms of the employment contract of the Labor Code of the Russian Federation are divided into several types. First, let's analyze the essential conditions of the employment contract - mandatory.

Mandatory

What conditions of the employment contract are mandatory for inclusion in the contract?

Sometimes mandatory conditions are called "essential".

However, this not quite right. The Labor Code does not include such a term.

Conditions without which an employment contract cannot be concluded are called "mandatory".

The following conditions are mandatory for inclusion in an employment contract:

Labor function- this is the second mandatory condition of the labor contract of the Labor Code of the Russian Federation. There are several options for defining an employee's job function. The first is work according to the position, which corresponds to the staffing table.

The second is to determine the function according to the profession and qualifications (of the employee). The last method is the definition through specific types of work assigned to the employee. This is understood calculation of the percentage of work performed by an employee.

To understand, let's take an example with a courier service.

At the request of his superiors, employee Yuri is 20% busy with paperwork, reports and other work in the office.

He helps since the office manager is on vacation. But most of the time (80% of the time) Yuri is busy delivering packages.

Thus, Yuri's main activity is delivery. Therefore, his labor function is courier activity.

The parties to the contract are free to give the names of the labor function themselves.. However, their names must not be contrary to federal law. This means that in some areas there are established names. You can find them in special reference books of professions.

The essential terms of an employment contract are start date. As the name implies, the condition determines the beginning labor activity employee in the enterprise.

Instructs the employee to start performing his duties from the date specified in the contract. If the employment contract does not stipulate the day of commencement of work, then the employee must start work on the day following the entry into force of the agreement.

Validity is important only for fixed-term employment contracts. The agreement can be concluded for a maximum period up to 5 years. If the agreement is concluded without specifying the fact that the contract is fixed-term, then it will be considered unlimited automatically.

Fixed-term contracts are less common. For their design work must have a clearly defined design character and an exact end date for the project must be determined.

The main terms of the employment contract include salary. The contract must indicate the official salary of the employee or the size of the tariff rate. Additional payments / allowances are also prescribed. They can not be indicated directly (numerically), but give a link to the legal acts of the enterprise that regulate the procedure and amount of surcharges.

(working time and rest) is not always indicated in the employment contract (in a separate paragraph).

The section will be mandatory only if the employee is expected to have rules other than the general ones () governing the work and rest schedule of the entire enterprise.

Such special cases (requiring a separate section in the contract) include: part-time work, irregular working hours.

In addition, sometimes manufacturing process causes the rest mode (for example, periods of restart, maintenance of equipment).

Mandatory conditions of the employment contract are - harmful factors, if any, at the enterprise, their must always be specified in the agreement. What impacts of the production environment are called harmful, article 209 of the Labor Code describes in detail. In total, four degrees of harmfulness are distinguished. The degree is influenced by physical, chemical, vibrational, toxic and some other factors.

A combination of harmful factors can also influence. In addition to information about the degree and sources of harm, it is imperative to describe the compensation that employees are entitled to. These include: increased wages, additional vacation time.

Working conditions: Since 2013, more stringent requirements have been introduced. Changes made the federal law N421.

The employer is now obliged to inform the employee in writing about the results of the inspection of the workplace, even if it is recognized as not harmful.

The employee must receive data on the certification of his future workplace. The rule also applies to offices.

The mandatory (main) clauses of the employment contract include the employee's social insurance.

According to Federal Law N90 social insurance has become directly linked to labor relations.

For the most part, insurance and interaction with the FSS is the concern of the employer.

This is due to the fact that the employer acts as an insured (pays insurance premiums to the Foundation).

The employee is the injured party, he receives benefits. In the section, it is necessary to indicate the procedure for appointment, the amount of benefits and other information from labor legislation relating to this issue. Additional insurance can be arranged upon request.

Nature of work: according to the nature of the work is divided into four types. Work can be traveling, mobile, "on the way" or have a different character. For traveling, the employee’s ability to return home at the end of the working day is characteristic.

For "mobile" and work on the road, this possibility is not provided. A typical traveling activity is working as a courier and postman.

Legislation may establish other mandatory conditions. But the most important are the above.

Additional

The contract may specify additional terms. When entering them into the agreement, it must be taken into account that they should not contradict labor legislation, other regulatory legal acts. Any conditions that unlawfully worsen the situation of an employee, will not have power.

- probably one of the most common additional conditions.

During a certain period of time, the employer looks at the employee, evaluates his professional and personal qualities.

Usually probationary period cannot exceed three months.

But for positions with very high responsibility (chief accountant, director), it can be up to six months.

If no probationary period has been issued separate document, it is calculated automatically. After that, the employee is enrolled in the company's staff.

part-time: an employee can combine several positions at the same time. Implementation is possible on a permanent and temporary basis. If the additional position implies harmful conditions, then compensation is due, as in the usual case.

Liability is limited and full. Enter into a separate agreement for limited liability not required, it is enabled by default.

In case of limited liability, compensation is subject to damage that was caused as a result of gross violations or inaction of the parties. Gross violation there may be ignoring the instructions affecting the work process, disciplinary offenses, failure to fulfill direct duties.

Full liability is an obligation determined by the parties to ensure that make full compensation for damages. For complete liability a separate agreement is required.. There is a list of professions that are prescribed to establish a full mat. responsibility. The list can be found in the resolution of the Ministry of Social Development N85.

Non-disclosure of state/commercial secrets at military and sensitive enterprises remains the norm and is widely practiced.

In the private sector, such a condition can also be found in the contract.

It is applicable for employees working with important papers.

They can be attributed technical documentation, contracts, classified information about the negotiations.

Training is allowed to be allocated in a separate clause of the agreement. If the employer spends his money on employee training, then you can set a minimum period of work.

In this case, a condition should be fixed in the employment contract in order to reduce the risks associated with possible dismissal.

In addition to the above conditions, the parties may stipulate and fix other rights and obligations in the contract. The main condition is that they must not be contrary to law and worsen the situation of the employee (for example, payment below the minimum wage).

These often include additional leave and compensation. The agreement may also contain clauses on additional insurance.. The most common are medical (for example, VHI) and pension insurance.

other information

Random conditions are included in the contract by agreement of the parties. They supplement or modify the usual conditions. Their inclusion/absence does not affect the validity of the agreement.

On the scale of importance, the mandatory conditions are the first, the optional ones are the second, and the random ones are the third (least important). Random (other) conditions, like all others, cannot contradict the law and worsen the position of the employee.

Failure to comply with the terms/obligations may result in a variety of sanctions.

The easiest measure is a verbal reprimand to the employee.

Then there are monetary penalties for both the employee and the employer. The last resort would be imprisonment.

An employer can be sentenced to imprisonment, for example, if he illegally withheld wages.

Useful video

This video covers all the necessary conditions to conclude an employment contract:

Conclusion

The contract includes three main concepts − content, information and conditions. Content is the sum of terms and information. Information is called identification information - who and with whom concludes a contract. The information indicates the full name, passport data, TIN.

