How to convert a fixed-term employment contract into an open-ended one

From the article you will learn:

In labor legislation, a distinction is made between fixed-term and unlimited-term employment contracts. The difference is that the former is valid for a certain period of time, while the latter is valid on an ongoing basis. But sometimes there is a need to transfer a specific employee from an open-ended employment contract to a fixed-term one. But managers don't know how to do it right. The Labor Code of the Russian Federation does not stipulate a direct prohibition on such actions, but the procedure for carrying them out is also not given.

Temporary employee

The hiring of a hired specialist for a specific place of work in a company usually occurs by agreement with its management and in accordance with the requirements of the Labor Code of the Russian Federation. An enterprise that hires a person to fill a vacant position fixes its legal relationship with him by concluding an employment contract. But sometimes the company also enters into a temporary work contract. As a rule, in the event that the employment relationship cannot be established for an indefinite period of time. Or it's not practical.

A temporary employment agreement occurs, in particular, in the following cases:

• for the period when the main worker ceases to perform his duties for a good reason;
• Internship;
• the work of the company up to a certain point;
• for the period of service of the employee in other countries;
• for a certain period specified in the contract;
• seasonal and similar work, etc.

For more information about this, see “When a fixed-term employment contract is concluded.”

The nuances of transferring to a fixed-term employment relationship

Previously , it was believed that it was impossible to change the duration of an employment contract, even by agreement of the parties. But Rostrud, in its Letter No. 4413-6, refuted this opinion, explaining that any terms of the labor agreement can be changed. The main thing is that all actions take place by agreement between the parties. But despite this, the transfer from open-ended to fixed-term relationships is ambiguous. Judicial practice in such cases is extensive and controversial. But, since such disputes arise and the courts take up their consideration, the issue is not hopeless.

Correct drafting of an additional agreement

The parties must agree among themselves. But before offering an employee a transfer to a fixed-term employment agreement, the employer must take into account several nuances:

• The Labor Code of the Russian Federation allows the conclusion of a fixed-term contract. That is, the circumstances prescribed in Art. 59 Labor Code of the Russian Federation;
• the employee expresses his consent and does not give it under pressure or threats;
• the term of the fixed-term agreement must end before the 5-year period from the date of employment expires.

The additional agreement is drawn up in simple written form. It must contain the following information:

• date and place of detention;
• details of the open-ended employment contract to which it is directly related;
• new conditions and old ones to which changes are made. It is enough to indicate the clauses of the previous agreement that will be changed after signing the additional agreement;
• the date from which the document acquires its legal force;
• signatures of both signatories, as well as transcripts.

Download the supplementary agreement form to the employment contract

The legal entity seals the agreement with its seal. If the employer is an individual entrepreneur, his signature will be sufficient. In the Russian Federation, individual entrepreneurs have the right to carry out their activities without a seal or stamp.

Key condition

The main provision of an employment contract for a specific period is considered to be the period for concluding such a temporary agreement. The Labor Code of the Russian Federation does not clearly regulate what exactly the wording should be. After all, each will have its own term and its own legal basis. For example:

• for the period of temporary/urgent/seasonal work;
• during parental leave.

Another type of wording is specific dates from acceptance to dismissal. But in some cases there is a need to extend cooperation. Then an additional agreement is drawn up.

Also see “What should be the mandatory terms of an employment contract in 2017.”

Transformation of cooperation due to expiration of TD time

The easiest option to transfer an employee to a new employment option is to simply wait until the term of the employment relationship specified in the contract expires. Here the parties must be guided by the norms of Art. 58 Labor Code of the Russian Federation. It provides that in the case when the period has expired, but neither party wanted to terminate the contract, it is considered extended, but indefinitely.

To do this you need the following:

1. During the period before expiration, neither the employee nor the employer must contact the other party to the employment relationship in writing and express a desire to terminate the employment contract.
2. After the validity period has expired, the employee must return to work - at least once. The moment he reappears at the workplace on the first day after the end of the contract, the employment relationship automatically turns into an open-ended one, and the previous conditions regarding the term lose legal force and are no longer taken into account.

Formally, the Labor Code of the Russian Federation in this case does not require the execution of any additional documents. However, in practice it is recommended to write:

• An additional agreement to the employment contract, fixing its unlimited duration.
• An order or instruction on behalf of the employer that approves this document.

Transformation of the agreement

Typically, a temporary contract with an employee is entered into by mutual consent of both parties. At the same time, the employee can take the initiative and write an application that will help transfer him to a permanent basis.

According to labor law, if a contract for a specific period is not terminated on time, a fixed-term employment contract becomes an open-ended one . In this case, the enterprise simply further legitimizes labor relations by issuing an order and additional information. agreements. The employee, in turn, gets acquainted with them and confirms with his signature. Thus, the contract becomes unlimited.

Also see “Transferring an open-ended employment contract to a fixed-term one: instructions.”

In what cases can a fixed-term employment contract become indefinite?

An agreement that specifies its validity period can easily become indefinite if the following circumstances exist:

• the agreement has expired, but the parties have not terminated their relationship;
• the validity period was established without legislative grounds, which can easily be proven in court;
• it was established that the organization, by concluding a fixed-term agreement, thus evaded compliance with the rights and guarantees of the worker.

It is necessary to conclude a new contract with the employee, which will no longer indicate the duration of its validity.

Trial period

When hiring a new employee to the company, the employer can establish a trial period. But with regard to the temporary contract, there are nuances that are given in Article 70 of the Labor Code of the Russian Federation. So:

• if a person is taken for a period of up to 2 months, the test cannot be administered;
• For a contract of 6 months, the maximum trial period is 2 weeks.

Also see “Employment contract: trial period”.

Required condition

Preparation, approval and the final stage of certification by the signatures of the employee and the employer of the reached labor agreement, the content of which includes a condition on the term, takes place according to the rules of the Labor Code of the Russian Federation (Section III).
Unfortunately,
practically does not regulate
the transfer to a fixed-term employment contract Moreover, in most cases such a transfer is not beneficial to the employee. Article 57 of this Code lists the mandatory requirements for the content of an employment contract. These also include an indication of the term of its imprisonment (if there is one) or indefiniteness. In case of failure to comply with this requirement, the legislation provides for administrative liability for officials guilty of incorrect maintenance of labor documentation. When conducting an inspection, the labor inspectorate, the prosecutor's office, and other supervisory authorities may impose penalties on the head of the organization (IP) if they discover cases of omission to the terms of the urgency or indefiniteness of the contract.

The absence of a provision in an employment contract regarding a term or indefinite period entails administrative liability for officials who committed such a violation of labor legislation.

It should be remembered: violation of the rule on the duration of an employment contract leads to its recognition in the future as indefinite, with all the ensuing consequences for the employer. Such an agreement can be terminated only in the manner prescribed by the Labor Code of the Russian Federation. This position is recorded in paragraphs 14 and 15 of the Resolution of the Plenum of the RF Armed Forces dated March 17, 2004 No. 2.

Deadline

When terminating a contract with an employee for a certain period, the company must be on alert. Otherwise, an automatic transfer from a fixed-term employment contract to an open-ended one .

The grounds for termination of a temporary contract should be considered (Article 79 of the Labor Code of the Russian Federation):

• completion of certain works that were specified in the contract;
• the arrival of a specific contract expiration date;
• completion of official duties in connection with the employee’s return to his position.

The employer must notify the subordinate of the end of the fixed-term contract period at least 3 days in advance, if he is employed for a period of no more than 2 months.

But the termination of the work of an employee hired to replace the main specialist occurs simply when the latter leaves. Moreover, an absent person who is assigned a particular position is not obliged to notify management that he will begin to perform his official duties. In practice, it is advisable for the employer to agree on this point with the returning specialist.

The main differences between a fixed-term employment contract and an open-ended one:

1. a deadline has been set;
2. restrictions on part of the trial period;
3. procedure for terminating a fixed-term contract.

Waiting for the expiration date of the employment contract

Can a fixed-term employment contract become permanent? Although, in accordance with Part 4 of Article 58 of the Labor Code of the Russian Federation, changing a fixed-term employment contract to an open-ended or permanent one can be implemented automatically, however, it is still necessary to bring personnel documents into compliance. But it is more correct when all these papers are prepared in advance, on the eve of the expiration date of the contract.

What documents are required?

So, if the term of your contract with your employer is coming to an end, and you are increasingly asking the question: “How can a fixed-term employment contract be converted into an open-ended one?”, then it’s time to start preparing a number of documents. However, first you need to inquire about the willingness of your superiors to accept you on a permanent basis .

We receive an agreement

An additional agreement to change the term of the employment contract and its conditions is a document that is absolutely necessary (after all, the working conditions will be different), and it must be drawn up 3 days before the final date specified in the fixed-term contract. This is based on the logic that, in accordance with Article 79 of the Labor Code of the Russian Federation, in the event of separation, the administration must prepare and deliver to the employee a written notice of its decision exactly 3 days before the expiration of the contract period.

Preparation of additional The agreement is handled by a lawyer, with the participation of a personnel inspector or a person charged with performing these duties.

There are some nuances when compiling this paper:

• it must be stipulated that the initial period is not extended (the law does not provide for this, except when a temporary worker becomes pregnant), but rather changes;
• if a person at the same enterprise holds a different position (Article 72.2 of the Labor Code of the Russian Federation), which is the reason for changing the term of the contract, then this circumstance must necessarily be reflected in the additional. agreement.

Sample additional agreement on changing a fixed-term employment contract into an open-ended one:

When drawing up this paper, use the usual form : name - additional agreement No. on changing the TD (number, date), below on the left - the date, on the right in the same line - the name of the locality. So-and-so, referred to as “the parties,” have entered into this agreement as follows:

In connection with the transfer of an employee from position such and such to such and such and a change in the validity period of the TD on the basis of Articles 72, 72.2 of the Labor Code of the Russian Federation, the parties agreed to amend certain provisions of the fixed-term contract No.. from such and such date, concluded in the meantime -this and that, setting them out in the following wording:

• point such and such (an employee is hired for a position such and such with a salary such and such);
• clause such and such (this TD is unlimited from such and such a date).

The remaining clauses of the main TD remain in force. This is followed by the details and signatures of the parties. Below you can see examples of writing an additional agreement in 2 copies:

However, if you want to transfer an employee to another department or assign him other job responsibilities, then you need a completely different form of an additional agreement to the employment contract for a change in position. You may also be interested in the article “Changing passport data in an employment contract,” which contains useful information for cases when an employee for some reason changed his last name.

Order

Such an order is drawn up on the basis of an employee’s application to continue working at the enterprise on a permanent basis, that is, under a contract whose duration is not defined. The date in the application must be indicated 3 days before the expiration of the fixed-term contract, and the request to continue cooperation on an ongoing basis - from the date following the end of the TD. The application would not have been required if the terms of the TD had not changed.

The order form is normal : at the top is the name of the enterprise, below in the center is the Order, a line below on the left is the number and date, on the right is the name of the locality. Place the essence of the order in a short column on the left: Concerns changing the conditions of TD No. ... with employee XXXX, and then the wording contains instructions:

- based on application XXXX fixed-term agreement No.... dated.... treat it as indefinite;

• HR officer and lawyer draw up an additional agreement to the Employment Agreement;
• accounting department, personnel officer to make changes to the documentation.

The order is signed by the first person of the enterprise; visas must be issued by the head of the safety and health department (if there is one), and in his absence - by the chief accountant, lawyer and the person responsible for personnel work. Making changes does not mean making entries in the work book, no, this applies to other official documents - personal cards, accounting papers.

If you are interested in converting the document back, then read the article “Transferring an employment contract from an open-ended to a fixed-term one.”

Let's sum it up

Thus, the employer has the right to extend the temporary contract for an indefinite period. Notice should be sent to the employee. After receiving consent, an additional agreement or order is signed. If the relationship cannot be extended for objective reasons, the citizen can be transferred to another vacant position.

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Even relationships with a limited duration can change during the course of work. After all, the initial amount of work for which the employee was hired may increase. Or the employee, whom the worker was hired to replace, may quit.

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In this regard, the question arises about the continuation of a fixed-term agreement, as well as the transformation of cooperation into an indefinite one.

Employer's order

After the additional agreement is signed, it is approved by order of the manager.

This is necessary because, by virtue of Art. 68 of the Labor Code of the Russian Federation, registration of labor relations with an employee is carried out using an order.

If the conditions of the relationship change significantly, a document of equal legal force is required to record this fact - that is, an order. A similar conclusion can be drawn from Art. 9 Federal Law “On Accounting”. Previously, orders of this kind had to be issued in form No. T-1, approved by Resolution of the State Statistics Committee of the Russian Federation No. 1 of 2004.

Therefore, in order to approve an additional agreement to an employment contract, you can use not only this form, but also your own form developed and approved by the employer. The order must contain:

• Name of the organization.
• Document number and date.
• Full name of the employee, his position and structural unit.
• The conditions under which his work takes place from this moment on.
• Position and name of the manager.

The order must be communicated to the employee against signature , so the corresponding column should be included in the form. But since it is an internal document, there is no stamp on it.

Differences between types of documents

Permanent and limited duration agreements have many parallels. For example, a similar list of benefits and guarantees, including vacations and sick pay, not to mention payment for overtime work and compensation for hazardous working conditions.

At the same time, the worker must still obey the internal labor regulations and comply with the norms of local regulations, not to mention the orders of management.

And, nevertheless, these types of documents still differ from each other and not only in the main feature, which is contained in the validity period, but also in other aspects.

Thus, it is possible to conclude a permanent contract at almost any enterprise, regardless of its specifics. But a fixed-term contract must meet the requirements of the law enshrined in Article 59 of the Labor Code of the Russian Federation.

That is, a contract with a limited duration can be issued:

• to perform a certain amount of work, for example, project development;
• to replace a temporarily absent employee who may be on maternity leave or sick leave;
• for seasonal work, such as harvesting;
• to perform a certain range of duties in a company that was initially created only on a temporary basis - for example, supporting the construction work of a bridge;
• for the duration of an internship or practical training.

Also, a fixed-term agreement can be concluded with persons sent to companies by the labor exchange on a temporary basis, or with citizens who undergo alternative service instead of standard military service for a year.

That is, in order to hire a worker specifically on the terms of a fixed-term contract, it is necessary to prove the impossibility of employment on a permanent basis by indicating the reason in the contract.

This is not required for permanent employees.

This measure is provided by law in order to protect workers from unscrupulous employers who, by concluding a fixed-term contract, are trying to evade a number of guarantees established by the Labor Code of the Russian Federation.

Thus, it is quite difficult to fire an employee employed on a permanent basis, especially if he belongs to a preferential category. But with a contract with a limited duration, you can terminate the contract even with a pregnant woman, regardless of her situation.

It is worth noting that in order to protect the rights of ordinary employees, the law provides for another protective measure.

In particular, Article 58 of the Labor Code of the Russian Federation states that concluding an agreement with a limited duration without sufficient grounds is prohibited.

Accordingly, if during an inspection or upon a complaint from the same employee it is determined that his duties are of a permanent nature, the contract will automatically be recognized as unlimited-term with all the circumstances arising from these legal relations.

Payment of compensation upon termination of a fixed-term employment contract

Under a fixed-term employment contract, the employer does not pay compensation if it terminates the contract and reduces staff or numbers. But with any dismissal, the employee has the right to compensation for unused vacation, and the employment contract itself or the collective agreement may provide for special compensation. These include, in particular, “golden parachutes”, which are paid to top managers.

The amount of compensation is calculated depending on the length of work. Employees who have entered into an employment contract for a period of up to two months are paid compensation upon dismissal at the rate of 2 working days per month of work. Compensation for unused vacation on a general basis should be calculated at 2.33 calendar days per month.

Guarantees for compensation payments apply to both main employees and part-time workers. But often workers performing work under a fixed-term employment contract do not have the same guarantees as those who work under an open-ended contract; workers who have entered into fixed-term employment contracts have the same rights as other employees, not only regarding the regulation of working hours and rest, wages and other legal issues, but also on “everyday” issues, for example, the provision of employer transport, food, showers, libraries, locker rooms, rest rooms, kindergartens, etc.

However, a fixed-term employment contract worsens the employee’s position by not providing him with the same guarantees as a contract concluded for an indefinite period.

Algorithm for calculating compensation:

1 step. Determination of the amount of compensation.

It is necessary to determine the amount of compensation based on the provisions of local acts, for example, a collective agreement or regulations on wages, as well as on the basis of an employment contract with the employee.

Step 2. Calculation and payment of compensation.

Compensation is calculated based on all the above documents and information about unused vacation.

Step 3. Providing a payslip.

The payslip is required because it contains information about the accruals due to the employee. The payslip must contain the following information:

– on the components of the employee’s salary for the relevant period;

– about the amounts of other accrued amounts. These include, in particular, monetary compensation for the employer’s violation of the established deadline for payment of wages, vacation pay, dismissal payments, and (or) others;

– about the amounts and grounds for deductions made;

– about the total amount of money to be paid.

The use of a pay slip form not approved by the employer is a violation of labor laws and may result in administrative liability.

Normative base

Of course, most workers are interested in permanent employment. However, in some cases, many agree to cooperate for a limited period of time.

Thus, within the framework of Article 59 of the Labor Code of the Russian Federation, by agreement of the parties, a fixed-term agreement can be concluded:

• with an individual entrepreneur, provided that the total staff does not exceed 20 people and the small company is engaged in the field of trade or consumer services;
• pensioners, if they are not confident in their strengths and state of health and initially set a time frame for future cooperation;
• in the northern regions, if you plan to move for the duration of the contract or on a rotational basis;
• to participate in work to prevent or eliminate emergency situations;
• in the field of creativity to participate in a specific project, for example, filming a film;
• with general directors of LLCs and chief accountants, who are hired based on the decision of the founders.

For all of the above cases of employment on a temporary basis, the parties are free to determine the period of cooperation themselves, but taking into account the norms of Article 58 of the Labor Code of the Russian Federation, according to which the maximum term of the contract should not exceed 5 years.