What taxes to pay under a fixed-term employment contract. General provisions of a fixed-term employment contract. Place and working conditions
So, according to article 295 of the Labor Code, employees who have concluded fixed-term employment contracts for a period of less than two months or perform seasonal work are granted leave in the amount of two working days for each month of work. Employees who have entered into fixed-term employment contracts for a period of less than two months or perform seasonal work are granted leave in the amount of two working days for each month of work (Art. 295 of the Labor Code of the Russian Federation). Please note: the right to use leave for the first year of work arises for an employee only after six months of his continuous work with one employer (Article 122 of the Labor Code of the Russian Federation). The amount of payment for an employee's vacation, drawn up under a fixed-term employment contract, depends on the size of his average salary.
State tax treaty: taxes and contributions in 2018
When an employment contract is concluded for no more than two months, this period is reduced to three calendar days (Article 292 of the Labor Code of the Russian Federation). A three-day period is also provided for employees performing seasonal work (Art.
296
Labor Code of the Russian Federation). If the head of the organization is dismissed early, he must notify the employer (founder) no later than a month before leaving (Article 280 of the Labor Code of the Russian Federation). You cannot terminate a fixed-term employment contract with a pregnant employee on the grounds that it has already expired.
The term of the employment contract is extended until the end of her pregnancy. In this case, a woman must submit a corresponding statement and a doctor's certificate confirming the state of pregnancy.
The employer can request such a certificate no more than once every three months (Article 261 of the Labor Code of the Russian Federation).
Fixed-term employment contract - not for everyone
Important
The clause in the contract with a non-individual entrepreneur that the citizen must pay personal income tax will not relieve the company from the duties of a tax agent. The corresponding condition is void. Use the regular personal income tax rate.
Attention
For payments in favor of citizens of the Russian Federation - tax residents, the tax is withheld at the rate of 13%. If the counterparty is a non-resident, the rate is much higher - 30% (p.
1 and 3 st. 224
Info
Tax Code of the Russian Federation). Recall that persons who are in Russia for at least 183 calendar days within 12 consecutive months (clause 2 of article 207 of the Tax Code of the Russian Federation) are recognized as residents for personal income tax. It is necessary to transfer personal income tax to the budget at the place of registration of the organization.
Withholding tax on the income of employees who have entered into a contract with a stand-alone unit, list by the location of the OP (clause 7 of article 226 of the Tax Code of the Russian Federation). The deadlines for payment of personal income tax on income under the GPA in 2018 are standard: no later than the day following the payment (cl.
6 tbsp. 226 of the Tax Code of the Russian Federation).
Civil contract in 2018: what taxes and contributions are charged
Lastov taught tourists to scuba dive six days a week from April 1 to September 30, 2010 inclusive. Let's calculate the amount of vacation pay for a seasonal worker. Lastov worked for six months in full, the duration of his vacation will be: 6 months.
x 2 days / month \u003d 12 days Accrued amount wages will amount to: 30,000 rubles / month. x 6 months \u003d 180,000 rubles. The number of working days will be: 26 in April + 24 in May + 25 in June + 27 in July + 26 in August + 26 in September \u003d 154 days.
Average daily earnings will be: 180,000 rubles. : 154 days. \u003d 1168.83 rubles / day The amount of vacation pay will be: 1168.83 rubles / day. x 12 days \u003d RUB 14,025.96
Termination rules In order for an employment contract not to be considered indefinite, the employer must notify the employee in writing about the expiration of its validity at least three calendar days prior to dismissal (Article 79 of the Labor Code of the Russian Federation).
Taxes and insurance premiums for state subsidiaries in 2018
Moscow region labor relations pensions 3 comments 1 expert participates Similar problems Related materials Viktoriya Kochetkova, expert HR manager Total experience of more than 10 years 1. I conduct personnel audits, put personnel records from scratch, develop Regulations, job descriptions and other local regulations.
2. I decide conflict situations, I can convince, find a compromise. 3. Excellent knowledge of the Labor Code of the Russian Federation and judicial practice... four…. 5 problems 10781 solution 1 investigation 6708 Appeal: July 11, 2011, 18:35.6 years ago Rating: 5 Decision Commentary Print Welcome back! Forgot your password? Join a community of conscientious, socially active people who know and are ready to defend their rights.
