There were no remarks during the checks. But an example: you will now conclude an agreement on 01/25/2017, the employee was hired on 07/20/2016, for example. So what??? And if his position changed, he was transferred or his salary changed ... What will you do? Will you do DS? I want to draw the attention of the moderator to this message, because: A notification is being sent ... Anyuta wrote the agreement without an application. absolutely correct!!! it is impossible in the DS “to spell out an employment contract in new edition". TD is compiled at the time of admission. but no one forbids revising its conditions. Or another option (in the organization where I work part-time) - there are simply no employment contracts. I conclude the TD on today's date, set the start date of work, the one with which the employee works.
Entry into force of the employment contract and entry to work
Note that the innovation affects enterprises and merchants:
- with the number of employees - no more than 15 people;
- with an annual volume of financial receipts - no more than 120 million rubles.
For personnel hired after January 1, 2017, the new contract format is mandatory. And for earlier accepted employees will have to adjust the contracts with them through additional.
agreements.
Attention
For more information, see "Local regulations since 2017: changes in the Labor Code of the Russian Federation”. We also note that the conclusion of employment contracts with state and municipal employees is regulated by special federal laws.
Therefore, the necessary conditions employment contract in 2018, they may have their own characteristics. The employment contract must comply with the requirements of Art.
Registration of an employment contract in a new edition
Let's talk about the mandatory conditions of the employment contract, since without them it is impossible to consider the formalization of relations between the employee and the employer as completed. Subscribe to the accounting channel in Yandex Zen!
- 1 Basis of working relationship
- 2 What's New
- 3 The composition of the mandatory terms of the employment contract
The basis of working relations The employment contract is included in the system of legal documentation of the enterprise, which streamlines the professional relations of the subjects - the subordinate and the employer.
The regulatory framework of the federal level (primarily the Labor Code of the Russian Federation) and internal documents the organization itself on the performance of a labor function by an employee on the basis of a contract form a single set of title documents.
Employment contract in the new edition how to draw up
The date of the employment contract and the date of commencement of work may not coincide. For example, the parties entered into an employment contract (signed it) on March 1, but the text indicates March 2 as the first day of going to work.
Labor legislation does not limit this time gap. Everything is decided at the discretion of the parties. Therefore, even at the interview stage, it is important to indicate to the employer the time when you can start working.
In this case, you can conclude an employment contract immediately after the employer has made a decision to hire a candidate for work. This agreement will ensure that workplace will be reserved for the successful candidate.
The employee will be able to start working on the day that the parties had previously agreed on, indicating it in the text of the employment contract itself.
Vote:
The date of execution of the contract will also be the current date, but the date the employee was hired (date of commencement of work) will be the actual date of his entry to work (according to the employment record in the work book). It is recommended to attach documents to the contract confirming labor Relations with an employee (copies of orders for admission, transfer, relocation, etc.) from the moment of employment until the day the employment contract is concluded.
Thus, you need to draw up employment contracts with employees on the current date with actual working conditions (i.e., valid on the current date), while the date of admission in the contract indicate the actual date the employee went to work.
Online journal for an accountant
Important
Consequently, with employees hired starting from October 6, 1992, employment contracts are concluded exclusively in writing. Requirements for the form of an employment contract are established by the Labor Code of the Russian Federation (Art.
57 Labor Code of the Russian Federation). At the same time, if a written employment contract was not concluded with an employee hired some time ago, then it must be drawn up now. Therefore, draw up a draft Employment Contract that meets the requirements of Art.
57 of the Labor Code of the Russian Federation. In the contract to be concluded, reflect the actual working conditions (wages, working hours, etc.) and guarantees provided to the employee, valid on the current date, and not on the date of employment.
Article 57 of the Labor Code of the Russian Federation. content of the employment contract
Date of conclusion of the employment contract The calendar day on which the employment contract is concluded must be indicated in its text. Usually this date is written at the very beginning of the text in the upper corner (in the right or left).