The terms of the employment contract are divided into mandatory, random and additional. The most important are mandatory, without their indication the agreement will not be valid. If necessary, additional conditions are added to the contract. Random conditions when concluding an employment contract are not mandatory, their indication is not necessary.

ST 57 of the Labor Code of the Russian Federation.

The employment contract specifies:

surname, name, patronymic of the employee and the name of the employer (surname, name, patronymic of the employer - an individual) who entered into an employment contract;
information about the documents proving the identity of the employee and the employer - an individual;
taxpayer identification number (for employers, except for employers - individuals who are not individual entrepreneurs);
information about the representative of the employer who signed the employment contract, and the basis by virtue of which he is endowed with the appropriate authority;
place and date of conclusion of the employment contract.

The following conditions are mandatory for inclusion in an employment contract:

place of work, and in the case when an employee is hired to work in a branch, representative office or other separate structural unit of the organization located in another locality, the place of work indicating the separate structural unit and its location;
labor function (work according to the position in accordance with the staff list, profession, specialty, indicating qualifications; a specific type of work assigned to the employee). If in accordance with this Code, other federal laws, the provision of compensations and benefits or the presence of restrictions is associated with the performance of work in certain positions, professions, specialties, then the names of these positions, professions or specialties and qualification requirements for them must correspond to the names and requirements specified in qualification reference books approved in the manner established by the Government of the Russian Federation, or the relevant provisions of professional standards;
the date of commencement of work, and in the case when a fixed-term employment contract is concluded, also the term of its validity and the circumstances (reasons) that served as the basis for concluding a fixed-term employment contract in accordance with this Code or other federal law;
terms of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments);
the mode of working time and rest time (if for this employee it differs from the general rules in force for this employer);
guarantees and compensations for work with harmful and (or) dangerous working conditions, if the employee is hired in appropriate conditions, indicating the characteristics of working conditions at the workplace;
conditions that determine, if necessary, the nature of work (mobile, traveling, on the road, other nature of work);
working conditions in the workplace;
a condition on compulsory social insurance of an employee in accordance with this Code and other federal laws;
other conditions in cases provided for by labor legislation and other regulatory legal acts containing labor law norms.

If, when concluding an employment contract, it did not include any information and (or) conditions from among those provided for in parts one and two of this article, then this is not a basis for recognizing the employment contract as not concluded or terminating it. The employment contract must be supplemented with missing information and (or) conditions. In this case, the missing information is entered directly into the text of the employment contract, and the missing conditions are determined by the appendix to the employment contract or by a separate agreement of the parties, concluded in writing, which are an integral part of the employment contract.

The employment contract may provide for additional conditions that do not worsen the position of the employee in comparison with the established labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, in particular:

on the specification of the place of work (indicating the structural unit and its location) and (or) on the workplace;
about the test;
on non-disclosure of legally protected secrets (state, official, commercial and other);
on the obligation of the employee 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;
on the types and conditions of additional employee insurance;
on improving the social and living conditions of the employee and members of his family;
on clarifying, in relation to the working conditions of this employee, the rights and obligations of the employee and the employer established by labor legislation and other regulatory legal acts containing labor law norms;
on additional non-state pension provision for an employee.

Commentary on Art. 57 of the Labor Code of the Russian Federation

1. The ambiguity of the very concept of "contract" makes it possible to distinguish between an employment contract as a legal fact, an agreement of the parties, an employment relationship, and, finally, as a written document. The commented article 57 of the Labor Code of the Russian Federation, interpreting the content of the employment contract exclusively in its last meaning - as a written document, formulates a certain system of requirements for the content of this document, in other words, for the form of the employment contract.

It is necessary to distinguish between the concepts of "requisites" and "conditions" of the contract. The requisites of the contract as a written document are the ordered information contained in it, namely the data on the place of its conclusion; parties to the agreement; rights and obligations of non-contractual parties, etc. The terms of the employment contract are developed by the parties and, therefore, represent an agreement between the employee and the employer on certain aspects of the interaction of the parties within the framework of employment relationship. The terms of the employment contract constitute its content as an agreement of the parties and, as a general rule, are included in the contract (as a written document).

The commented Article 57 of the Labor Code of the Russian Federation in part 1 establishes the obligation to indicate in the employment contract such details as its subject composition (surname, name, patronymic of the employee), as well as the name of the employer (surname, name and patronymic of the employer - an individual).

When formulating information about an employer - a legal entity, one should also indicate data about his representative (body) and the legal basis that allows him to act on behalf of the employer, including concluding employment contracts.

Legislation (part 2 of article 273 of the Labor Code; paragraph 3 of article 103 of the Civil Code; article 69 of the Federal Law of December 26, 1995 N 208-FZ "On joint-stock companies") establishes cases when the management of an organization is carried out under an agreement with another organization (managing organization) or individual entrepreneur(manager). The functions of an individual executive body may be transferred to a manager in companies with limited liability(Art. 40, 42 of the Federal Law of February 8, 1998 N 14-FZ "On Limited Liability Companies"). In such cases, when concluding an employment contract, the details of the contract are indicated, on the basis of which the managing organization or individual manager.

In large organizations, the right to conclude employment contracts may be granted not to the director, but to one of the leaders of the organization (for example, the director of human resources). In this case, the employment contract indicates the basis on which the relevant manager acts (for example, an order CEO on the redistribution of powers to manage the organization or other local regulatory legal act).

c) an agreement on the validity of the contract in time. This condition of the employment contract includes: the moment of commencement of the employment contract; start date of work; contract time; the moment of termination of the contract.

The moment of commencement of the employment contract is determined according to the rules established.

When formulating a condition on the validity of an employment contract in time, it should be borne in mind that the legislation recognizes as the main type a contract concluded for an indefinite period (). When concluding an employment contract for an indefinite period, it indicates the date of commencement of its action. The fixed-term employment contract indicates the validity period and the circumstance (reason) that served as the basis for its conclusion in accordance with the Labor Code of the Russian Federation and other federal laws (see Article 59 of the Labor Code of the Russian Federation and commentary thereto).

Since the employment contract is of a continuing nature, when concluding it, the parties must agree on the condition for the validity of the contract in time. In the event that the contract is concluded for an indefinite period, the specified condition can be agreed upon either by default or by an appropriate clause in the text of the contract as a written document. When concluding a fixed-term employment contract, the parties must specify the term of its validity as a mandatory condition of the contract;

d) salary agreement. Within the framework of this condition of the employment contract, the following is fixed: the amount of wages (tariff rate or official salary of the employee, additional payments, allowances and incentive payments); the procedure for its payment (the right to advance payment, the amount of the latter, the place and procedure for paying wages, etc.);

e) an agreement on the regime of work and rest. The regime of working time and rest time refers to those conditions of the employment contract, regarding which the parties cannot fail to reach an agreement when concluding an employment contract. As well as the term of the contract, the condition under consideration can be set by default (in this case, it should be considered that the parties have reached agreement on the work of the employee in the conditions of the work and rest regime established by the general rules in force for this employer). If the regime of working time and rest time differs from that generally accepted by the employer, an agreement on this score, indicating the regime of work established for the employee, is fixed in the text of the employment contract as an essential condition constituting its content;

f) an agreement on the nature of the work (mobile, traveling, on the road, etc.) is one of the mandatory conditions of the employment contract. This condition can be set in two ways.