Rules for hiring under a fixed-term employment contract
Urgent special issue on salary reporting for the 1st quarter
- Requirements for 6-NDFL for the 1st quarter were changed
- What form of RSV to apply for the 1st quarter: new or old
- 4-FSS for the 1st quarter: updated requirements for the report
Download the special issue for free In some cases, in practice, it is profitable and justified to attract citizens to work on the basis of a GPC agreement. Not labor. But be careful when deciding to conclude a GPA. Make sure the relationship does not fall under the labor profile. What is the danger - you will learn from the section on contributions for compulsory social insurance (OSS).
Taxation of the GPC agreement in 2018 Tax on income paid under the GPA arises if the physicist involved is not an individual entrepreneur. Then the company acts as a tax agent for general principles.
Otherwise, the merchant pays taxes for himself.
We have given the template of payment for transferring the deduction to the budget above. Personal income tax deductions for contractors (performers) A resident of the Russian Federation involved in work under a civil law contract can be provided with the following personal income tax deductions. Standard deductions. For example, for children (for the first child in 2018 - in the amount of 1400 rubles). Only a deduction is possible only for those months during which the contract is valid. And you need to take into account all the income received by the physicist since the beginning of the year. If the agreement is valid for several months, and the remuneration is not paid monthly (for example, a lump sum after the expiration of the contract), then the procedure is as follows. Provide standard tax deductions for each month of the contract, including those months in which no remuneration was paid.
Fixed-term employment contract
In all documents, it is necessary to indicate not only the start date of work, but also the date or circumstance of its completion. The number of days should also be clearly stated probationary period.
If the contract is concluded for no more than 2 months, the probationary period is not established. If the work will last from 2 to 6 months, the employee's probation cannot exceed 2 weeks (Art. 70
Labor Code of the Russian Federation). You will learn all about the probationary period from the material "Probationary period when applying for a job (nuances)". Results Employment under a fixed-term employment contract is quite common.
So that no one can challenge the legality of the concluded fixed-term contract and re-qualify it for an indefinite one, it is important to take into account the norms of Art. 58, 59 of the Labor Code of the Russian Federation. It is also important in the urgent TD to stipulate the period of its validity and the reason for concluding this type of contract.
Contract with an individual: what taxes and contributions to pay in 2018
- the work for which the person is hired is temporary (up to two months) or seasonal;
- carrying out work outside the scope of normal activities, as well as urgent work;
- carrying out work related to the expansion of production, if it is known in advance that this work or this expansion is of a temporary nature (up to one year);
- performance of work directly related to internship and vocational training of an employee;
- if you hire someone to do a certain temporary job, the completion date of which is unknown;
- the person you are hiring is a full-time student, retired or part-time student;
- you hire a person to be a manager or chief accountant;
- the employee was elected through a competition to fill a position.
This can be temporary work, combination or seasonal work (for example, replacing a sick employee, a main employee, an employee on vacation, or work that is performed in certain period time). In case of non-compliance with the conditions listed in Art. 59 of the Labor Code of the Russian Federation, the contract will be considered indefinite. One of the reasons for the conclusion of an urgent TD is the limited period of its validity. It is this circumstance that gives the employer the opportunity to influence the employee.
After all, the employer, without explaining the reasons, may simply not renew the contract with the employee. But even in this case, the employer must notify the employee about the dismissal 3 days before the end of the urgent TD.
How to properly dismiss a conscript, read the articles: How to hire an employee under a fixed-term employment contract? For example, I want to hire a head teacher on a fixed-term employment contract to work at a school.
Dangerous moments Concluding fixed-term employment contracts instead of indefinite ones in order to evade providing employees with their rights and guarantees is expressly prohibited by Article 58 of the Labor Code. An employment contract concluded for a certain period in the absence of sufficient grounds established by the court is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation). If the court re-qualifies labor contracts into indefinite ones, then in addition to all the payments due to employees (reinstatement at work, payment for forced absenteeism, moral damage, etc.), you will have to pay a fine (Article 5.27 of the Code of Administrative Offenses of the Russian Federation). Its size for officials is 1,000–5,000 rubles, for legal entities - 30,000–50,000 rubles. Moreover, the court can suspend your activities for up to three months.