In the opposite corner, opposite the date, the place where the contract was drawn up (city) is also indicated. Date of entry into force The employment contract shall enter into force on the date of:
- when an employee is granted access to work. Moreover, admission to work must be carried out on behalf of the employer (if not by him, then by his representative) or with his knowledge;
- signed by both parties;
- specified in the federal law or other regulatory legal act;
- indicated in its text.
The entry into force of the employment contract for both parties means that from that moment on, the parties assume the agreed obligations and are responsible for their failure to fulfill them.
Employment contract in a new edition
Can an employer in such a situation count an employee's absenteeism with all the ensuing consequences?< … Отказ банка в проведении операции можно обжаловать Банк России разработал требования к заявлению, которое клиент банка (организация, ИП, физлицо) может направить в межведомственную комиссию в случае, когда банк отказывается проводить платеж или заключать договор банковского счета (вклада). < … Главная → Бухгалтерские консультации → Трудовой договор Обновление: 21 апреля 2017 г. Договорённости, к которым приходят работодатель и его работник относительно трудового сотрудничества, закрепляются в трудовом договоре. После оформления этого документа важно, когда трудовой договор вступает в силу. Ведь именно с этого момента этот документ обретает юридическую силу, соответственно, у сторон возникают взаимные обязательства.
All its conditions can be divided into 3 categories:
- without which it is impossible to do;
- additional terms;
- details and data of the parties (employer and employee).
The composition of the mandatory conditions of the employment contract In the introductory part of the document, general information about the employer and applicant (name of organization / individual entrepreneur, full name of the head and employee). Detailed contact information about the employer (in the form of TIN, location information, etc.) and passport data, information about the place of residence (registration) of the employee are indicated on the final page of the document.
Keep in mind: the mandatory terms of the employment contract in 2018 are included in the relevant section of the contract.
In practice, there are situations when such an additional the agreement in the main text contains only general terms and Conditions: “- the parties agreed to state the employment contract in the wording in accordance with the Appendix to this Add. agreement. - real add. Poll: Afraid to make a mistake? The consultation was provided on 02.02.2015. Is it possible to draw up the entire text of the new version of the employment contract in an additional agreement to the employment contract, and not just what is subject to change? Article 72 of the Labor Code of the Russian Federation Amending an employment contract by rewriting it does not contradict the current legislation. If necessary, during the period of validity of the employment contract, the parties may make agreed changes to it (Article 72 of the Labor Code of the Russian Federation). In this case, any terms of the employment contract can be changed.
Conclusion of an employment contract in a new edition date what
According to the current procedure, labor relations between an employee and an employer arise on the basis of an employment contract concluded in writing. Before entry into force Labor Code RF labor relations were regulated by the Labor Code of the Russian Federation.
Registration of labor relations in writing was not mandatory and was carried out only with the consent of the employee (Appendix 1 of the Recommendation approved by the Decree of the Ministry of Labor of Russia dated July 14, 1993 No. 135). On October 6, 1992, Article 18 of the Labor Code of the Russian Federation was amended, according to which the execution of the contract in writing became mandatory (para.
15 art. 1 of the Law of September 25, 1992 No. 3543-1). Expert shares important information on the conclusion of an employment contract in the material at the link.
After considering the issue, we came to the following conclusion:
The date of employment, in our opinion, in this case should be considered 06.10.2014. The same date is subject to reflection in column 2 of the section "Information about work" work book.
The obligation to pay for labor arises from the employer from the moment the employee begins to perform work according to the labor function stipulated by the employer, that is, from 06.10.2014.
1. Part three of Art. 66 of the Labor Code of the Russian Federation provides for the obligation of the employer to keep work books for each employee who has worked for him for more than 5 days, when the work is the main one. The work book contains information about the employee, work performed, transfers to another permanent job and on dismissal, as well as the grounds for termination of the employment contract and information on awards for success in work (part four of article 66 of the Labor Code of the Russian Federation).
The procedure for filling out work books is regulated by the Rules for maintaining and storing work books, preparing work book forms and providing employers with them, approved by Decree of the Government of the Russian Federation of 04.16. 10.10.2003 N 69 (hereinafter referred to as the Instruction).