The specified agreement may be an element of an agreement on the labor function: by determining the position or profession or specialty, the parties thereby establish a condition on the nature of the work. At the same time, the nature of the work can be specified by the relevant instructions for the position or the tariff and qualification characteristics of the profession (specialty), with which the employee must be familiarized when concluding an employment contract before it is signed by the parties (see Article 68 of the Labor Code of the Russian Federation and commentary thereto).

Or, if it is necessary to individualize the nature of the work in relation to a specific labor legal relationship, the nature of the work becomes the subject of negotiations between the parties and is fixed in the text of the employment contract as a condition that constitutes an element of the content of the contract;

g) working conditions at the workplace. Working conditions - a combination of factors of the working environment and labor process affecting the performance and health of the worker. Among these factors, the legislator identifies harmful and dangerous production factors and, in addition, defines the concept safe conditions labor (see article 209 of the Labor Code of the Russian Federation and commentary to it). Along with those specified in the employment contract, other working conditions may be agreed (work on a specific unit, the use of certain methods and techniques in the course of the employee’s work, etc.), which are essential for both parties to the contract or one party and therefore stipulated in the labor contract.

4. The legislator considered it necessary in Part 3 of Art. 57 of the Labor Code of the Russian Federation to emphasize that if, when concluding an employment contract, it did not include any information and (or) conditions from those indicated in parts 1 and 2 of Art. 57 of the Labor Code of the Russian Federation, this is not a basis for recognizing an employment contract as not concluded or terminating it. In this case, the contract is subject to replenishment with missing information (conditions). The missing conditions are determined by the appendix to the employment contract or by a separate agreement of the parties, concluded in writing, which are an integral part of the employment contract.

Such a clarification by the legislator seems quite reasonable if the employment contract is interpreted exclusively as a written document. However, an employment contract, unlike, say, notarial acts, is not a strictly formalized document and cannot act as such, therefore the absence of certain details in its text does not discredit the document itself as a whole; missing details can be filled in the form and in the manner prescribed by law.

At the same time, if an employment contract is interpreted as an agreement that gives rise to the rights and obligations of the parties in the labor legal relationship arising on its basis, then the solution proposed by the legislator is essentially a departure from the problem. Indeed, it is possible to supplement the contract as a written text with an additional agreement regarding a particular condition - but only if the parties reach agreement on the relevant condition. What should be the decision in the absence of agreement in principle?

There are currently two possible options solutions to this problem. If disagreements regarding a specific condition were discovered and were not resolved before the employee began work, the contract should be considered not concluded, i.e. non-existent. If such a situation is discovered after the employee has started work, the employment contract must be recognized as concluded and entered into force; accordingly, if it is found impossible to resolve the disagreement, it must be terminated. The basis for (see article 78 of the Labor Code of the Russian Federation and commentary thereto) or, if the employment contract is terminated at the request of the employee, is the employee's initiative (see th to it).

A similar approach should be applied to those terms of the employment contract that the Labor Code of the Russian Federation defines as additional.

5. Additional (optional) terms of the employment contract are established at the initiative of the parties (employee or employer). Their absence in the text of the contract does not call into question the employment contract itself - it will be valid without additional conditions. However, if the interested party insists on the inclusion of a particular condition in the contract, it must be established, otherwise the employment contract cannot be considered concluded.

Additional (optional) terms of the employment contract are the terms of the test, the non-disclosure of legally protected secrets (state, official, commercial and other), the obligation of the employee 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 terms.

On the test when applying for a job, see Art. , to them.

6. Non-disclosure of legally protected secrets (state, official, commercial and other) is considered by the Labor Code of the Russian Federation to be among the optional terms of an employment contract.

State secret - information protected by the state in the field of its military, foreign policy, economic, intelligence, counterintelligence and operational-search activities, the dissemination of which may harm the security of the country. The list of information constituting a state secret is a set of categories of information, according to which information is classified as a state secret and classified on the grounds and in the manner established by federal law (Article 2 of the Law of the Russian Federation of July 21, 1993 N 5485-1 " On State Secrets). The list of information constituting a state secret is contained in Art. 5 of the mentioned Law, as well as in the Decree of the President of the Russian Federation of November 30, 1995 N 1203 "On approval of the List of information classified as state secrets."

The conclusion of an employment contract for work in this field is possible subject to the admission of the relevant person to state secrets. The procedure for admitting officials and citizens to state secrets is determined by Art. 21 of the Law of the Russian Federation "On State Secrets" and subordinate regulatory legal acts (see also the commentary to it). The mutual obligations of the employer and the person being registered for work are reflected in the employment contract, the conclusion of which is not allowed until the end of the relevant verification by the competent authorities.

A commercial or official secret is a regime of confidentiality of information that allows its owner, under existing or possible circumstances, to increase income, avoid unjustified expenses, maintain a position in the market for goods, works, services, or obtain other commercial benefits (clause 1, article 3 of the Federal Law of July 29 2004 N 98-FZ "On Trade Secrets").

Thus, a commercial or official secret has three features: 1) the information that constitutes it is not known to third parties; 2) this information is closed from free access to it; 3) the owner of the information ensures its protection from access by third parties.

The question of the commercial value of information, as well as the degree of its popularity for third parties, is decided by the owner of the information. As for the other two signs of a commercial (official) secret, they must be legally formalized. First of all, the circle of information that does not constitute a commercial (official) secret is determined. Information that cannot constitute an official or commercial secret shall be determined by law and other legal acts.

So, the Federal Law of April 22, 1996 N 39-FZ "On the market valuable papers" in Chapter 7 defines the procedure and mandatory forms of disclosure of information about securities.

The list of information in respect of which the trade secret regime cannot be established is established by Art. 5 of the Federal Law "On Trade Secrets".

The annual financial statements of the organization, with the exception of indicators classified as state secrets under the laws of the Russian Federation, are open to interested users: banks, investors, creditors, buyers, suppliers, etc., who can familiarize themselves with the annual financial statements and receive copies of them with reimbursement of costs for copying. Moreover, the organization must provide an opportunity for interested users to familiarize themselves with the financial statements, and in cases provided for by the legislation of the Russian Federation, the organization publishes the financial statements and the final part of the audit report (clauses 89, 90 of the Regulations on maintaining accounting and financial statements in the Russian Federation, approved. Order of the Ministry of Finance of the Russian Federation of July 29, 1998 N 34n).

Along with the formulation of the range of information that does not constitute a commercial (official) secret, the legislation defines the signs of information that is confidential and not subject to disclosure. Information of this kind is defined by Decree of the President of the Russian Federation of March 6, 1997 N 188 "On Approval of the List of Confidential Information".