State tax treaty: taxes and contributions in 2018
Is it legal and how to do it correctly? Yes, we can accept it by urgent TD in the following cases:
- he gets a part-time job;
- he gets a job in the place of a temporarily absent employee, that is, until the moment he leaves vacation or from a hospital main employee.
When hiring a conscript, it is necessary to write an application and attach to it all the documents necessary for employment (passport, TIN, SNILS, educational documents, work book, certificates from past work, etc.). For more information on how to accept a fixed-term employment contract and the documents required for this, see the article "What documents are needed when applying for a job (2016)?"
The rules for hiring in this case are no different from hiring an employee under an open-ended contract (Art.
Fixed-term employment contract - not for everyone
Please note: it is the employer or the person authorized to do this in documents that must notify the employee. A temporary worker hired for the period of absence of the main one may not be notified, since the absent person may go to work even earlier than the expected date.
The conscript knows in advance that his employment contract expires when the main employee starts working. In addition to expiration, there are other reasons for terminating a fixed-term employment contract.
An employment contract can be terminated ahead of time by agreement of the parties (Article 78 of the Labor Code of the Russian Federation), at the initiative of the employer (Article 81 of the Labor Code of the Russian Federation) or an employee (Article 80 of the Labor Code of the Russian Federation). If the initiator of the termination is an employee, then, as a general rule, he must notify the employer in writing no later than two weeks before the dismissal (Art.
80 of the Labor Code of the Russian Federation).
Civil contract in 2018: what taxes and contributions are charged
Let's analyze each aspect in detail. When an accountant calculates contributions for MPI and OMI As in the case of salary payments, in relation to GPA, see the list of insured persons in special regulations... This is the Federal Law of December 15, 2001 No. 167-FZ "On Compulsory Pension Insurance in Russian Federation».
And Federal Law of 29.11.2010 No. 326-FZ "On compulsory health insurance in the Russian Federation." In particular, contributions for pensions and compulsory health insurance are charged if the contractor (performer):
- citizen of the Russian Federation;
- a foreigner temporarily or permanently residing in the Russian Federation.
Insurance premiums for pension and health insurance under GPC contracts in 2018 are charged at the regular rates that the company applies to payments to its full-time employees.
Taxes and insurance premiums for state subsidiaries in 2018
Attention
As a general rule, 22% of the remuneration goes to pension accruals, 5.1% to medical. At the same time, the rate of 22% in 2018 is applied for payments not exceeding (for each physicist on an accrual basis from the beginning of the year) 1,021,000 rubles.
Then a reduced rate of 10% is used. But medical contributions at a rate of 5.1% must be charged on the entire amount of remuneration, regardless of general level income. That is, there is no bar, no limit value for calculating the medical contribution.
Important
And, recall, the accrued amounts from 2017 are transferred not to the funds - the PFR and FFOMS, but to the IFTS. For 2018, this procedure is fully preserved.
When an accountant does not charge contributions for MPI and OMI If an individual entered into a GPC agreement with you in 2018 in the status of a businessman, then there is no need to charge contributions. The merchant pays the fees for himself in accordance with the established procedure.You are relieved of this obligation.
Rules for hiring under a fixed-term employment contract
The increase in the interest rate on insurance premiums since the new year forces employers to look for legal and not very ways to optimize social payments employees. One of the popular ways to reduce mandatory payments is a fixed-term employment contract instead of an indefinite one.
Is his glory justified? 02/25/2011 "Accounting.ru" Author: E. Irkhina, expert editor We must say right away that employees registered under a fixed-term employment contract have the right to the same social guarantees as "perpetual workers."
Only vacations are calculated a little differently. The only thing that "conscripts" are not entitled to is severance pay. At the same time, it is much easier to part with such employees.
A fixed-term employment contract is concluded for a maximum of five years. Unlike an indefinite one, this contract can not be concluded with every employee and not for every job.
Info
An urgent TD is concluded for a specific period, which must be specified in it. It cannot exceed 5 years. If the specified period of employment is longer than the maximum allowed, then the contract becomes indefinite, and the employee will be considered accepted on a permanent basis.