According to clause 3.1 of the Instruction, when making an entry in the work book about hiring, in column 2, you must indicate the date of hiring. At the same time, neither the Instructions, nor the Rules, nor the Labor Code of the Russian Federation explains which date should be considered the date of employment.
In this regard, we note that the hiring process itself, in our opinion, is a certain sequence of actions that can be separated in time. This conclusion is also supported by the provisions of Art. 68 of the Labor Code of the Russian Federation, relating to the procedure for hiring actions performed by the parties to employment relations even before the conclusion of an employment contract * (1). At the same time, it seems clear that the final result of the recruitment procedure is the acquisition of the status of an employee by a person applying for a job. The employee, as follows from the second part of Art. 20 of the Labor Code of the Russian Federation, is individual entered into an employment relationship with the employer.
Thus, as the moment of completion of the procedure for hiring an employee, the moment of the emergence of labor relations between the employee and the employer should be considered. As explained by the Supreme Court of the Russian Federation in the ruling dated February 18, 2010 N 4-B09-54, the moment the labor relations arise between the parties to the employment contract is the moment the employee starts work. Neither the conclusion of an employment contract nor its entry into force in itself testify to the emergence of an employment relationship (see, for example, the definition of the Investigative Committee for Civil Affairs of the Moscow regional court dated February 3, 2011 in case No. 33-2315).
It is this date that should be indicated in column 2 of the "Information about work" section of the work book as the date of employment.
Note that it is not required to enter the specified date into the employment contract as the “date of employment”. In accordance with the second part of Art. 57 of the Labor Code of the Russian Federation, the “start date of work” must be indicated in the employment contract, although, as mentioned above, these dates coincide.
2. Note that only the days starting from 10/06/2014 are subject to payment, despite the fact that the employment contract was signed on 10/05/2014, since only from 10/06/2014 labor relations arose between the parties. In addition, wages are remuneration for labor (Article 129 of the Labor Code of the Russian Federation) and depend, in particular, on the quantity and quality of labor expended (Article 132 of the Labor Code of the Russian Federation). That is, wages are paid to the employee only for the time actually worked by him, in which the period before 10/06/2014, obviously, is not included.
Legal Consulting Service Expert GARANT
member of the Chamber of Tax Advisers Medved Svetlana
Response quality control:
Reviewer of the Legal Consulting Service GARANT
The material was prepared on the basis of an individual written consultation provided as part of the Legal Consulting service.
*(1) In some cases, under the provisions of art. 69 of the Labor Code of the Russian Federation, when concluding an employment contract, the employer must send the applicant for a mandatory preliminary medical checkup. At the same time, for some categories of workers, the law directly establishes the obligation to undergo a medical examination before concluding an employment contract (see, for example, Articles 266. 328. 330.3. 324 of the Labor Code of the Russian Federation). In other cases, the legislator only indicates the need for a medical examination “when concluding an employment contract” or “when applying for a job” (Article 69. 213. 348.3 of the Labor Code of the Russian Federation), without specifying when exactly such an examination should be carried out. However, in accordance with the position of the Supreme Court of the Russian Federation, a medical examination in this case must also be carried out before the conclusion of an employment contract (determination of November 14, 2007 N 83-Г07-7).
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Even if an employee is busy working with a PC for at least 50% of the working time, this in itself is not a reason to regularly send him for medical examinations. Everything is decided by the results of certification of his workplace according to working conditions.
June 20, 2016In this article, you will learn about the mandatory details of an employment contract, the most common mistakes employers make when drafting it, and how to correct these mistakes. Aida Ibragimova, head of the personnel department of the KSK group, tells.
As a theater begins with a hanger, so any company begins with the conclusion of employment contracts with employees. It would seem that everyone knows what an employment contract should be, and there should not be any problems in its preparation and conclusion. But in reality, everything is much more complicated.
As part of our practice, we work with various companies. We conduct HR audits both in small organizations (up to 6 employees) and in large firms(up to 930 employees). In accordance with the specifics of the activities of companies, their personnel composition is also diverse: office employees, remote workers, shift workers, etc. As part of personnel audit we check the content of labor agreements with employees and in each company we find errors in them. Moreover, there are often organizations in which labor contracts with employees are not concluded at all. Meanwhile, in accordance with Art. 5.27 of the Code of Administrative Offenses of the Russian Federation, an organization may be held liable for the absence of an employment contract concluded with an employee or for its improper execution in the form of a fine of up to 100,000 rubles.
