Full text of Art. 61 of the Labor Code of the Russian Federation with comments. New current edition with additions for 2020. Legal advice on Article 61 of the Labor Code of the Russian Federation.
An employment contract shall enter into force from the date of its signing by the employee and the employer, unless otherwise provided by this Code, other federal laws, other regulatory legal acts of the Russian Federation or an employment contract, or from the date actual assumption employee to work with the knowledge or on behalf of the employer or his authorized representative.
The employee is required to start job duties from the date specified in the employment contract.
If the employee did not start work on the day of commencement of work, established in accordance with the second or third part of this article, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded. Cancellation employment contract does not deprive the employee of the right to receive security under mandatory social insurance upon the occurrence of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation.
Commentary on Article 61 of the Labor Code of the Russian Federation
1. Art. 61 of the Labor Code of the Russian Federation, the legislator provides for two alternative circumstances, upon the occurrence of which the employment contract enters into force.
By general rule the employment contract comes into force from the date of signing by the employee and the employer.
At the same time, an employment contract is considered concluded from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative.
Other regulatory legal acts may provide for other terms for the entry into force of an employment contract.
So, for example, based on the provisions of Part 6 of Art. 13.2 FZ "On legal status foreign citizens in the Russian Federation" the entry into force of an employment contract with a highly qualified specialist-citizen of a foreign state is conditional on his obtaining a work permit in the Russian Federation. Similar provisions are contained in Article 327.3 of the Labor Code of the Russian Federation, according to which an employment contract with a foreign citizen or stateless person comes into force in force not earlier than the day such person receives a work permit.
According to the Decree of the Government of the Russian Federation of October 28, 2009 N 848 "On additional conditions for concluding, changing and terminating employment contracts with military personnel sent to non-military positions in organizations operating in the interests of national defense and state security, and federal state educational institutions higher vocational education"an employment contract with such servicemen shall enter into force from the day the serviceman is excluded from the lists of personnel of the military unit.
In the definition of the Supreme Court of the Russian Federation of February 18, 2010 N 4-В09-54, it is noted that the fact of concluding an employment contract indicates the emergence between the parties of legal employment relations that precede the emergence directly labor relations and ending at the moment when the employee directly began to perform the function assigned to him by the employment contract, and the employer allowed the employee to work, which is the law-forming factor with which the parties to such an agreement have appropriate labor rights and responsibilities.
2. An employment contract is the legal basis for applying for a job in accordance with.
In the provisions of Art. 61 of the Labor Code of the Russian Federation, the legislator shares the concepts of the day the contract is concluded and the day when the employee is obliged to begin to fulfill his labor function.
As a general rule, an employee is obliged to start performing labor duties from the day specified in the employment contract.
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.
When the employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing no later than three working days from the date of the actual admission of the employee to work ().
3. If the employee did not start work on the day the work began, established in accordance with Part 2 or Part 3 of Art. 61 of the Labor Code of the Russian Federation, the employer has the right to cancel the employment contract.
Previously, before the changes made to Art. 61 of the Labor Code of the Russian Federation Federal Law of June 30, 2006 N 90-FZ, this norm had the following content: "If the employee did not start work on time without good reasons within a week, the contract will be cancelled.
The current Labor Code of the Russian Federation does not provide for a weekly period for establishing the fact of non-fulfillment by an employee of obligations under an employment contract. To cancel an employment contract with an employee, one day is sufficient, during which the employee did not start work, even if he was present at the workplace.
An annulled employment contract is considered not concluded and thus does not entail any legal consequences.
The legislator noted that the annulment of an employment contract does not deprive the employee of the right to receive mandatory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until the day of its annulment.
For example, in case of refusal to accept for consideration the complaint of citizen Toder V.N. for violation of his constitutional rights, Part 4, Art. 61 of the Labor Code of the Russian Federation, the Constitutional Court of the Russian Federation indicated that Part 4 of Art. 61 of the Labor Code of the Russian Federation, providing the employer with the opportunity to promptly make the necessary personnel decisions, and giving the employee the right to refuse to fulfill the terms of an already concluded employment contract without any negative consequences and the right to receive compulsory social insurance, if there are grounds established by law, is aimed at achieving a balance of interests of the employer and the employee who is necessary condition harmonization of labor relations, and cannot be considered as violating the constitutional rights of the applicant (see the definition of the Constitutional Court of the Russian Federation of July 17, 2012 N 1313-O).