IMPORTANT! If, after the expiration of the urgent TD, none of the parties demanded its termination, and at the same time the employee has a desire to continue working in the company, the conditions stipulated in the urgent TD lose their force, and the employee is considered to be hired for an indefinite period. Who can be hired under a fixed-term employment contract? A complete list of persons and conditions that must be observed when hiring an employee under an urgent TD is given in Art.
Fixed-term employment contract
Another dangerous moment is the expiration of the employment contract. If a person continues to work and the employer does not require termination of the contract, then it is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation). Therefore, you need to carefully monitor the end of the term of employment contracts and draw up everything correctly. Let's calculate vacation pay A conscript employee has the same right to an annual paid vacation, as an employee, drawn up under an indefinite employment contract. On the basis of article 114 of the Labor Code, he is generally granted annual paid leave with the preservation of his place of work and wages. The duration of the leave of "indefinite" must not be less than 28 calendar days per year (Article 115 of the Labor Code of the Russian Federation). If a person is registered under a fixed-term employment contract, vacation pay is considered differently, the duration of his vacation directly depends on the number of days worked.
Contract with an individual: what taxes and contributions to pay in 2018
In this case, the competition must be held in the manner prescribed labor legislation and other regulatory legal acts containing labor law norms;
- other cases provided for by the Labor Code or other federal laws.
Small businesses, including individual entrepreneurs, can conclude fixed-term employment contracts if the number of their employees is generally no more than 35 people. For employers in the field retail and consumer services limit - 20 people. Note: for employees hired for temporary work for up to two months, a probationary period is not established (Article 289 of the Labor Code of the Russian Federation). The probationary period for seasonal workers should not exceed two weeks (Article 70 of the Labor Code of the Russian Federation). If the term of its validity is not specified in the employment contract, the contract is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).
Add to favoritesSend by mail Hiring workers under a fixed-term employment contract under some circumstances is the only right decision. How a fixed-term employment contract differs from a regular one and how to quickly and correctly hire a fixed-term employment contract, we will consider in our article. Features of employment under a fixed-term employment contract How to hire an employee under a fixed-term employment contract? Results Peculiarities of employment under a fixed-term employment contract A fixed-term employment contract, like a regular labor contract (TD) concluded between an employer and an employee, is the main document governing labor relations between the parties (Articles 56, 57 of the Labor Code of the Russian Federation). The main difference between these contracts is the term for which they are concluded. A simple TD is concluded for an indefinite period. That is, only the date of the employee's employment is known.
This is due to the fact that Article 59 of the Labor Code lists cases in which the employer has the right, and not the obligation, to conclude a fixed-term employment contract. He can exercise this right only by observing all the requirements of Article 58 of the Labor Code. You cannot conclude several fixed-term employment contracts in a row with the same employee to perform the same job function. In the event of establishing the fact of multiple conclusion with one employee of short-term fixed-term employment contracts for the performance of the same labor function, the court has the right to recognize the employment contract as open-ended (clause 14 of the Plenum resolution The Supreme Court RF dated March 17, 2004 No. 2). A fixed-term employment contract concluded by agreement of the parties can also be recognized as indefinite. This will happen if the court decides that employees were forced to enter into fixed-term employment contracts.
State tax treaty: taxes and contributions in 2018
Labor Code of the Russian Federation):
- A fixed-term employment contract is concluded.
How to accept an employee under a fixed-term employment contract and draw it up correctly, you will learn from the material "We draw up a fixed-term employment contract - a sample for 2016".
- An order is issued to hire an employee.
You will find the form and a sample of filling out the order in the article “ Unified form № T-1 - download the form and sample. "
- An entry is made in the work book.
- The employee's personal card is entered.
How to fill it out, you will learn from the material "The procedure for filling out a work book - sample-2017". For a sample and the rules for filling it out, see the article "Personal card of an employee of the T-2 form - download a sample". The main difference is that in the fixed-term contract it is necessary to stipulate the reason why it was not concluded as an indefinite one.
