An employment contract is an agreement between an employer and an employee, according to which the employer undertakes to provide the employee with work for a specified labor function, to provide working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations and by this agreement, to pay the employee wages on time and in full, and the employee undertakes to personally perform the labor function determined by this agreement in the interests, under the management and control of the employer, to comply with the internal labor regulations in force for this employer. The parties to the employment contract are the employer and the employee.
Commentary on Article 56 of the Labor Code of the Russian Federation
An employment contract is one of the main institutions of labor law. By concluding employment contracts, citizens realize the constitutional principle of freedom of labor (Article 37 of the Constitution of the Russian Federation), as well as the right to choose a profession, specialty, occupation, and place of work.
An employment contract is an agreement between an employer and an employee, i.e. free expression of the will of both parties.
An employment contract is the main legal form of attraction, distribution, consolidation and rational use of the country's labor resources <1>. An employment contract is a legal fact with which the law connects the emergence, change and termination of labor relations (see commentary to Article 16). An employment contract acts as a regulator of labor relations, since it contains not only the conditions defining the rights and obligations of the employee and the employer, but also other working conditions (for example, the regime of working hours and rest time, if for a particular employee it differs from the general rules in force employer).
——————————— <1> Gusov K.N., Tolkunova V.N. Labor law of Russia: Textbook. 2nd ed., revised. and additional M., 1997.
And finally, an employment contract is an important social guarantee for the protection of the employee’s working conditions.
In the 1990s. Significant changes were made to the Labor Code regarding the concept of an employment contract. For example, in Art. 15 of the Labor Code included such a concept as “contract”.
The commented article of the Labor Code significantly complements and specifies the provisions of the previously existing article. 15 Labor Code. First of all, this concerns the very concept of an employment contract: the legislator excluded the term “contract” from it. However, attention is drawn to the fact that these two terms - “agreement” and “contract” - are identical concepts. In the 1980s, when the concept of “contract” was widely used in scientific, educational and regulatory materials, it was not only a tribute to fashion, but also had practical significance: a contract was considered as a special type of employment contract concluded for a certain period, in in which a special place was occupied by additional conditions that sometimes infringed on the labor guarantees of workers (in particular, those who worked in private firms, joint ventures, etc.). By excluding the term “contract” from the Labor Code, the legislator, firstly, stopped more than 10 years of disputes about the differences between an employment agreement and a contract and, secondly, established the mandatory conclusion of an employment contract with all employees.
The commented article clearly states the obligations of a bilateral agreement between the employee and the employer. In particular, it is stated that the employer is obliged to provide the employee with work according to the specified labor function, i.e. provide the employee with exactly the work provided for in the employment contract. In addition, the employer is obliged to provide working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, an agreement, local regulations and this agreement (i.e., a concluded employment contract). Thus, the new edition of the commented article clarifies the list of sources that ensure working conditions (see commentary to Articles 5, 8, 40, 41, 45 and 46).
In addition, unlike Art. 15 of the Labor Code, which imposed on the employer the obligation to pay wages, the commented article imposes on the employer the obligation not only to pay wages, but also the obligation to do so in full and on time.
The definition of the concept of an employment contract includes the term “labor function”, which means work in a certain profession, specialty, qualification or in a certain position (see Article 15 of the Labor Code).
A profession is a type of work activity of an employee that requires special skills and relevant knowledge (for example, a builder, a doctor).
A specialty is a type of occupation within one profession. It depends on the nature of the skills, knowledge, and experience acquired by the employee. The specialty requires more specialized training and production skills in a particular area related to the worker’s profession (for example, doctor: therapist, surgeon, dentist, pediatrician; builder: mason, carpenter, plasterer, welder, etc.).
Qualification is the degree and type of professional training, i.e. the totality of necessary knowledge, abilities, skills, and production experience to perform certain types of work.
A position is an established range of responsibilities and rights, determined by the place and role of an employee in a particular organization or enterprise.
In accordance with the commented article, the employee undertakes to personally perform the labor function assigned to him; he cannot entrust other persons to perform it, or hire another employee to fulfill the obligations assumed under the employment contract. At the same time, the employee undertakes to comply with the internal labor regulations in force for this employer (i.e., comply with the established working hours, labor discipline, timely and accurately carry out the employer’s orders).
In law enforcement practice, the concepts of an employment contract (employment agreement) and civil law contracts are often substituted.
The concept of an employment contract formulated in the commented article allows us to highlight the main distinctive features of an employment contract from related civil law contracts.