Another commentary on Art. 61 Labor Code of the Russian Federation
1. When interpreting the moment of entry into force of an employment contract, it is necessary to determine what constitutes the fact of the entry into force of an employment contract and what is the ratio of the moment the employment contract enters into force with the onset of other circumstances that are also of legal significance. Among such circumstances should be mentioned: a) the day of signing the contract; b) the day the work started (); in a day actual admission employee to work (Article 67 of the Labor Code).
2. By virtue of an employment contract, an employee is obliged to work in a specific job function, subject to the rules of the internal work schedule, and the employer - to pay him the stipulated wages and ensure the fulfillment of other conditions arising from labor legislation, from collective agreement(agreements) and agreements of the parties (see article 56 of the Labor Code and commentary thereto). Based on this definition, it should be recognized that the entry into force of an employment contract means, first of all, the emergence of the above obligations for its parties, i.e. occurrence employment relationship. This circumstance, in particular, means the following: a) from the moment the contract comes into force, the labor and legal relationship that has arisen between the employee and the employer can be interrupted only on the grounds and in the manner established by labor legislation (see Chapter 13 of the Labor Code and commentary thereto) ; b) the position for the performance of duties for which the contract was concluded can no longer be considered vacant - with all the organizational and legal consequences arising from this fact; c) an employee, as a party to an employment relationship, may be sent for training, retraining, etc.; d) the time from the entry into force of the contract should be counted in the length of service necessary for leaving annual leave(see article 114 of the Labor Code and commentary to it).
At the same time, the entry into force of the contract can be spaced apart in time from the moment the work begins. In this case, a number of rights and obligations of the parties, the occurrence of which is associated with the fact of the beginning of real labor activity employee, at the time of entry into force of the employment contract remain invalid.
Along with the emergence of an employment relationship between an employee and an employer, the fact that an employment contract comes into force gives rise to other legal implications relating to other subjects. From the moment the employment contract enters into force, the calculation of seniority begins, deductions are made by the employer to the relevant state funds, etc.
3. An employment contract enters into force from the day it is signed by the employee and the employer, unless otherwise provided by federal laws, other regulatory legal acts or an employment contract (part 1 of the commented article). Thus, if, as a general rule, the day the contract is signed is also the day it comes into force, then two exceptions are established from this rule - the date of signing and the moment the contract comes into force may not coincide due to: 1) a direct prescription of a federal law or other regulatory legal act; 2) the concluded labor contract.
4. Currently regulations determine the time gap between the signing of an employment contract and its entry into force, mainly in cases where such contracts are concluded in the sphere of state property ( government controlled). The difference in time between the conclusion of an employment contract and its entry into force is explained by the need to coordinate the contract with the relevant management body.
As follows from part 1 of the commented article, such rules can be established exclusively by federal laws or other regulatory legal acts of the Russian Federation.
5. The condition for the later entry into force of the employment contract may be established in the contract itself. This is possible in the case when the work for which the employee is hired is not of a continuing nature, but has a frequency known in advance, and the parties are interested in continuing cooperation. In this case, a one-time conclusion of a series of employment contracts is possible with the determination of the moment of entry into force of each of them. Another case is the conclusion of an employment contract in a situation where this moment At present, the employer does not have a vacancy, but it is reliably known that this vacancy will appear in the future.
There are two options for establishing the moment of entry into force of the employment contract. In the most obvious case, this moment is associated with the onset of a certain date. However, it is not always possible to set the exact date. For example, it is impossible to determine exactly the day when a pregnant employee will go on maternity leave. In such situations, it is advisable to associate the moment the employment contract enters into force not with the exact date, but with the occurrence of a certain event. In our example, it will be the fact that the employee goes on maternity leave.
6. From the moment of signing the contract, the employee has the right to receive compulsory social insurance in the event of an insured event.
The parties have the right to withdraw from the contract at any time by formalizing their mutual refusal by a written agreement. With regard to unilateral withdrawal from the treaty, the following questions arise: a) is unilateral withdrawal possible in principle; b) if possible, what is its procedure; c) what are the legal consequences of unilateral withdrawal from the contract? Unilateral refusal of a contract that has not even entered into force contradicts the basic principle of contract law "contracts must be performed" and violates the interests of the opposite side.