Fixed-term employment contract - not for everyone
A fixed-term contract is provided for by law for those cases when labor relations cannot be established for an indefinite period, taking into account the nature of the work ahead or the conditions for its implementation (Article 58 of the Labor Code of the Russian Federation). These conditions are defined in article 59 of the Labor Code. Here are the most suitable for everyone. Conditions for concluding The text of a fixed-term employment contract must indicate the reasons and circumstances giving the right to conclude this particular type of contract (Art.
57 of the Labor Code of the Russian Federation). The basis for concluding a fixed-term employment contract may be:
- absence of an employee for whom the place of work is retained.
Civil contract in 2018: what taxes and contributions are charged
- Nizhny Novgorod region.
- Novgorod region
- Novosibirsk region
- Omsk region
- Orenburg region
- Oryol region
- Penza region
- Perm region
- Primorsky Krai
- Pskov region
- Rostov region
- Ryazan region
- Samara region
- St. Petersburg
- Saratov region
- Sakha (Yakutia) rep.
- Sakhalin Region
- Sverdlovsk region.
- Sevastopol
- North Ossetia - Alania rep.
- Smolensk region
- Stavropol region
- Tambov region
- Tatarstan, rep.
- Tver region
- Tomsk region
- Tula region
- Tyva rep.
- Tyumen region
- Udmurt Republic
- Ulyanovsk region
- Khabarovsk region
- Khakassia rep.
- Khanty-Mansi Auth.
Taxes and insurance premiums for state subsidiaries in 2018
Colleague, get free access to new program "Simplified 24/7". 24/7 - means 24/7 accounting support 356 days a year. Keep records, form and submit reports, there will be questions, ask the operator! Try "Simplified 24/7" for free At the same time, the range of possible contracts for the performance of work (provision of services) is quite wide. Let's list some:
- contract (Art. 702 of the Civil Code of the Russian Federation);
- paid provision of services (Art.
779 of the Civil Code of the Russian Federation); - instructions (Article 971 of the Civil Code of the Russian Federation);
- commissions (Article 990 of the Civil Code of the Russian Federation);
- agency (Article 1005 of the Civil Code of the Russian Federation);
- transportation (article 784 of the Civil Code of the Russian Federation);
- transport expedition (article 801 of the Civil Code of the Russian Federation);
- storage (article 886 of the Civil Code of the Russian Federation).
The main essence of GPA with legal point point of view: relations between contractors are built purely on the norms of the Civil Code of the Russian Federation. The person is involved in one-time work. After the execution of the contract, the relationship ends.
Rules for hiring under a fixed-term employment contract
Important
Tax Code of the Russian Federation). And from the labor inspectors a fine for the company is 50,000-100,000 rubles. and the head - 10,000-20,000 rubles. If an individual entrepreneur, instead of a labor one, illegally concluded a GPA, the sanction against the entrepreneur in 2018 is 5,000-10,000 rubles. (Clause 4 of Article 5.27 of the Code of Administrative Offenses of the Russian Federation). To avoid claims and unnecessary questions from auditors, remember:
- you cannot write to the GPA instead of one-time tasks, the obligation to perform any work during the day (for example, to clean the office);
- it is impossible to indicate in the GPA the specialty or profession of a contractor physicist;
- it is dangerous to conclude a contract for a long time;
- it is risky to envisage the contractor's work schedule (correctly - only the stages of work delivery)
Social insurance contributions for injuries Insurance contributions to the FSS in case of injuries are charged only under a number of GPC contracts and only if it is expressly provided for by the agreement (cl.
1 tbsp.
Nizhny Novgorod Region, Novgorod Region, Novosibirsk Region, Omsk Region, Orenburg Region, Oryol Region, Penza Region, Perm Region, Primorsky Region, Pskov Region, Rostov Region, Ryazan Region, Samara Region, Saint Petersburg, Saratov Region, Sakha (Yakutia) Region, Sakhalin Region Sevastopol Region North Ossetia - Alania Republic of Smolensk Region Stavropol Territory Tambov Region Tatarstan, Republic of Tver Region Tomsk Region Tula Region Tyva Republic Tyumen Region Udmurt Republic Ulyanovsk Region Khabarovsk Territory Khakassia Republic of Khanty-Mansiysk env. - Yugra, Chelyabinsk Region, Chechen Republic, Chuvash Republic, Chukotka Aut. environs of the Yamalo-Nenets auth. environs of Yaroslavl region Do you want to become a project expert? If you are a lawyer, human rights defender, or simply are a qualified specialist in one of the areas of law, you can send us an application to join the team of Experts.