In this article, we will consider the mandatory details of an employment contract, as well as the most common mistakes employers that are identified during the personnel audit, and methods for their correction.
In accordance with Art. 57 of the Labor Code of the Russian Federation, an employment contract must contain certain information, as well as a number of mandatory conditions. In addition, it may contain additional terms and conditions. Details of the employment contract are given in table 1.
Table 1. Employment contract details
|
Mandatory information |
Mandatory conditions |
Additional terms |
|---|---|---|
|
Surname, name, patronymic of the employee and the name of the employer who entered into an employment contract; Information about the documents proving the identity of the employee; TIN of the employer; 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 powers; Place and date of conclusion of the employment contract |
Place of work; Labor function; 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; Terms of remuneration; Working hours and rest time; Guarantees and compensation 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 the work; working conditions at the workplace; The mandatory condition social insurance employee; Other conditions in cases provided for by labor legislation and other regulatory legal acts |
Structural subdivision; The length of the probationary period; Obligation of the employee to non-disclosure of confidential information; The obligation of the employee after completing the training to work in the company for at least the period established by the contract, if the training was carried out at the expense of the employer; Types and conditions of additional employee insurance; Improving the social and living conditions of the employee and his family members; Rights and obligations of the employee and the employer; Additional non-state pension provision for an employee |
Despite the fact that all the details of the employment contract are listed in the Labor Code of the Russian Federation, employers make many mistakes when drafting it. Let's take a closer look at exactly what errors for each of the details we identified with our clients.
Usually, employers do not have problems with this part of the employment contract, but you can still find agreements that do not indicate the place of their conclusion, instead of the passport data of the employee, the address of his residence is indicated, there is no TIN of the organization or it is not spelled out on the basis of which document the representative of the employer has the right to conclude an employment contract with the employee.
If any of the mandatory information is missing in employment contracts with your employees, then they must be included in the agreement. To do this, in both copies of the employment contract (belonging to the employee and the employer), enter the missing information, certify this entry with the signatures of the parties to the employment contract and indicate the date the corresponding correction was made.
We also draw your attention to the fact that the employment contract must contain a note that the employee has received his copy (Article 67 of the Labor Code of the Russian Federation), this also applies to all additional agreements concluded with the employee. The absence of an employee's signature confirming receipt of his copy is one of the most common mistakes. If there are no marks in the employment contracts and additional agreements with your employees that the employee received his copies, then ask him to write a phrase about receiving a copy and sign or sign in the appropriate column, if such a column is provided for in the form of the employment contract and additional agreement.
Most mistakes are made by employers in this part of the employment contract, so we will consider in detail how to correctly indicate each of the mandatory conditions in the employment contract.
1. Place of work.
Since the Labor Code of the Russian Federation does not disclose the content of the concept of “place of work” and does not indicate how to correctly write down this condition in an employment contract, in practice, organizations either do not indicate the place of work at all, or indicate it incorrectly.
Recommendations on how to indicate the place of work in an employment contract can be found in the Review of the Practice of Considering by Courts of Cases Related to the Exercise by Citizens labor activity in the regions of the Far North and equivalent areas, approved by the Presidium of the Supreme Court of the Russian Federation on February 26, 2014. The review states that in theory labor law the place of work is understood as a specific organization located in a certain locality (settlement), its representative office, branch, other separate structural subdivision.
From this definition it can be concluded that the name of the employer and its location (name of the settlement) in all cases is a mandatory characteristic of the place of work.
Place of work can be specified in two ways:
- the name of the employing organization and the locality where the company is located. For example, “Employee’s place of work: Stroy Group LLC, Moscow”, and if the employee is accepted into a separate structural unit: “Employee’s place of work: Stroy Group LLC, Saratov branch, Saratov”;
- the name of the employing organization and the exact address of the place of work. For example, “Employee’s place of work: Stroy Group LLC, Moscow, st. Lenina, d. 55, office 15”, and if the employee is accepted into a separate structural unit: “Employee’s place of work: Stroy Group LLC, Saratov branch, located at the address: Saratov, st. Novaya, d. 55.