The employee may withdraw from the contract at any time before its entry into force - another solution to this issue would threaten the emergence of the phenomenon of forced labor, which is completely excluded. The issue of the procedure for an employee to refuse a contract that has not entered into force has not been resolved by law, therefore, it can be recommended to determine the appropriate procedure when concluding a contract. The possibility of imposing on the employee any type of legal liability, including disciplinary and property (in the form, for example, a penalty), in case of unjustified refusal from the contract, seems doubtful. An exception is the case when the contract is concluded under the condition of the employee's obligation to compensate the employer's expenses incurred by the latter in connection with the employee's training (see Articles 207, 249 of the Labor Code and comments thereto).
The employer has the right to cancel the concluded contract at any time before its entry into force, however, in relation to him, the contract may establish liability of a property nature for unreasonable cancellation of the contract.
Finally, the entry into force of the employment contract is excluded due to the occurrence of circumstances of an extraordinary nature, for example, due to the absence of an event with the occurrence of which the entry into force of the employment contract was associated (a female employee does not go on maternity leave due to termination of pregnancy). The consequences of such circumstances should also be stipulated when concluding an employment contract.
7. It is necessary to distinguish between the moment when the obligations (and rights) of the parties to the employment contract arise, i.e. the entry into force of the employment contract, and the moment when the employee begins to actually fulfill his duties. For example, the parties may additionally specify the date of commencement of work at the conclusion of the contract; the employee is obliged to begin the performance of labor duties from that day. Despite the fact that, in accordance with Art. 57 TC start date is prerequisite of the employment contract, as follows from part 3 of the commented article, this condition may not be determined by the parties. In this case, the obligation of the employee to start work arises on the next working day after the entry into force of the contract. Therefore, along with the fact that the employment contract has come into force, the fact that work has begun is also of legal importance.
Just as with the entry into force of an employment contract, the fact that the performance of the work stipulated by the contract has begun gives rise to a number of rights and obligations both for the parties to the employment relationship and for third parties. For example, from this moment the employee is paid wages, the employer is obliged to provide the employee with proper working conditions; in turn, the employee actually falls under the master's (normative, directive and disciplinary) power of the employer.
8. If the employee did not start work within the period stipulated by law or the contract due to the fault of the employer, the time during which the employee was unable to start work should be regarded as downtime through no fault of the employee. In this case, the employee must notify the employer in writing that he is ready to start work, but has not received it (see article 157 of the Labor Code and commentary to it).
The employee may not start work at the agreed time for reasons not related to the guilty actions (inaction) of the employer. In this case, the employer has the right to cancel the employment contract regardless of the employee’s fault, and he has the right to do this from the date the contract enters into force, determined according to the rules established by part 2 or 3 of the commented article. The canceled employment contract in this case is considered not concluded.
If the employee did not start work due to temporary disability, he, by virtue of part 4 of the commented article, has the right to receive mandatory social insurance coverage in the event of an insured event in the period from the date of conclusion of the employment contract until its cancellation.
9. Cancellation of the contract is a right, not an obligation of the employer. Therefore, if the employee did not start work on time without valid reasons, the employer has the right to either cancel the employment contract (without clarifying the existence and content of these reasons), or, considering the employment contract entered into force, bring the guilty employee to disciplinary liability, including including dismissing him for absenteeism according to the rules established by the Labor Code (see Articles 81, 193 of the Labor Code and comments thereto). In the latter case, dismissal is carried out either from the day when the employee was obliged to start work, or, if the employee came to work and was admitted to work, from the last day of work.
10. Cancellation of the employment contract is carried out by order of the employer. An appropriate entry is made in the work book with reference to part 4 of the commented article and to the corresponding order. This kind of record makes sense if work book the employee has already made an entry on the conclusion of the employment contract: otherwise, the entry is not required.
Cancellation of an employment contract indicates that the employment relationship has not actually arisen from the day it should have arisen. Thus, the moment of annulment of the employment contract should be associated with the date of its entry into force.
11. The legislator provides for a situation in which the moments of the entry into force of the contract and the beginning of the performance of labor duties by the employee are possible. In accordance with part 1 of the commented article, the employment contract enters into force from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative (for this, see article 67 of the Labor Code and commentary thereto). Thus, the fact of the entry into force of an employment contract and the emergence of an employment relationship is determined not by the date formulated in the contract, but by the actions of its parties of a conclusive nature.