Fixed-term employment contract
To draw up a deduction from your side, you need:
- get everything required documents - be guided by the usual package, which is also needed in the case of staff members (clause 3 of article 218 of the Tax Code of the Russian Federation);
- determine the amount of the deduction (clause 1 of Art. 218 of the Tax Code of the Russian Federation) - for example, with a different number of children in a family, the child deduction will be different for different people.
Professional deduction. An employee can receive one upon application (clauses 2 and 3 of article 221 of the Tax Code of the Russian Federation). The deduction is provided (one of the two options is selected):
- in the amount of expenses actually incurred for the execution of the contract;
- in the amount of the standard given in the table in article 221 of the Tax Code of the Russian Federation.
Insurance premiums under GPC contracts in 2018 Pension and medical insurance in the case of a GPC contract for the performance of work and services is paid by the customer in accordance with the general procedure.
Contract with an individual: what taxes and contributions to pay in 2018
Attention
Federal law dated 24.07.98 No. 125-FZ). The types of agreements are as follows:
- to perform work;
- service;
- author's order agreement.
It is clear that by default the customer saves by not paying the “unfortunate” fees. But if you look in the long term, it may be profitable to insure your contractors (performers) in the FSS in 2018. That is, to include in the GPA the corresponding clause and pay contributions for injuries from all payments.
Here's the thing. In life, no one in itself is insured against industrial accidents. And if the injury occurs through your fault, you will have to reimburse the victim for the earnings lost due to disability (Article 1086 of the Civil Code of the Russian Federation). You will also need to pay additional expenses contractor related to the accident (p.
1 tbsp. 1085 of the Civil Code of the Russian Federation). And even compensate for moral damage at the request of the victim (paragraph 3 of Art.
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However, it is required to strictly follow the rules established by law, since the contract in question cannot be concluded solely at the request of the employer. The law sets limits, determining the grounds and cases when it is allowed to sign such an agreement with the employee on the initiative of the administration. Failure to comply with these labor law norms may entail negative consequences, mainly for the employer. But it is also important for hiring people to understand the urgent nature of their labor contract, as well as the guarantees that they were provided in connection with his conclusion. Therefore, knowledge of the features of regulation of the relations under consideration is a necessity for all their participants.
So they include:
Fixed-term employment contract is for a certain period, the duration of which cannot be more than five years, unless otherwise provided by law. There are no restrictions on the establishment of the minimum duration of such agreements by the legislator.
Extension of validity
The question deserves special attention about prolongation urgent labor agreement. When taking actions to extend the labor relations in question, it should be borne in mind that in a dispute situation in practice, the court often considers the fact of repeated conclusion and an increase in the duration of the contract when performing the same labor function as labor relations with indefinite periodas a result of which the relevant regulations apply legal regulation.
At the same time, the above rules do not always apply. So, for example, if an employee under a fixed-term contract is pregnant employee, then she is provided with some guarantees compared to others. She has the right to apply for an extension of the term of her employment contract until the end of pregnancy, periodically providing a medical certificate confirming it, and the employer cannot but satisfy this requirement / request.
The legislator did not determine the form of the employee's demand to terminate the contract due to the end of its term. Therefore, it can be a letter and a simple absence from work, which will not be absenteeism. Such absence from work cannot be regarded by the employer as absenteeism.
There are also peculiarities of legal regulation in terms of taxation of income of employees under a fixed-term contract. First of all, this applies to personal income tax. Of course, for all employees with legal entity in labor relations, the organization draws up standard documents (1-NDFL, 2-NDFL), they are included in total amount in determining average headcount... Calculation and payment of taxes is also carried out according to general rules.
Special attention should be paid to the question of the application of tax deductions to them, since problems may arise when hiring such an employee not from the beginning of the calendar year. For example, the tax base for an employee is reduced by the amount of standard tax deductions only for the period that he worked on a fixed-term basis. labor agreement... If there is confirmation of the receipt by him of income from another employer (for example, a 2-NDFL certificate), then deductions can be provided taking into account the amount of earned income.