The second option is inconvenient in that in the event of a change in the address of the location within the same locality, it is necessary to conclude with all employees additional agreements to employment contracts.
2. Labor function of the employee.
Very often, employers in an employment contract indicate only the name of the position. In accordance with Part 2 of Art. 57 of the Labor Code of the Russian Federation, when indicating the labor function, it is necessary to specify, among other things, the specific type of work assigned to the employee. Thus, it is not enough to indicate only the title of the position.
The labor function of an employee can be specified in three ways:
- indicate in the employment contract only the type of work assigned. For example, an employee is hired as a sales manager to find and attract new customers, promote the company's services;
- list the duties of the employee in the employment contract;
- make a link to the job description. If the organization has approved job descriptions, then labor function it is possible not to prescribe in the employment contract, but it is necessary to make a reference to this manual, indicating that the employee's labor duties are determined by the job description.
3. 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 Art. 57 of the Labor Code of the Russian Federation, two conditions must be indicated in a fixed-term employment contract: 1) the circumstances (reasons) that served as the basis for concluding such an agreement in accordance with the Labor Code of the Russian Federation or another federal law, and 2) its duration.
A common mistake is the lack of reasons for concluding such an agreement in a fixed-term employment contract. The reasons for concluding a fixed-term employment contract must be indicated in accordance with Art. 59 of the Labor Code of the Russian Federation or other federal law.
For example, when concluding a fixed-term employment contract with CEO the basis for setting the term will be the following: “The employment contract is concluded for a certain period by agreement of the parties in accordance with the Charter of the Company on the basis of part 2 of article 59 of the Labor Code Russian Federation as with the head of the organization.
4. Terms of remuneration.
When specifying this condition in the employment contract, employers make the following mistakes:
- the size of the official salary is missing and reference is made to staffing. This is a violation, since in accordance with Part 2 of Art. 57 of the Labor Code of the Russian Federation, the salary is a prerequisite of the employment contract, therefore it is necessary to indicate the salary in the employment contract itself, and not make a reference to the staffing table;
- payment date not specified wages which is a violation of Art. 136 of the Labor Code of the Russian Federation, which states that the dates for the payment of wages are prescribed, including in the employment contract. The letter of Rostrud dated June 20, 2014 No. PG / 6310-6-1 also states that Art. 136 of the Labor Code of the Russian Federation is imperative and obliges to establish the days of payment of wages in the rules of the internal work schedule, a collective agreement and an employment contract - that is, in all these documents;
- the procedure for paying wages is not prescribed, namely, the specific amounts of payments that the employee will receive with each payment of wages. This condition may not be indicated in the employment contract if it is contained in local acts, for example, in the internal labor regulations or the regulation on remuneration;
- the method of payment of wages is not specified. In accordance with Art. 136 of the Labor Code of the Russian Federation, wages are paid to the employee, as a rule, at the place of work or transferred to the credit institution specified in the employee's application, on the terms determined by the collective agreement or labor contract. That is, if the organization does not have collective agreement, in which the method of payment of wages is prescribed, then this condition must be indicated in the employment contract.
5. Mode of working time and rest time
If in an organization the working hours for all employees are the same, then the employment contract may not prescribe working time and rest time, and make a reference to the local act - the rules of the internal labor schedule.
It is necessary to pay attention to this condition in contracts with employees for whom an individual work schedule is established. For example, in practice there are employment contracts with part-time workers for whom a full-time job is set. This is due to the fact that companies use the same employment contract template for all employees and forget to make corrections to the right paragraph when concluding a contract with a part-time job. Meanwhile, such "forgetfulness" is a violation of Art. 284 of the Labor Code of the Russian Federation and may lead to claims from the inspection authorities.
6. Conditions determining, where necessary, the nature of the work
Very often, employers do not indicate this condition in the employment contract, although most companies have drivers or couriers on their staff. For employees whose work involves constant traveling, the employment contract must indicate the traveling nature of the work.