Consultations and comments of lawyers on Article 61 of the Labor Code of the Russian Federation
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ST 61 of the Labor Code of the Russian Federation.
An employment contract shall enter into force from the day it is signed by the employee and the employer, unless otherwise provided by this Code, other federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his employer. authorized representative.
The employee is obliged to start performing labor duties from the day specified in the employment contract.
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.
If the employee did not start work on the day of commencement of work, established in accordance with the second or third part of this article, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded. Cancellation of an employment contract does not deprive the employee of the right to receive mandatory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation.
Commentary on Art. 61 of the Labor Code of the Russian Federation
1. When interpreting the moment of entry into force of an employment contract, it is necessary to determine what constitutes the fact of the entry into force of an employment contract and what is the ratio of the moment the employment contract enters into force with the onset of other circumstances that are also of legal significance. Among such circumstances should be mentioned: a) the day of signing the contract; b) the day the work started (); c) the day the employee is actually admitted to work ().
2. By virtue of the employment contract, the employee is obliged to work according to a certain labor function, subject to the rules of the internal labor schedule, and the employer is obliged to pay him the stipulated wages and ensure the fulfillment of other conditions arising from labor legislation, from the collective agreement (agreement) and the agreement of the parties ( see article 56 of the Labor Code of the Russian Federation and commentary to it). Based on this definition, it should be recognized that the entry into force of an employment contract means, first of all, the emergence of the above obligations for its parties, i.e. emergence of an employment relationship. This circumstance, in particular, means the following: a) from the moment the contract enters into force, the labor and legal relationship that has arisen between the employee and the employer can be interrupted only on the grounds and in the manner established by labor legislation (see also the commentary to it); b) the position for the performance of duties for which the contract was concluded can no longer be considered vacant - with all the organizational and legal consequences arising from this fact; c) an employee, as a party to an employment relationship, may be sent for training, retraining, etc.; d) the time since the entry into force of the contract should be counted in the length of service required for taking annual leave (see also the commentary to it).
At the same time, the entry into force of the contract can be spaced apart in time from the moment the work begins. In this case, a number of rights and obligations of the parties, the emergence of which is associated with the fact of the start of the actual labor activity of the employee, at the time the employment contract enters into force, remain invalid.
Along with the emergence of an employment relationship between an employee and an employer, the fact that an employment contract comes into force gives rise to other legal consequences relating to other entities. From the moment the employment contract enters into force, the calculation of seniority begins, deductions are made by the employer to the relevant state funds, etc.
3. An employment contract enters into force from the day it is signed by the employee and the employer, unless otherwise provided by federal laws, other regulatory legal acts or an employment contract (part 1 of the commented article). Thus, if, as a general rule, the day the contract is signed is also the day it comes into force, then two exceptions are established from this rule - the date of signing and the moment the contract comes into force may not coincide due to: 1) a direct prescription of a federal law or other regulatory legal act; 2) the concluded labor contract.
4. At present, normative acts determine the time gap between the signing of an employment contract and its entry into force, mainly in cases where such contracts are concluded in the sphere of state property (public administration). The difference in time between the conclusion of an employment contract and its entry into force is explained by the need to coordinate the contract with the relevant management body.
As follows from part 1 of the commented article, such rules can be established exclusively by federal laws or other regulatory legal acts of the Russian Federation.
5. The condition for the later entry into force of the employment contract may be established in the contract itself. This is possible in the case when the work for which the employee is hired is not of a continuing nature, but has a frequency known in advance, and the parties are interested in continuing cooperation. In this case, a one-time conclusion of a series of employment contracts is possible with the determination of the moment of entry into force of each of them. Another case is the conclusion of an employment contract in a situation where at the moment the employer does not have a vacancy, but it is reliably known that this vacancy will appear in the future.
There are two options for establishing the moment of entry into force of the employment contract. In the most obvious case, this moment is associated with the onset of a certain date. However, it is not always possible to set the exact date. For example, it is impossible to determine exactly the day when a pregnant employee will go on maternity leave. In such situations, it is advisable to associate the moment the employment contract enters into force not with the exact date, but with the occurrence of a certain event. In our example, it will be the fact that the employee goes on maternity leave.
6. From the moment of signing the contract, the employee has the right to receive compulsory social insurance in the event of an insured event.