Characterizing certain information from the point of view of their confidentiality, three groups of information can be distinguished: 1) which, in accordance with the law, cannot be confidential (closed for access to third parties); 2) which is confidential by virtue of a direct indication of the regulatory legal act of the state or the prescription of its competent official; 3) which is recognized as not subject to publicity by its owner - a private individual or legal entity.

The obligation to ensure the confidentiality of information relating to the second group is assigned to the relevant person by a direct prescription of a regulatory legal act or an official of the state. So, the information that became known to the employee of the civil registry office in connection with state registration act of civil status, including personal data, is information, access to which is limited in accordance with federal laws, and is not subject to disclosure (Article 12 of the Federal Law of November 15, 1997 N 143-FZ "On acts of civil status") .

Information about the fact of the citizen's application for the provision medical care, his state of health and diagnosis, other information obtained during his medical examination and treatment, constitute a medical secret (Article 13 of the Federal Law of November 21, 2011 N 323-FZ "On the Fundamentals of Protecting the Health of Citizens in the Russian Federation"). It is not allowed to disclose information constituting a medical secret, including after the death of a person, by persons to whom they became known during training, performance of labor, official, service and other duties, except as otherwise established by law.

The employer is obliged to familiarize the employee with the range of information that, by virtue of the law and the specifics of the labor function performed by the employee, are not subject to disclosure. The obligation of the employee not to disclose this information is included in the employment contract as an essential condition.

With regard to information related to the third group, the employer must determine the range of relevant information in the manner of local rule-making (in job description or in a special position). In local normative act it is advisable to establish the categories of employees, the degree and procedure for their access to information constituting a commercial (official) secret, as well as the types of persons and organizations, at the request of which all or part of confidential information can be transferred to them. Information about the familiarization of the employee with the relevant local act and his obligation to ensure the confidentiality of information are entered into the employment contract as an essential condition.

It is advisable to carry out such measures when organizing work with the personal data of an employee (see Chapter 14 of the Labor Code of the Russian Federation and commentary thereto). If the information is personalized, i.e. is directly related to the personality of the employee, then the data about it and the obligation of the employee to refrain from disclosing it are fixed in the employment contract.

As follows from Art. Art. 10, 11 of the Federal Law "On Trade Secrets", measures to protect the confidentiality of information taken by its owner should include: 1) determining the list of information constituting a trade secret; 2) restriction of access to information constituting a commercial secret by establishing a procedure for handling this information and monitoring compliance with such procedure; 3) registration of persons who have gained access to information constituting a commercial secret, and (or) persons to whom such information has been provided or transferred; 4) regulation of relations on the use of information constituting a trade secret by employees on the basis of employment contracts and counterparties on the basis of civil law contracts; 5) putting on material media containing information constituting a trade secret, or including in the details of documents containing such information, the stamp "trade secret" indicating the owner of such information (for legal entities - full name and location, for individual entrepreneurs - surname, name, patronymic of a citizen who is an individual entrepreneur, and place of residence).

The trade secret regime is considered to be established after the owner of the information constituting a trade secret takes the indicated measures.

Measures to protect the confidentiality of information are recognized as reasonably sufficient in the following cases: a) exclusion of access to information constituting a commercial secret by any person without the consent of its owner; b) ensuring the possibility of using information constituting a trade secret by employees and transferring it to counterparties without violating the trade secret regime.

In order to protect the confidentiality of information, the employer is obliged to: a) familiarize the employee, whose access to information constituting a commercial secret, is necessary for the performance of their labor duties, with a list of information constituting a commercial secret, the owners of which are the employer and his counterparties; b) familiarize the employee against the receipt of the trade secret regime established by the employer and with the measures of responsibility for its violation; c) create the necessary conditions for the employee to comply with the trade secret regime established by the employer.

An employee's access to information constituting a commercial secret is carried out with his consent, unless this is provided for by his labor duties.

In order to protect the confidentiality of information, the employee is obliged: a) to comply with the trade secret regime established by the employer; b) not to disclose information constituting a commercial secret owned by the employer and his contractors, and without their consent not to use this information for personal purposes; c) transfer to the employer, upon termination or termination of the employment contract, material media of information available to the employee that contain information constituting a commercial secret, or destroy such information or delete it from these material media under the control of the employer.

7. On the obligation of the employee 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 an optional condition of the employment contract, see Art. , and comments to them.

8. The parties may agree on the implementation by the employer in favor of the employee of additional payments or on the provision of benefits social character. In particular, the parties may establish as a condition of the employment contract an agreement regarding additional insurance for the employee. The essence of this agreement is that the employer assumes the obligation to insure the employee on the terms offered by a particular insurance organization, or to provide additional insurance to the employee on the terms developed by the parties to the employment contract. In the same row there is a condition on additional non-state pension provision for an employee.

9. The list of additional (optional) terms of the employment contract contained in Art. 57 of the Labor Code of the Russian Federation, is not exhaustive. When concluding an employment contract, the parties have the right to agree on any other conditions that can both specify the content of the employment relationship and relate to other aspects of the relationship between the parties. For example, the parties may stipulate the use by the employee of his tool in the course of labor activity, the procedure for the provision by the employer of services for the delivery of the employee to the place of work and back, household and socio-cultural services for the employee and his family members at the expense of the employer.

At the same time, there are restrictions regarding the scope of additional (optional) conditions and their content, namely:

a) it is unacceptable in an employment contract to establish conditions related to the restriction of the rights and freedoms of an employee as a person and citizen. By virtue of Art. 17 of the Constitution of the Russian Federation, fundamental human rights and freedoms are inalienable and belong to everyone from birth, therefore their content cannot be the subject of any contract, including labor.

Society guarantees everyone freedom of conscience, religion, including the right to profess individually or jointly with others any religion or not to profess any, to freely choose, have and disseminate religious and other beliefs and act in accordance with them (Article 28 of the Constitution of the Russian Federation). Consequently, the employment contract cannot include conditions related to the employee's refusal of a certain religion, transition to another confession, etc. An exception is an employment contract concluded with a religious organization (see).

By virtue of Art. 30 of the Constitution of the Russian Federation, everyone has the right to association, including the right to create trade unions to protect their interests. The freedom of activity of public associations is guaranteed. Accordingly, the terms of the employment contract providing for the refusal of membership in a trade union or, conversely, mandatory membership in any trade union, will be unconstitutional. On the same grounds (Article 29 of the Constitution of the Russian Federation), conditions on refusal of membership in a certain political party or on membership in a certain party cannot be established in an employment contract.

The constitutional right of everyone to education (Article 43 of the Constitution of the Russian Federation) excludes the possibility of fixing in an employment contract a condition for refusing to study in educational organization. At the same time, the condition of an employment contract, which provides for the obligation to receive education necessary to improve the qualifications of an employee, cannot be recognized as inconsistent with the Constitution.