7. Condition on compulsory social insurance of an employee.
In order to avoid claims from the inspection authorities, it is necessary to check whether this condition is indicated in the employment contract. If the employment contract does not contain a clause on employee insurance, then even though the company actually transfers contributions to all necessary funds, the employer may be fined for the absence of this clause in the agreement.
This condition can be specified in the employment contract as follows: “The employee is subject to all types of compulsory social insurance in connection with labor activity. Types and conditions of compulsory social insurance of an employee in connection with labor activity are carried out by the Employer in accordance with the legislation of the Russian Federation.
8. Working conditions at the workplace and guarantees and compensations for work with harmful and (or) dangerous working conditions
Both of these conditions are related to each other, and the second condition follows from the first. It is rare to find an employment contract in which these points are correctly spelled out. This is due to the fact that they are indicated in the employment contract based on the results special evaluation work places. If the organization did not conduct a special assessment, the employer cannot know the real working conditions and, as a result, cannot prescribe working conditions and guarantees, compensation in the employment contract.
Thus, first you need to conduct a special assessment of jobs, then you need to enter the results of the special assessment into the employment contract, indicating the working conditions at the workplace, and if the employee is found to have harmful and (or) dangerous working conditions, write down guarantees and compensations in the contract.
Guarantees and compensations that are due to the employee for work in harmful and (or) hazardous conditions labor, depend on the class and subclass of harmfulness, namely:
- when class 3.1 is established, the employee is provided with a bonus to official salary in the amount of at least 4%;
- when class 3.2 is established, the employee is provided with the specified allowance plus additional leave at least 7 calendar days;
- when class 3.3, 3.4 or 4 is established, the employee is provided with an allowance, additional leave, and also set reduced working hours (no more than 36 hours per week) without reducing wages.
We also draw your attention to the fact that employees who, based on the results of a special assessment of working conditions, are harmful conditions labor, the employer issues free of charge flushing and (or) neutralizing agents (Article 212 and Article 221 of the Labor Code of the Russian Federation). In accordance with paragraph 9 of Appendix No. 2 to the Order of the Ministry of Health and Social Development of Russia dated December 17, 2010 No. 1122n, the norms for issuing flushing agents should be established in the employment contract.
9. Other conditions in cases provided for by labor legislation and other regulatory legal acts
The above list of prerequisites is not exhaustive. So, when hiring a part-time job, the employment contract must indicate that the work is a part-time job (Article 282 of the Labor Code of the Russian Federation). The establishment of an irregular working day for an employee should also be reflected in the employment contract (part 2 of article 57 of the Labor Code of the Russian Federation, article 100, article 101 of the Labor Code of the Russian Federation). If an employee is hired for home-based, remote, seasonal work, for work on a rotational basis or in the regions of the Far North or equivalent areas, etc., then this should also be indicated in the employment contract. If necessary, other conditions are indicated in the employment contract.
If any of the mandatory conditions are missing in the employment contracts with your employees or they are indicated inappropriately, then it is necessary to conclude additional agreements with the employees and amend the relevant clauses of the employment contracts.
Additional terms of the employment contract
When prescribing additional conditions in an employment contract, it must be remembered that they must comply with the law.
Here are some examples of additional terms of an employment contract from our practice that contradict the current labor legislation:
- establishing a probationary period for an employee for more than three months, in the case when the employee does not belong to the category of employees who, in accordance with Art. 70 of the Labor Code of the Russian Federation can be installed probation longer duration;
- imposition on the employee of the obligation to compensate for damage in the amount of the cost of unfulfilled work, the costs associated with the organization of these works, as well as penalties to third parties. In accordance with Art. 238 of the Labor Code of the Russian Federation, the employer cannot recover lost income (lost profits) from the employee, that is, the employer cannot demand compensation material damage if he suffered losses or received less profit due to non-fulfillment or improper fulfillment by the employee of his official duties;
- imposition of fines on employees. Scroll disciplinary actions established by Art. 192 of the Labor Code and is exhaustive, fines are not indicated in this article, therefore, the establishment of any type of fine in an employment contract is unlawful and may result in a fine for the employer from the inspection authorities;
- establishing a ban on part-time work. In accordance with Art. 60.1 of the Labor Code of the Russian Federation, an employee has the right to conclude employment contracts on the performance of other regular paid work for another employer in his free time from his main job, and the company does not have the right to prohibit employees from entering into employment contracts in combination.