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The legal regulation of issues related to this type of labor contracts reflects the influence of the state of the country's economy, as well as the desire of the legislator to maintain a balance, protecting the interests of both employers and their employees.
In the event that it is difficult to establish the period during which it is necessary to perform any labor function, employers resort to the mechanism of using a fixed-term employment contract.
It is beneficial for the employer to conclude contracts with new employees for a specific period instead of permanent contracts. This is due to the fact that knowing when the work of specific staff units ends, it is easier for the manager to plan the structure of positions and the salary fund.
In organizations that provide special conditions to permanent employees, and for temporary ones - providing only rights guaranteed by law, a fixed-term contract allows you to avoid additional spending on bonuses and other additional payments.
In addition, the employer can be sure that he will not have any special problems with the termination of cooperation with such employees, because they also make plans taking into account the upcoming dismissal and, being notified three days before the expiration of the contract, are already ready to leave the company.
Nevertheless, when drafting the Labor Code, the legislators took into account the likely tendency of employers to abuse fixed-term employment contracts and provided in Article 58 that, in the absence, in the court's opinion, of special grounds for choosing the temporary nature of the contract, it would be re-qualified as an indefinite one with the imposition of penalties on the employer.
With whom can you arrange temporary cooperation?
A detailed list of persons with whom it is lawful to conclude an agreement for a specific period is provided for in article 59 of the Labor Code. The foreseen cases can be divided into three categories, depending on the moment that determines the expiration date of the contract:
- “Deputies” - until a permanent employee leaves for work, whose duties were performed during the period of his long absence;
- "Conscripts" - until the end of certain work:
- obviously temporary;
- going beyond the normal activities of the organization;
- held abroad;
- public nature;
- in the form of an internship;
- as an alternative service, etc.
- "Seasoners" - until the completion of work related to natural and climatic features.
Also, by mutual agreement of the parties, it is possible to conclude contracts of a temporary nature with:
- those who go to work in small businesses;
- pensioners;
- “Deputies” elected by competition;
- managers and chief accountants;
- full-time students;
- part-time workers, etc.
But here it is important to remember that if such an employee decides to appeal against the urgent nature of his employment contract, and the court decides that on the part of the employee the decision on the temporary contract was not voluntary, then the employer will have to reinstate such an employee in his position on a permanent basis.
Contents of a fixed-term employment contract
The rules for drawing up a temporary employment contract are practically the same as for an open-ended employment contract, and indicate the mandatory presence in the text:
- information about the signatories - the name of the employer and the full name of the employee, their addresses;
- passport data of the employee or information about other documents proving his identity;
- TIN of the employing organization;
- place and date of signing the contract;
- place of work and position;
- official salary;
- working conditions;
- social guarantees;
- privacy issues, etc.
However, there are some peculiarities: unlike a contract for permanent cooperation, two more points must be stipulated in a temporary contract:
1) Its validity period, admissible in the form:
- a specific date - then this day will be considered the last day of the employee's work under this agreement;
- the moment an event occurs - for example, the signing of an act of completion of work or the exit to work of an employee who was replaced by a "conscript" - then the dismissal will be postponed until this event occurs.
2) Justification of the temporary type of contract, preferably including the wording of the category of employees from the list of Article 59 of the Labor Code of the Russian Federation and an explanation of the conditions and nature of work, demonstrating the preference for choosing a fixed-term contract.
If in a fixed-term employment contract there is no precise definition of the moment of its termination, then it can automatically be recognized as indefinite. And in the absence of justification for the temporary nature of the contract, the employer may face a penalty for evading the employee's rights provided for persons who conclude open-ended contracts.
What threatens for the unjustified conclusion of a fixed-term contract?
The temporary nature of the employment contract can be challenged in court. The court may decide to change the status of a contract to a permanent one when:
- the employer in the text of the contract did not indicate the exact term for its termination;
- with the employee for the same job duties fixed-term contracts are concluded several times in a row;
- the conditions were identified that allow one to assume that an employee is forced to conclude a temporary contract instead of an unlimited one;
- the employer has violated the three-day deadline for notification of the end of the contract.