Finally, the general constitutional principle of individual freedom, which implies freedom of self-disposition and is embodied in a number of articles of the Constitution of the Russian Federation, determines the unconstitutionality of the terms of an employment contract, which implies a permanent or for a certain time refusal to marry, have children, and perform other family functions;

b) it is unacceptable in an employment contract to establish conditions related to the restriction of the civil legal personality of individuals (both the employee and the employer). Transactions aimed at restricting legal capacity or legal capacity are void, except in cases where such transactions are permitted by law (Article 22 of the Civil Code of the Russian Federation);

c) the terms of an employment contract that change the norms of legislation that are mandatory (mandatory) are not recognized as legal. For example, it is impossible to change the procedure for consideration of individual labor disputes because this procedure is imperatively regulated by law; it is impossible to include in the contract conditions on non-disclosure of information that does not constitute a commercial or official secret;

d) it is unacceptable to establish conditions in an employment contract, the implementation of which is associated with the obligation of third parties, i.e. persons who are not parties to the contract. At the same time, the conclusion of an employment contract may be accompanied by the conclusion of other agreements that do not contradict the law, including other industry affiliations, with the participation of the parties to the employment contract and third parties, assuming the imposition of obligations on their parties in connection with the concluded employment contract;

e) conditions that worsen the position of the employee in comparison with those established by the collective agreement (agreement) or labor legislation (Article 57 of the Labor Code of the Russian Federation) are not included in the employment contract.

The listed conditions of the employment contract are invalid (void).

10. A number of circumstances that are defined as mandatory or additional conditions of an employment contract, depending on their legal nature, may be classified as essential conditions of an employment contract, but may not be them, acting as the so-called ordinary conditions of an employment contract or being generally outside the agreement of the parties.

For example, compensation for hard work and work with harmful and (or) dangerous working conditions, if the employee is hired under appropriate conditions, as well as the characteristics of working conditions at the workplace, may be determined by state standards or collective agreements (agreements) and, therefore, not being the product of direct negotiations between the parties, they cannot be classified as mandatory (essential) terms of the employment contract. However, given that they can be changed by agreement of the parties, these conditions can be considered the usual terms of an employment contract. The meaning of the latter lies in the fact that the parties reach agreement on them by default. It is enough to familiarize the employee with them, about which a corresponding entry is made in the employment contract.

However, there are situations where common standards are absent or the work of this worker is used in exceptional conditions that impose special requirements on the protection of his health. There is a need to individualize the characteristics of working conditions, as well as the types and amounts of compensation and benefits to employees for working in difficult, harmful and (or) dangerous conditions, which should be done within the framework of an employment contract. In this case, these conditions are modified as essential (random) conditions of the employment contract.

A similar assessment can be given to other conditions arising from labor legislation, a collective agreement (agreement), local regulatory legal acts.

A significant part of the norms of labor legislation is imperative and dispositive in nature. The legal nature of these norms lies in the impossibility of worsening the position of the employee relative to that established by law, but in the permissibility of improving this situation. Consequently, the parties can either agree that they are subject to the current labor laws, or establish other rules that are more favorable to the worker. In the first case, the terms of the agreement of the parties, arising from the norms of labor legislation, can be recognized as the usual terms of an employment contract; in the second case, the usual conditions are modified by the parties into essential (random) terms of the employment contract. It is precisely such conditions that are the rights and obligations of the employee and the employer, specified "in relation to the working conditions of this employee", established by labor legislation and other regulatory legal acts containing labor law norms.

11. All of the above conditions are the terms of the employment contract as a contract, i.e. the result of a direct or indirect expression of the will of the parties or one party agreed with the other party. However, Art. 57 of the Labor Code of the Russian Federation highlights conditions in the content of an employment contract that, from this point of view, are not contractual, since their content does not depend on the will of the parties.

Such conditions include the types and conditions of social insurance directly related to labor activity. However, as you know, the types and conditions of social insurance are determined by the state exclusively in a regulatory manner, thereby being beyond the discretion of the parties to the employment contract. Being a non-contractual condition, the employee's social insurance cannot be an element of the content of an employment contract. The inclusion of provisions on the employee's social insurance in the employment contract, apparently, aims to inform the employee about the content of the relevant legislation. Such information is possible in two ways.

In the first case, a clause is introduced into the text of the contract, the wording of which may sound like this: "Types and conditions of social insurance - in accordance with applicable law."

In the second option, the employee is introduced to the provisions of the legislation on the types and conditions of social insurance directly related to labor activity, about which an appropriate entry is made in the employment contract. This option is more acceptable.

The same approach has to be taken when assessing the rights and obligations of the parties arising from imperative norms formulated by labor legislation and other regulatory legal acts containing labor law norms (part 5 of the commented article 57 of the Labor Code of the Russian Federation). The imperative nature of these norms means that their content cannot in principle be changed by agreement of the parties, moreover, if such changes are made, they cannot be recognized as valid. Thus, the rights and obligations of the parties arising from the imperative norms of the law are of a non-contractual nature, which means that they cannot constitute the content of an employment contract as an agreement of the parties. Entering them, as well as data on the conditions of compulsory social insurance of an employee, into the text of an employment contract as a written document pursues an exclusively informational task. Therefore, these and other similar circumstances should not be classified as the terms of an employment contract, but as information. Their absence in the text of the contract does not relieve the parties from the implementation of the relevant non-contractual rights and obligations.

An employment contract was concluded with the locksmith Sidorov for a period of three years. After two years, Sidorov decided to quit, about which he notified the employer in

writing. The employer refused to terminate the locksmith's employment contract, citing the fact that there was a year left before the expiration of the contract, which Sidorov had to work at the enterprise. Is the employer's refusal legal? Name any two principles on which labor relations in the Russian Federation are based.

Are the following judgments about an employment contract in the Russian Federation correct? A. In accordance with the Labor Code of the Russian Federation, the receipt by an employee of a copy of an employment contract must

be confirmed by the employee's signature on a copy of the employment contract kept by the employer. B. If the employment contract does not specify the term of its validity, then the contract is considered concluded for five years.
1) only A is true 3) both judgments are true
2) only B is correct 4) both judgments are wrong

Since October 26, 2012, citizen K. was actually admitted to auxiliary work in the production premises of Tekhpero LLC, however, the employment contract in

was not concluded with him in writing, an order for employment was not issued, a record of employment in work book was not made. In accordance with the assignment received from the director, K., together with his partner, had to perform ancillary work, namely, load the fluff into the fluffing machine, collect the processed fluff from the container into bags and take it to sewing factory located on the second floor. K. did not undergo any preliminary training in the skills of working on a fluffing machine; he was not instructed in labor protection. It was explained to him orally that if the fluffing machine becomes clogged, it must be turned off and cleaned by hand or by some improvised means. On November 27, 2012, while cleaning the fluffing machine, an accident occurred with traumatic amputation of the left hand. The employer refuses to investigate the accident. Was the employer legal? If not, please list what laws were violated.