The parties have the right to withdraw from the contract at any time by formalizing their mutual refusal by a written agreement. With regard to unilateral withdrawal from the treaty, the following questions arise: a) is unilateral withdrawal possible in principle; b) if possible, what is its procedure; c) what are the legal consequences of unilateral withdrawal from the contract? Unilateral refusal of a contract that has not even entered into force contradicts the basic principle of contract law "contracts must be performed" and violates the interests of the opposite side.
The employee may withdraw from the contract at any time before its entry into force - another solution to this issue would threaten the emergence of the phenomenon of forced labor, which is completely excluded. The issue of the procedure for an employee to refuse a contract that has not entered into force has not been resolved by law, therefore, it can be recommended to determine the appropriate procedure when concluding a contract. The possibility of imposing on the employee any type of legal liability, including disciplinary and property (in the form, for example, a penalty), in case of unjustified refusal from the contract, seems doubtful. An exception is the case when the contract is concluded under the condition of the employee's obligation to compensate the employer's expenses incurred by the latter in connection with the employee's training (see Articles 207, 249 of the Labor Code of the Russian Federation and comments thereto).
The employer has the right to cancel the concluded contract at any time before its entry into force, however, in relation to him, the contract may establish liability of a property nature for unreasonable cancellation of the contract.
Finally, the entry into force of the employment contract is excluded due to the occurrence of circumstances of an extraordinary nature, for example, due to the absence of an event with the occurrence of which the entry into force of the employment contract was associated (a female employee does not go on maternity leave due to termination of pregnancy). The consequences of such circumstances should also be stipulated when concluding an employment contract.
7. It is necessary to distinguish between the moment when the obligations (and rights) of the parties to the employment contract arise, i.e. the entry into force of the employment contract, and the moment when the employee begins to actually fulfill his duties. For example, the parties may additionally specify the date of commencement of work at the conclusion of the contract; the employee is obliged to begin the performance of labor duties from that day. Despite the fact that, in accordance with Art. 57 of the Labor Code of the Russian Federation, the date of commencement of work is a prerequisite of the employment contract, as follows from part 3 of the commented article, this condition may not be determined by the parties. In this case, the obligation of the employee to start work arises on the next working day after the entry into force of the contract. Therefore, along with the fact that the employment contract has come into force, the fact that work has begun is also of legal importance.
Just as with the entry into force of an employment contract, the fact that the performance of the work stipulated by the contract has begun gives rise to a number of rights and obligations both for the parties to the employment relationship and for third parties. For example, from this moment the employee is paid wages, the employer is obliged to provide the employee with proper working conditions; in turn, the employee actually falls under the master's (normative, directive and disciplinary) power of the employer.
8. If the employee did not start work within the period stipulated by law or the contract due to the fault of the employer, the time during which the employee was unable to start work should be regarded as downtime through no fault of the employee. In this case, the employee must notify the employer in writing that he is ready to start work, but did not receive it (see article 157 of the Labor Code of the Russian Federation and commentary to it).
The employee may not start work at the agreed time for reasons not related to the guilty actions (inaction) of the employer. In this case, the employer has the right to cancel the employment contract regardless of the employee’s fault, and he has the right to do this from the date the contract enters into force, determined according to the rules established by part 2 or 3 of the commented article. The canceled employment contract in this case is considered not concluded.
If the employee did not start work due to temporary disability, he, by virtue of part 4 of the commented article, has the right to receive mandatory social insurance coverage in the event of an insured event in the period from the date of conclusion of the employment contract until its cancellation.
9. Cancellation of the contract is a right, not an obligation of the employer. Therefore, if the employee did not start work on time without valid reasons, the employer has the right to either cancel the employment contract (without clarifying the existence and content of these reasons), or, considering the employment contract entered into force, bring the guilty employee to disciplinary liability, including including dismissing him for absenteeism in accordance with the rules established by the Labor Code of the Russian Federation (see Articles 81, 193 of the Labor Code of the Russian Federation and comments thereto). In the latter case, dismissal is carried out either from the day when the employee was obliged to start work, or, if the employee came to work and was admitted to work, from the last day of work.
10. Cancellation of the employment contract is carried out by order of the employer. An appropriate entry is made in the work book with reference to part 4 of the commented article and to the corresponding order. It makes sense to make such an entry if an entry on the conclusion of an employment contract has already been made in the work book of the employee: otherwise, the entry is not required.