In all these cases, the employee will be reinstated in the position in court and on a permanent basis. In addition, he will rely on the employer to pay for the period from the moment of the annulled dismissal to the restoration (as for forced absenteeism), compensation for moral damage, costs for the services of lawyers, etc.
An employer, in the event of a judicial change in the status of an employment contract, may be brought to administrative responsibility under Article 5.27 of the Code of Administrative Offenses of the Russian Federation in the form of:
- for organizations - a fine from 30 to 50 thousand rubles. or suspension of activities for up to 3 months;
- for officials - a fine from 1 to 5 thousand rubles, and in case of a repeated violation - disqualification from one to three years.
Probationary period for a fixed-term contract
To check the suitability of the candidate for the chosen position, his professionalism and competence, the employer has the right to establish a probationary period for the employee. If the employment contract does not say anything about such a period, then it is not provided for, and the employee immediately begins to work on a general basis. This is provided for by Article 70 of the Labor Code of the Russian Federation. However, if the probationary period is stipulated by the terms of the contract, then, according to general rules, it should not last more than three months.
The urgent nature of the employment contract makes its own adjustments to the envisaged length of the probationary period. When concluding a contract for the period:
- less than two months - a probationary period cannot be established;
- from two to six months - the test period cannot exceed two weeks;
- from six months to five years - on a general basis.
In addition, the law provides for a list of persons who cannot be subjected to a probationary period. For example, pregnant women, minors selected for a position by competition, etc. So the appointment of tests under a fixed-term employment contract is possible and legitimate, but subject to a number of the listed conditions.
What to write to a temporary worker in labor?
When concluding a fixed-term employment contract, according to the letter of Rostrud dated 06.04.2010 No. 937-6-1, his validity determined by the text of the contract itself and reflected in the employment record in work book is not subject to.
The fact is that the purpose of keeping a book is to calculate the time of work experience, and it is carried out according to the dates of employment and dismissal, without taking into account the urgency or indefinite term of the contracts concluded. Thus, the wording introduced into the labor one will be: "Admitted to the position ...", and phrases like "A fixed-term contract has been concluded ..." will be recognized as erroneous.
Leave under a fixed-term employment contract
The urgent nature of the contract does not affect the employee's entitlement to annual paid leave. However, the number of days possible for rest will directly depend on the duration of cooperation between the employer and the temporary worker.
- Less than two months - 2 working (not calendar!) Days for each month of work.
- From two months to five years - in the usual way, i.e. 2.33 calendar days per month or 28 calendar days per year.
In the event that at the time of the expiration of the contract or dismissal for another reason, the employee has the days of unpaid leave provided for by law, then he must be paid compensation in the amount of due vacation payments.
If an employee decides to take the days of legal rest immediately before dismissal and at the time of termination of the contract will be on official leave, then his last working day will be considered the last day of the vacation, and dismissal on the date specified in the contract will not be the basis for recognizing the contract as indefinite.
Should I pay for sick leave with a fixed-term contract?
The law provides for employees with whom fixed-term employment contracts are concluded, the provision of social guarantees on an equal basis with permanent employees. Sick leaveprovided by temporary employees must be paid in the prescribed amount and in due time.
The only limitation in force is due to the fact that the maximum sick days for workers with fixed-term contracts will be 75 days.
Is a temporary worker entitled to severance pay?
The availability of mandatory payments upon dismissal depends on the duration of the contract:
- Less than two months - no severance pay;
- From two months to five years - as when a permanent employee is fired: in the amount of two weeks' wages.
A similar amount is provided for in the event of dismissal associated with the termination of the employer's activities. The only difference is that seasonal employees should receive a notice of termination of a fixed-term contract due to the liquidation of the employer not in three days, as with other dismissal options, but in seven days (Article 296 of the Labor Code of the Russian Federation).
When deciding to conclude a fixed-term employment contract with an employee, the employer must remember that this type of contract often becomes the subject of legal disputes. In this case, the validity and legality of the temporary nature of the contract will have to be proved by the employer. In order not to receive penalties, it is better to choose an urgent version of the employment contract only in relation to the persons listed in Labor Code, and remember about the conditions provided by law for temporary workers.