1. Citizen K. filed an application in which she asks to be relieved of her post. Which of the following would be grounds for

termination of the employment contract: a) its own wish; b) refusal of the director to pay bonuses to her; c) her desire to retire because she is 50 years old and tired of working; d) the request of the chief to write this statement, since citizen K. is pregnant; d) transfer to another job. Explain your answer. 2. Specialists are preparing for release a collection, the working title of which is "Protection of the interests of schoolchildren and students in obtaining education." Comments and recommendations professional lawyer should provide practical assistance to the future graduate, including when choosing an educational institution. What results, in your opinion, should be in this guide? Think about the samples of what documents you need to include in it? 3. Polish poet and philosopher of the 20th century. E. Lets wrote: "Man is also superior to the machine because he knows how to sell himself." Comment on the statement from the position of labor law.

Find in the list below the features of civil legal relations 1. civil legal relations are based on the principle of freedom of contract 2.

civil legal relations are based on the principle of equality of the parties 3. Civil legal relations regulate relations in the field government controlled 4. civil legal relations govern the relationship between the employer and the employee based on an employment contract 5. civil legal relations arise solely as a result of the commission of a crime 6. participants in civil legal relations are: the state, legal entities, individuals

Employment contract, like any official document, must be correctly formatted. Today it is the main act establishing labor relations between the employee and the employer. Conditions that restrict the legal rights of employees are invalid from the moment they are included in the contract. However, the employment contract itself, despite violations, continues to be valid for the parties.

At the conclusion, the employee and the employer must come to an agreement on several points, which include: labor function, working conditions, working hours and rest time, the amount and procedure for paying wages (Article 56 of the Labor Code of the Russian Federation). In addition, the contract must indicate the mandatory information about the employee and the employer (full name, name of the organization, TIN, etc.), which allow the parties to be identified ( part one, art. 57 of the Labor Code of the Russian Federation). Information must be entered correctly and in accordance with supporting documents. Also, any contract must contain mandatory conditions ( part two of Art. 57 of the Labor Code of the Russian Federation).

certain unified form there is no employment contract, unless the employee is the head of the state or municipal institution, for which now there is a standard form approved by Decree of the Government of the Russian Federation dated April 12, 2013 No. 329 “On the standard form of an employment contract with the head of a state (municipal) institution”.

When drawing up an employment contract with an employee, it is imperative to take into account the requirements for the content of the employment contract specified in Art. 57 of the Labor Code of the Russian Federation. Consider these requirements and analyze the common mistakes employers make in the content of an employment contract. Conditionally the entire art. 57 of the Labor Code divides the content of the employment contract into three parts:

Mandatory information about the employee and the employer;

- mandatory conditions;

- additional conditions.

Mandatory information about the employee and the employer, the presence of which in the employment contract is required by Art. 57 of the Labor Code of the Russian Federation, calmly fit into the preamble to the employment contract. I would like to draw attention to the fact that the TIN is indicated only by the employer, and at the end of the employment contract there will be only signatures of the parties. Also, many in the preamble to the employment contract include only general information about the employee and the employer, but digital information in the form of the TIN of the employer, the passport data of the employee is taken out at the end of the employment contract.

The next condition is mandatory terms of the employment contract, which I would like to dwell on in more detail. The first prerequisite is the place of work, it must be in every employment contract, however, as practice shows, many employers do not understand what a “place of work” is and how it should be indicated in an employment contract. Indeed, if we turn to the labor code, then it does not disclose the concept of "place of work", the only thing that is said in Art. 57 of the Labor Code of the Russian Federation, if an employee is hired to work in a branch, representative office or other separate structural unit of an organization located in another locality, it is necessary to indicate the name of the structural unit and its location.

The place of work is the organization in which the employee works, but it has already been said that in practice many people make mistakes when indicating the place of work. For example, in one organization, the following was indicated in the employment contract with the employee: "Place of work - Moscow region, Leninsky district." Nothing but a smile such an example does not cause. This immediately begs the question of how the employer will involve him in disciplinary action in case of being late, absenteeism, etc. Another option - in the employment contract it was indicated that the place of work was the organization "X", Moscow, st. Sadovaya, house 8, 6th floor, office No. 5. In this example, we are not talking about the place of work, but most likely the workplace of the employee.

The concept of the workplace is given in Art. 209 of the Labor Code of the Russian Federation, workplace is the place where the worker has to be or where he needs to arrive in connection with his work, and which is directly or indirectly under the control of the employer. Here I would like to draw attention to the fact that, in accordance with Art. 57 of the Labor Code of the Russian Federation, a workplace is an additional condition of an employment contract, which may or may not be specified in the contract. Moreover, if the organization rents premises for offices, there is a possibility of moving, then it is not recommended to directly indicate the workplace in the employment contract. Since, if you need to move to a different address, you will have to ask the consent of all employees or go through the procedure for amending the employment contract under Art. 74 of the Labor Code of the Russian Federation, i.e. with 2 months notice.

According to A.I. Stavtseva, the workplace is a section of the production area, equipped with equipment, fixtures and tools with which the employee performs his labor function. The author believes that the workplace cannot be established by an employment contract, since it is not the subject of the will of the parties to the contract, but is determined by the administration solely "in the interests of operational management production activities". This definition was relevant at one time, and today it can leave even service workers, representatives of small and medium-sized businesses without a job.

And so, based on the above, we can conclude that the place of work is an organization and it is enough to indicate its name in the contract. And whether or not to clarify the workplace in the employment contract, as an additional condition, this is already a matter of choice for each specific employer.

The next prerequisite is the labor function. The legislator defined the concept of a labor function as follows: it is work by position in accordance with the staffing table, profession, specialty indicating qualifications, a specific type of work assigned to the employee (part 1 of article 57 of the Labor Code of the Russian Federation).

The condition on the labor function of the employee is mandatory for inclusion in the employment contract. In accordance with Part 2 of Art. 57 of the Labor Code of the Russian Federation, is work by position in accordance with the staff list, profession, specialty, indicating qualifications; specific type of work assigned to the employee. A similar definition of the labor function is given in Art. 15 of the Labor Code of the Russian Federation, according to which labor relations are recognized based on an agreement between the employee and the employer on the personal performance by the employee of a labor function for payment. Art. 56 of the Labor Code of the Russian Federation.

A lot depends on how competently and completely when concluding an employment contract the labor function and its content are determined. If an employee is dismissed for failure to perform some labor duties and an individual labor dispute is referred to the court, then it is the employer who will have to prove that the duties not performed by the employee were related to his labor duties, which he undertook to perform at the conclusion of the employment contract. And as practice shows, it is not always easy to do this when the labor dispute is already in court.

Correct and complete definition of the labor function, and its content (labor duties related to work in a specific labor function) in an employment contract is important for both the employee and the employer. It is for the purpose of performing a certain labor function that an employment contract is concluded. An employee enters into an employment contract, intending to perform certain work in a certain profession, specialty, qualification and receive fair remuneration for this work.

Particular attention should be paid to the name of the labor function of those employees whose work is associated with the provision of benefits and restrictions specified by law. For example, the right to a preferential pension, for these workers, in without fail, the name of the position (profession, specialty) must correspond to the name in the qualification directories of positions.