If there are additional conditions in employment contracts with your employees that are contrary to the law, then you must exclude them from the employment contract by concluding an additional agreement.
In this article, we examined the mandatory and additional details of an employment contract and gave examples from our practice. Summing up, I would like to note that, of course, many errors in employment contracts arise due to the complexity of interpreting and applying the norms. labor law, but there are a lot of those mistakes that are made by employers through inattention. It is also necessary to take into account that if you establish additional guarantees for an employee in an employment contract, then they must actually be provided to the employee. For example, if the employment contract states that the employer draws up a voluntary medical insurance policy for the employee or pays a monthly premium in a certain amount, then the employer must comply with such terms of the contract, since they are fixed in the contract and, therefore, are the responsibility of the employer. Any employment contract template that you use must be checked by you for compliance with the requirements of labor legislation, the specifics of your company and the position for which the employee is being hired. Only this approach will help to avoid unnecessary errors in personnel records.
The duration of the employment contract is required condition, which should be contained in the text of the contract between the employee and the employer. It determines how long the employment relationship will last. The contract can be concluded on a permanent basis, that is, be indefinite, or it can be signed for a certain period of time.
How long can an employment contract be?
The term of the employment contract may be as follows:
- Indefinite - it means that the labor contract does not set a deadline for a person’s work, that is, he can work as long as he likes.
- - the date or event is indicated in the employment contract, after the occurrence of which, it is terminated.
If the contract specifies only the date of commencement of work, then by default it is considered unlimited. If it is concluded as without legal grounds, then it may be recognized as a prisoner for an indefinite period.
A fixed-term employment contract can be concluded for any period of time, the legislation limits only the maximum period.
If, after the occurrence of an event or date that limits the term of the employment relationship, none of the parties demanded its termination, the employment contract is automatically extended and becomes permanent.
Minimum
The minimum period of time for which an employment contract can be concluded is not specified in the legislation, therefore it is determined based on the requirements and specifics of the work, as well as the decision of the employer.
That is, you can conclude an employment contract even for a few days. Moreover, you can not hire an employee without a conclusion written contract even for one day.
Contracts concluded for up to two months are called short-term and the labor relations that they regulate have a number of nuances compared to other labor contracts, including.
Read also: How to terminate an employment contract: grounds and nuances of their application
Maximum
Article 58 of the Labor Code of the Russian Federation establishes a general one for which a temporary employment contract can be concluded. It is five years old. There is also a clause here that for the application of a longer period in the employment contract there must be separate grounds established by law.
A striking example is the employment contract with the head. says that in founding documents of the enterprise, the period of validity of the powers of the elected head may be indicated, and a temporary employment contract is concluded for this period. That is, it can be, for example, six years old.
On the other hand, if a person is fixed-term contract, for a period exceeding five years, without legal grounds, he may be recognized as a prisoner for an indefinite period.
Grounds for concluding an employment contract for a fixed period
All grounds, under which it is possible to conclude a fixed-term employment contract with a newly hired employee, are listed in article 59 of the Labor Code of the Russian Federation. In it they are divided into two groups:
- Grounds under which a temporary employment contract is concluded without the consent of the employee.
- Grounds under which a fixed-term employment contract is concluded by agreement of the parties. But in practice, it looks like this: the manager informs the candidate that the contract will be temporary, and he either agrees or the contract is not signed with him.
If an open-ended employment contract is signed with an employee and in the course of work there are grounds for retraining him into a temporary one, then this can be done only if both parties agree. For example, in the case when a permanent employee reaches retirement age, the manager, at his own request, cannot make him temporary.
Documents for registration
The list of documents that an employer may require from an employee when hiring, that is, when signing an agreement, is given in article 65 of the Labor Code of the Russian Federation. It includes:
- Identity card, passport or other document permitted by law.