Cancellation of an employment contract indicates that the employment relationship has not actually arisen from the day it should have arisen. Thus, the moment of annulment of the employment contract should be associated with the date of its entry into force.
11. The legislator provides for a situation in which the moments of the entry into force of the contract and the beginning of the performance of labor duties by the employee are possible. In accordance with part 1 of the commented article, the employment contract enters into force from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative (for this, see Article 67 of the Labor Code of the Russian Federation and commentary thereto). Thus, the fact of the entry into force of an employment contract and the emergence of an employment relationship is determined not by the date formulated in the contract, but by the actions of its parties of a conclusive nature.
Article 61 of the Labor Code of the Russian Federation with comments and changes in 2019-2020.
An employment contract shall enter into force from the day it is signed by the employee and the employer, unless otherwise provided by this Code, other federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his employer. authorized representative.
The employee is obliged to start performing labor duties from the day specified in the employment contract.
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.
If the employee did not start work on the day of commencement of work, established in accordance with the second or third part of this article, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded. Cancellation of an employment contract does not deprive the employee of the right to receive mandatory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation.
Commentary on article 61 of the Labor Code of the Russian Federation:
1. Article 61 of the Labor Code of the Russian Federation with comments states that the entry into force of an employment contract means that from that moment on, its parties acquire the rights and bear the obligations provided for in Articles 21, 22 of the Labor Code of the Russian Federation and the employment contract.
In accordance with part 1 of this article, an employment contract is considered to have entered into force, as a general rule, from the date of its signing by both parties - the employee and the employer. A law or other regulatory legal act may determine a different moment for the entry into force of an employment contract.
The parties themselves have the right to determine a different date for the entry into force of the employment contract, for example, after a week or a month from the date of its signing. If the employment contract with the employee was not properly executed, but the employee actually started work with the knowledge or on behalf of the employer or his representative, the employment contract is considered to have entered into force from the day the employee was actually admitted to work (see also comments to Article 67 ).
In cases where, by agreement between the employee and the employer, the term for the entry into force of the employment contract does not coincide with the day of its signing, the contract must indicate the exact date the signed employment contract enters into force, i.e. day, month and year.
2. When concluding an employment contract, the parties determine in it the day from which the employee is obliged to start performing his labor duties, i.e. specify a specific day, month and year.
If the day of commencement of work at the conclusion of the employment contract is not defined, then the employee must start work on the next day after the entry into force of the employment contract (for example, if the employment contract was signed by the parties on March 1, 2009, then the employee must start work on March 2, 2009 .).
3. In accordance with Part 4 of Article 61 of the Labor Code of the Russian Federation with comments in cases where an employee who has entered into an employment contract does not start work on time (on the day the work starts), the employer has the right to cancel the employment contract. At the same time, he is not obliged to find out the reason why the employee did not come to work. In practice, the employer has the right to issue an order to cancel the employment contract the very next day after the day on which the employee was supposed to start work, but did not start. However, he can do it in more late deadline if the employee did not show up for work. The canceled employment contract is considered not concluded.
The employer does not bear any obligations to the employee under an employment contract recognized as canceled, with the exception of obligations related to the provision of compulsory social insurance. Cancellation of an employment contract, as provided for in Part 4 of Article 61 of the Labor Code of the Russian Federation, does not deprive the employee of the right to receive mandatory social insurance coverage if the insured event occurred in the period from the day the employment contract was concluded to the day it was canceled (see comments to Article 183 ).
Cancellation of an employment contract cannot serve as an obstacle to the conclusion of a new employment contract if the parties subsequently come to an agreement on the need to enter into labor relations.
An employment contract shall enter into force from the day it is signed by the employee and the employer, unless otherwise provided by this Code, other federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his employer. authorized representative.
The employee is obliged to start performing labor duties from the day specified in the employment contract.
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.
If the employee did not start work on the day of commencement of work, established in accordance with the second or third part of this article, the employer has the right to cancel the employment contract. The canceled employment contract is considered not concluded. Cancellation of an employment contract does not deprive the employee of the right to receive mandatory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract until the day of its cancellation.
Commentary on Art. 61 Labor Code of the Russian Federation
1. As a rule, an employment contract enters into force from the day it is signed by the parties, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative, or if otherwise is established:
a) federal law, other regulatory legal acts;
b) an employment contract.
2. Determination of the beginning of the practical performance of labor duties by an employee must be established by an employment contract. Otherwise, the day of commencement of work is the next working day after the entry into force of the contract.
3. Cancellation of the employment contract is made by the employer in case of disrespectful reasons due to which the employee did not start work.
Second commentary on Article 61 of the Labor Code
1. An important legal guarantee is that the employment contract comes into force from the day it is signed by the employer and employee. This is a general rule provided for by this article of the Code.
The employee will be considered hired from the specific date specified in the order (instruction) of the employer. It must be remembered that this date must correspond to the date of employment, stipulated by the employment contract.
2. The legal guarantee is the actual admission of the employee to work with the knowledge or on behalf of the employer or his representative. Here, the employment contract comes into force from the day the employee is actually admitted to work.
3. In cases where the employment contract does not stipulate the day of commencement of work, the employee must start work on the next working day after the entry into force of the contract. If the employee, without good reason, did not start work on time, the employer has the right to cancel this employment contract. In this case, the employment contract is considered not concluded.
You should be aware that the cancellation of the employment contract itself does not deprive the employee of the right to receive mandatory social insurance in the event of an insured event in the period from the date of conclusion of the employment contract to the day of its cancellation.
4. In some cases, federal laws, other regulatory legal acts or agreement of the parties may establish a different procedure for the entry into force of an employment contract.
For example, the conclusion of an employment contract with the head of a federal state unitary enterprise is carried out federal authorities executive power, which are entrusted with the coordination and regulation of activities in the relevant industries or areas of management in agreement with the Ministry of State Property of the Russian Federation. AT this case an order for appointment to a position is possible only after confirmation by the Ministry of State Property of the Russian Federation of the relevant approval (see Decree of the Government of the Russian Federation of March 16, 2000 "On the procedure for concluding employment contracts and certification of heads of federal state unitary enterprises"(As amended on March 23, 2006) // SZ RF. 2000. N 13. Art. 1373).
The Labor Code establishes that the beginning of a working relationship between an employer and an employee must be marked by the conclusion of an appropriate agreement. It is with its signing that the registration of a new person begins, which from the status of an applicant is transferred to the category of employees.
An employment contract is a special document that is drawn up according to special rules and contains information about the legal relations that have arisen between the parties.
One of the most important aspects in agreements is the period of their validity, namely the beginning of cooperation. At what point does it start to work? Does the deadline for signing the contract coincide with the day the work begins? Is it possible? All these nuances are explained by article 61 of the Labor Code of the Russian Federation.
Start date
The day of signing the working contract, which determines the further relationship of the parties, is not the day the work begins.
In fact, the parties have two options for indicating the date of commencement of labor:
- Do not prescribe it separately. In this case, the first business day will be the business day following the date of signing the agreement.
- Indicate a specific date, which will become the starting point for the new employee to fulfill his work duties.
Both options are valid.
If the parties stipulate a date for the start of work later than the signing of the document itself, then they must write it down.
The timing of the run-up between the date of signing the contract and the moment of its actual beginning is not established by the legislation of the Russian Federation. They can be completely different.
The main thing is that when setting the date, the following rules are observed:
- It was agreed upon by both parties.
- The gap between the signing of the agreement and the start of work was expedient.
In some cases, the date of commencement of the performance of their work duties may be earlier than the conclusion of the agreement itself. This is possible if a person was immediately admitted to work, and only then a contract was signed with him within three working days.
All the nuances of the beginning of the fulfillment of the obligations assumed in without fail spelled out on the job application.
Cancellation of the contract
Article 61 of the Labor Code of the Russian Federation allows you to cancel the signed document unilaterally without any additional designs and arguments. Such circumstances include the fact of fixing the fact that a new employee has not taken up his duties. That is, if the employee specified date didn't start my work activity, the contract will be canceled automatically. Moreover, he is considered in the future and not at all a prisoner.
At the same time, it is important that the interval between the signing of the agreement and its cancellation is considered insurance, and if a citizen has an insured event at this time, then he has the right to receive payments in the prescribed amount.
Arbitrage practice
Morozovsky District Court of the Rostov Region considered statement of claim, in which the plaintiff stated the requirements for the recovery of wages from the defendant for the specified period. Arguing this by the fact that he was hired, he actually fulfilled his duties in full, but received wages only twice for the entire specified period.