In turn, the employer, entrusting the employee with specific work, has the opportunity to control its implementation, and in case of non-fulfillment, it has the opportunity to bring the employee to disciplinary responsibility.

Failure by the parties to the employment contract to agree on the duties of the employee, which he must perform according to his labor function, leads to the fact that, on the one hand, the employer, abusing, imposes on the employee the performance of duties that are not related to his labor function and not previously agreed by the parties. On the other hand, the employee refuses to perform any duties, indicating that they were not assigned to him at the conclusion of the employment contract.

The next mandatory condition of the employment contract is the date of commencement of work., and in the case when a fixed-term employment contract is concluded, also the term of its validity and the circumstances, reasons that served as the basis for concluding a fixed-term employment contract. I would like to note that today nothing prevents the employer from concluding an agreement, let's say November 15, 2013, this date will be the date of signing the employment contract, in which the start date of work will be specified much later, for example, March 1, 2014. But, the date of commencement of work earlier than the signing of the contract, maybe only three working days and only in case actual admission employee to perform duties with the knowledge or on behalf of the employer.

According to Art. 67 of the Labor Code of the Russian Federation, in this case, the employment contract is considered concluded, but it must be executed in writing no later than 3 working days from the date the employee is actually admitted to work.

Another mandatory condition of the employment contract is the condition of remuneration (including the size of the tariff rate or salary (official salary) of the employee, additional payments, allowances and incentive payments). What are the most common mistakes employers make here?

Firstly, there are still employers who believe that it is enough to indicate the phrase “salary according to the staff list” in the employment contract, which is a violation. An employment contract with an employee must specify the size of the tariff rate or salary. In the event that the organization has a system of allowances, additional payments of a compensatory or incentive nature, established with the relevant provisions on remuneration, provisions on bonuses, a reference to these LNA must be made in the employment contract. But here, too, organizations make mistakes, for example, the phrase in the employment contract reads as follows: “The official salary is 20,000 rubles, and the employee can also receive incentive payments provided for by the Regulations on the remuneration of the organization.” The error is as follows, firstly, in the case of checking the organization tax office, what provision on remuneration or bonuses should the inspection open in order to understand that the organization could legitimately take into account in labor costs if the details of the LNA are not visible from the employment contract.

Secondly, if the organization had one Regulation on remuneration with good allowances, bonuses for employees, let's say from February 15, 2012, and now the employer decided to change the Regulation in the worst side for workers. Will the employer ask the consent of the employees in the case when the employment contract contained the phrase that “an incentive payment is paid in accordance with the Regulations on the remuneration of the organization” - no, since nothing has changed in the employment contract.

The employer needs to prescribe the conditions for the payment of allowances, bonuses, etc. in the employment contract, and if the organization follows the path of a reference norm to the LNA, it is imperative to indicate its details, date and number (the date of the LNA is the date of their approval). Then it is clear to the tax authorities and the state labor inspectorate that the employer has set wages in the employment contract without violating the rights of employees.

Another important point related to the condition of remuneration is the establishment of salaries and tariff rates for employees and their relationship with the minimum salary. Back in 2007, Russia passed a reform of the minimum wage, as a result of which Art. 129 and 133 of the Labor Code of the Russian Federation. The changes led to the fact that the norms that provided that the size of the official salary, the base salary in public sector or the tariff rate of an employee who has fully worked out the monthly norm of working time, fulfilled his labor duties and labor standards, cannot be lower than the minimum wage established by the Federal Law. These norms were excluded from the Labor Code. Starting from September 1, 2007, the Labor Code of the Russian Federation states that no official salary or tariff rate, and the monthly salary of an employee who has fully worked out the standard of working hours for a month and who has fulfilled the labor standards (labor duties) cannot be lower than the minimum wage. Despite the change in the law, workers often challenged the establishment of their salaries in an amount that is below the minimum wage.

Federal Law No. 336-FZ of December 2, 2013 “On Amendments to Article 1 of the Federal Law “On minimum size wages "" established the minimum wage from 01.01.2014 in the amount of 5,554 rubles per month. For 2013, its size was 5,205 rubles.

MOT is used for:

Regulation of wages;

Determining the amount of benefits for temporary disability, pregnancy and childbirth;

And also for other purposes of compulsory social insurance.

Despite the change in the law, workers often challenged in court the establishment of salaries below the minimum wage.

Also, pursuant to Art. 136 of the Labor Code of the Russian Federation in the employment contract, it is necessary to prescribe the conditions for the non-cash method of paying wages, if any, in the organization. Here we will talk about the terms of payment of wages. In accordance with Art. 136 of the Labor Code of the Russian Federation, wages must be paid at least every half a month on the day determined by the internal labor regulations, the collective agreement, the employment contract. Terms for payment of salaries should be chosen in such a way that between each payment there was no more than half a month.

In 2009, Rostrud, in a letter dated November 30, 2009 No. 3528-6-1, clarified this issue using the example of paying salaries to part-time workers and noted that the provisions of Art. 136 of the Labor Code are imperative, i.e. are mandatory. Labor law does not provide for any exceptions to the established rule, and it does not matter where the employee works at the main place or part-time.

The next condition is the regime of working time and rest time. Here you should pay attention to the fact that the mode of working time and rest time becomes a mandatory condition of the employment contract only if it differs from the general rules in force for this employer, which should be indicated in the internal labor regulations of the organization. Here, unfortunately, employers also make mistakes when the internal labor regulations indicate the standard working hours, but in fact, employees of many structural divisions work in completely different modes ( shift work or providing staggered days off).

All possible modes of working time should be fixed in the internal labor regulations. The employee in the employment contract only specifies which of the regimes listed in the internal labor regulations will apply to him.

In addition, mandatory conditions of the employment contract are compensation for hard work and work with harmful, dangerous working conditions; the mode of time of work and rest (if the employer has an individual one for this employee); a condition on compulsory social insurance of an employee and some other conditions provided for by labor legislation.

Taking into account the specifics of the personality of the employer or employee, it is possible to single out contracts concluded with women and persons performing family responsibilities, with minors, religious organizations, and with employers - individuals.

By the nature of labor activity, it is possible to distinguish employment contracts with teaching staff, heads of organizations and members of their collegiate executive bodies, professional athletes and coaches, artists, transport workers, medical workers and persons working in organizations of the Armed Forces of the Russian Federation and federal bodies executive power.

As for the place of application of labor, they distinguish labor contracts with persons working on a rotational basis; workers employed in the regions of the Far North and areas equated to them, homeworkers, employees of representative offices of the Russian Federation abroad.

Not so long ago, the adopted law amending the Labor Code of the Russian Federation finally settled legal status workers performing their duties outside the office.

Before the appearance of a separate chapter in the Labor Code, persons working remotely were equated in terms of regulatory features labor relations with them to homeworkers.

Now there is every reason to distinguish between home and remote work.

On April 19, 2013, Federal Law No. 60-FZ of April 5, 2013 “On Amendments to Certain Legislative Acts of the Russian Federation” came into force, in accordance with which a new chapter was introduced into the Labor Code of the Russian Federation. 49.1 dedicated to labor regulation remote workers. The federal law regulated the relations that have developed in modern practice, when employers hire employees who work without being in premises owned by employers. If earlier such employees were most often registered by employers as homeworkers, now there is a separate chapter in the Labor Code of the Russian Federation, which provides for the features of labor regulation for this category of workers.

According to Part 1 of Art. 312.1 of the Labor Code of the Russian Federation remote work is the performance of a labor function defined by an employment contract outside the location of the employer, its branch, representative office, other separate structural unit (including those located in another locality), outside a stationary workplace, territory or facility, directly or indirectly under the control of the employer , subject to the use of information and telecommunication networks for the performance of this labor function and for the interaction between the employer and the employee on issues related to its implementation common use, including the Internet.

From this definition, two main features of remote work can be distinguished. Firstly, such work is performed outside the location of the employer, his separate subdivision outside a fixed workplace, territory or facility directly or indirectly under the control of the employer. This feature distinguishes teleworkers not only from workers working at the employer's site (office), but also from home workers working from home, since the worker's home can in this case be considered a place indirectly under the control of the employer. It's fair to say that teleworkers basically don't have a job in the legal sense of the word.

Secondly, the second sign of remote work is the use of public information and telecommunication networks (including the Internet) to perform the labor function and interact with the employer. This feature can be considered secondary, since the use of public networks is typical for many types of work performed at the employer's facility.

An employment contract with a homeworker must specify:

1) the nature of the work - home work;

2) place of work - the name of the employer;

3) place of performance of the labor function (place of work) - the address of the employee's residence;

4) the procedure and terms for providing homeworkers with raw materials, materials and semi-finished products by the employer and (or) the amount and procedure for paying compensation for the use (wear and tear, depreciation) of equipment, tools, materials belonging to the homeworker and used in the performance of the labor function, as well as the procedure for reimbursement of expenses, related to their use (Article 188 of the Labor Code of the Russian Federation);

5) the procedure and terms for the export of finished products;

6) the procedure for payment for manufactured products or the conditions for remuneration of labor, taking into account the place of performance of the labor function.

Depending on the terms of validity, there are fixed-term employment contracts and those concluded for an indefinite period. An employment contract may be concluded for a period not exceeding five years. A fixed-term employment contract is concluded in cases where the establishment of labor relations for an indefinite period is impossible due to the nature of the work to be performed or the conditions for its performance. Although, by agreement of the parties, a fixed-term employment contract may be concluded without taking into account the nature of the work to be done, the conditions for its implementation. If the term of the employment contract is not defined in the document itself, then the contract is considered concluded for an indefinite period. If an employment contract is concluded for a fixed period without sufficient grounds, then by a court decision it may be considered concluded for an indefinite period.

Conclusion fixed-term contract the employer may pursue the goal of avoiding granting the rights and guarantees of employees under contracts for an indefinite period, but this is prohibited by law. Part 4 Art. 58 of the Labor Code of the Russian Federation: “In the event that none of the parties demanded the termination of a fixed-term employment contract due to the expiration of its validity period and the employee continues to work after the expiration of the employment contract, the condition on the urgent nature of the employment contract becomes invalid and the employment contract is considered concluded For undefined period".

Article 59 of the Labor Code of the Russian Federation regulates in detail the conditions for concluding a fixed-term employment contract. So, a fixed-term employment contract is:

- at the time of execution temporary work, the duration of which does not exceed two months;

- for the duration of the performance of the duties of an absent employee, for whom the workplace is retained;

- with persons sent to work abroad;

- for the purpose of performing seasonal work, when due to natural conditions work can only be done for a certain period;

- to perform work that goes beyond the normal activities of the employer, work related to the temporary expansion of the volume of services or production provided;

- with persons who are accepted to perform certain work in cases where its completion cannot occur by a specific date;

- with persons working in an organization created on certain period or to perform a specific job;

- to perform work directly related to vocational training and internship of the worker;

- in case of election for a certain period to an elective position or a member of an elected body;

— with citizens undergoing an alternative civil service;

- with persons who were sent to temporary and public Works employment service authorities;

- as well as in other cases provided for by federal law.

In addition, a fixed-term employment contract may be concluded by agreement of the parties:

- for employers - small businesses, the total number of employees of which does not exceed 35 people (in the field of retail and consumer services- 20 people);

- in organizations located in the regions of the Far North and areas equivalent to them, if this requires moving to the place of work;

- with pensioners by age;

- with persons who, on the basis of medical report for health reasons, only temporary work is allowed;

– to carry out urgent work to prevent accidents, accidents, disasters, epidemics, epizootics, to eliminate the consequences emergencies;

- with creative workers;

— with full-time students;

- with heads, deputy heads and chief accountants of organizations, regardless of ownership;

- with persons entering a part-time job, as well as in some other cases.

Mistakes made by employers when concluding an employment contract can be conditionally divided into the following:

- failure to enter the necessary information about the employee and (or) employer into the contract;

- errors of a technical nature that distort the data;

- the absence of certain mandatory conditions.

The law establishes that even if some mandatory information is missing in the employment contract, this does not give the right to recognize it as not concluded or invalid (Article 57 of the Labor Code of the Russian Federation). That is, the contract continues to be valid even if it does not indicate, for example, the TIN of the employer, the place where the employment contract was concluded, or it is not sealed, etc.

It is important to remember that neither the employee nor the employer can arbitrarily change the terms of the employment contract unilaterally. Before the amendments to the code, which came into force on October 6, 2006, the employer had the right to change essential working conditions by giving the employee two months' notice. Now there is no such concept in the Labor Code, but there is Art. Article 72 governing change certain parties terms of the employment contract.

Changing the terms of the employment contract determined by the parties, including transfer to another job, is allowed only by agreement of the parties to the employment contract, with the exception of cases provided for Labor Code. An agreement to change the terms of an employment contract determined by the parties is concluded in writing. Exceptions are simple and force majeure circumstances, such as: natural or man-made disasters, industrial accidents, industrial accidents, fires, floods, famines, earthquakes, epidemics or epizootics, and in any exceptional cases that endanger life or normal life the conditions of the entire population or part of it. In these cases, 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.

From the foregoing, we can conclude that an employment contract gives rise to individual rights and obligations of the parties - the employer and the employee within the framework of the labor relationship mediated by it. The terms of an employment contract determine, in the general case, the behavior of two subjects and are not of a normative, universally binding nature. But this is the case if we consider a specific employment contract. At the same time, if we turn to any set of individual labor contracts (for example, within a production team or workshop), then their conditions create a certain system of interacting (corresponding) rights and obligations. And not only along the "vertical": employee - employer, but also along the "horizontal": employee - employee. At the same time, since the totality of the rights and obligations of the general labor process creates a certain legal regime that determines the behavior of employees ... then there are grounds to attribute the employment contract to the number of elements of the system of sources of labor law. The significance of an employment contract as a source of law is also confirmed by the requirement of the legislation on the need to conclude it exclusively in writing.