Such civil law contracts as a work contract (Article 703 of the Civil Code), an agreement for the performance of research, development and technological work (Article 769 of the Civil Code), a contract for the provision of paid services (Article 779 of the Civil Code), an agency agreement ( Article 971 of the Civil Code), etc., are also related to the use of labor.
The main distinctive features of an employment contract:
— personal performance of a certain labor function in the general labor process of a given organization;
— performance of work is associated with compliance with internal labor regulations;
— the employer’s obligation to provide the employee with normal working conditions, organize his work, ensure labor protection, and pay the employee wages in a timely and full amount.
As for civil law contracts, they are concluded to perform specific work, the purpose of which is to obtain the final result of the work in time or volume. For example, under a contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and deliver the result to the customer, and the customer undertakes to accept the result of the work and pay for the work performed.
An employee who has entered into a civil contract is not obliged to obey the internal labor regulations of the customer (enterprise, organization). Thus, under a work contract, unless otherwise established by the contract, the contractor independently determines the methods of fulfilling the customer’s assignment (clause 3 of Article 703 of the Civil Code).
Under civil contracts, the contractor organizes the work independently, performs it at his own risk, providing himself with labor protection. Payment for work is made upon completion after acceptance of the final result in accordance with the price stipulated by the contract.
The difference between an employment contract and civil law contracts is primarily of practical importance. The conclusion of an employment contract is associated with the employee’s right to provide him with labor and social guarantees.
Since the employment contract is a bilateral agreement, one party to the employment contract is the employer, and the other is the employee (see Article 20 of the Labor Code and commentary thereto).
It should be noted that in the previous edition of the commented article, not only the “employer”, but also the “organization” acted as a party to the employment contract (this resulted from the requirement for the employee to comply with the internal labor regulations in force in the organization). Such confusion also occurred in other articles of the previous edition of the Labor Code. In the new edition of the Labor Code, the concept of “organization” has been replaced in almost all articles by the concept of “employer”, which, of course, removes the existing obstacles in the application of labor legislation in cases where the employer is not a legal entity.
Article 59. Fixed-term employment contract
A fixed-term employment contract is concluded:
for the duration of the performance of the duties of an absent employee, whose place of work is retained in accordance with labor legislation and other regulatory legal acts containing labor law norms, a collective agreement, agreements, local regulations, and an employment contract;
for the duration of temporary (up to two months) work;
to perform seasonal work, when, due to natural conditions, work can only be carried out during a certain period (season);
with persons sent to work abroad;
for carrying out work that goes beyond the normal activities of the employer (reconstruction, installation, commissioning and other work), as well as work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided;
with persons entering work in organizations created for a predetermined period or to perform a predetermined job;
with persons hired to perform obviously defined work in cases where its completion cannot be determined by a specific date;
to perform work directly related to practice, vocational training or additional professional education in the form of an internship;
in cases of election for a certain period to an elected body or to an elective position for paid work, as well as employment related to the direct support of the activities of members of elected bodies or officials in state authorities and local self-government bodies, in political parties and other public associations;
with persons sent by employment services to temporary work and public works;
with citizens sent to perform alternative civil service;
in other cases provided for by this Code or other federal laws.
By agreement of the parties, a fixed-term employment contract may be concluded:
with persons entering work for employers - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people (in the field of retail trade and consumer services - 20 people);
with age pensioners entering work, as well as with persons who, for health reasons, in accordance with a medical certificate issued in the manner established by federal laws and other regulatory legal acts of the Russian Federation, are allowed to work exclusively of a temporary nature;
with persons entering work in organizations located in the Far North and equivalent areas, if this is related to moving to the place of work;
to carry out urgent work to prevent disasters, accidents, accidents, epidemics, epizootics, as well as to eliminate the consequences of these and other emergency circumstances;
with persons elected through a competition to fill the relevant position, conducted in the manner established by labor legislation and other regulatory legal acts containing labor law norms;
with creative workers of the media, cinematography organizations, theaters, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance (exhibition) of works, in accordance with the lists of works, professions, positions of these workers, approved by the Government of the Russian Federation Federation, taking into account the opinion of the Russian Tripartite Commission for the Regulation of Social and Labor Relations;
with managers, deputy managers and chief accountants of organizations, regardless of their legal forms and forms of ownership;
with persons receiving full-time education;
with crew members of sea vessels, inland navigation vessels and mixed (river-sea) navigation vessels registered in the Russian International Register of Vessels;
with persons applying for part-time work;
in other cases provided for by this Code or other federal laws.
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