- Employment record, if available. If it is lost or a person is employed for the first time, it is drawn up by the employer in the process of hiring.
- Certificate of pension registration (SNILS). In the absence of it, it must be issued by the employer.
- Military ID, only for categories of citizens related to military service.
- Diploma, in the case when the work for which the employee is accepted requires the presence of certain knowledge.
- Other documents confirming the person's right to hold a position (for example, a driver's license), if necessary.
- Documents confirming that a person is not prohibited from holding a position (for example, a certificate of no criminal record), if necessary.
What to put - the start date of the sick leave closes or means something else in this document? This is a very important nuance - the column “Start date of work” is filled in only if the employment contract, which was signed before the sick leave, is subsequently canceled. Let's consider what exactly this can be due to.
What is indicated in the line "Date of commencement of work" in the sick leave
In the line under consideration of the disability certificate, the date of commencement of execution by the employee who provided the sick leave is fixed, job duties in accordance with an employment contract previously signed, but canceled by the time the temporary disability bulletin was presented to the employer.
How can such a legal relationship arise when a person receives the right to sick leave with an annulled employment contract?
To answer this question, let's look at examples.
Example 1
Stepanov V.S. On 02/01/2019, he concluded an agreement with the employer Salyut LLC, according to which he must start work from 03/01/2019.
It so happened that Stepanov fell ill on February 25, 2019 and, therefore, could not go to work on March 1. In this case, the employer has the right to cancel the employment contract in accordance with Art. 61 of the Labor Code of the Russian Federation.
However, under the same Art. 61 of the Labor Code of the Russian Federation, the employee does not lose the right to receive hospital benefits from the moment the contract is signed, despite the fact that it is canceled.
Example 2
Antonov A.S., a friend of Stepanov V.S., got a job at Salyut LLC with him. They signed employment contracts at the same time, they also had to go to work together.
It so happened that Antonov also fell ill after signing the contract, but recovered quickly enough - by 03/10/2019. But, since Stepanov could not go to work, Antonov also decided not to start working at Salyut LLC.
Antonov, even in such a scenario, has the right to issue a sick leave for a period of incapacity for work, despite the fact that his contract was canceled of his own free will.
Calculation of sick leave when filling out the column "Date of commencement of work": nuances
Thus, in the event of the occurrence of the legal relations indicated in the examples above, the date 03/01/2019 is entered in the column "Date of commencement of work" in the sick leave.
Let us now study how the sick leave is calculated when the contract is canceled.
The temporary disability benefit for the employee is calculated if the column “Start date of work” in the sick leave is filled in, in the same way as if the benefit was accrued to an employee actually working in the staff of Salut LLC (in the conditions of the example). However, the payment of temporary disability benefits is made to the employee from the day on which, in accordance with the signed contract, he was supposed to start work.
Limitation on the duration of sick leave with a canceled contract
The duration of paid sick leave upon cancellation of the contract has a limit of 75 days (clause 4, article 6 of the law "On Compulsory Social Insurance" dated December 29, 2006 No. 255-FZ). But if the cause of the onset of temporary disability is tuberculosis, then this restriction does not apply.
For comparison: if sick leave is issued staff member, then its duration, at which the allowance is paid, can be (clause 11 of the order of the Ministry of Health and Social Development of the Russian Federation of June 29, 2011 No. 624n):
- 15 days if a certificate of incapacity for work is issued by the attending physician, as a rule, with a common disease, for example, acute respiratory infections;
- 10 months, if sick leave (several sick leaves in a row) draws up medical commission, subject to a favorable labor and clinical prognosis.
In this case, with tuberculosis, the duration of the sick leave can be 12 months.
Results
The column "Date of return to work" in the sick leave is filled in only if by the time the employee leaves the sick leave, his contract with the employer has been canceled, for example, due to failure to appear this person to work due to illness. If the corresponding column in the sick leave is filled in, then the employer pays the person in the general case up to 75 days of sick leave. The benefit is calculated in the usual way from the date on which the employee was supposed to start work.
You can learn more about the features of sick leave in the framework of various legal relations in the articles: