Transfer from a fixed-term employment contract to an open-ended one: when it becomes permanent, how to make it so, what are the nuances of an additional agreement on changing the term? YurExpert Online

Last modified: January 2021

A transfer from a fixed-term employment contract to an open-ended one is carried out without dismissing the employee and issuing a new contract. It is enough to conclude an additional agreement and sign an order for the transfer of the employee. In some situations, the contract becomes permanent automatically. Before completing the required papers, you should understand what a temporary contract is, whether it can be extended for an indefinite period, and in what order a citizen is transferred to a permanent basis.

How to transfer an employee from a temporary to a permanent contract?

The Labor Code (LC) of the Russian Federation provides for two main types of employment contracts:

Indefinite – valid from the moment a new employee is hired until his dismissal for any reason (own desire, layoff, etc.).
Urgent - concluded for a certain time and valid only during this period. Art. 58 of the Labor Code of the Russian Federation provides that the duration of such an agreement should be no more than 5 years, except in special cases separately provided for by law.

By default, it is considered that the contract between the employee and the employer is concluded for an indefinite period, unless a period is expressly specified in it. At the same time, the legislation allows that a fixed-term employment contract can become indefinite.

Compilation methods:

Expiration of the contract without dismissal of the employee.
Changing the terms of the employment contract regarding the term using an additional agreement.
Recognition of a fixed-term employment contract as indefinite in court.

The last option can be used when the employer has significantly violated the rights and interests of the employee, unreasonably forcing him to enter into an employment contract not on a permanent basis, but temporarily.

The point is that Art. 59 of the Labor Code of the Russian Federation provides for a number of cases when it is permissible to conclude such an agreement (seasonal work, replacing an absent employee who, by law, retains his job, etc.) - and in the event that none of them applies to the current situation, The employer’s actions can be challenged in court, recognizing a fixed-term contract as concluded for an indefinite period.

Important! The latter option is relatively rare, so in the future it will be options for transferring an employee without the participation of judicial authorities that will be considered.

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.

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:

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.
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.

Arbitrage practice

As judicial practice shows, the most controversial are dismissals during which management does not know how to renew the contract, and therefore it automatically changes its qualifications.

Thus, the appeal ruling of the St. Petersburg City Court states that due to the fact that the employee was transferred to another position and was not warned about the expiration of the contract for the main position, his dismissal is illegal.

Also, another of the most common cases considered in court is the initial conclusion of an agreement with a limited duration in order to reduce the amount of benefits and guarantees specified in the Labor Code of the Russian Federation, as evidenced by the decision of the Volodarsky District Court of Bryansk.

And another reason for challenging the agreement is banal violations of the norms of Article 59 of the Labor Code of the Russian Federation. In accordance with it, a fixed-term agreement must necessarily contain the validity of the formalization of this type of legal relationship (Decision of the Beloretsk City Court No. 2-1329/2017).

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Employment contract

Additional agreement on changing the term

In fact, an additional agreement in the case when the contract is extended due to the fact that the period has expired, but no one expresses a desire to terminate it, is a purely formal document.

However, it should be drawn up to avoid confusion in personnel documentation. If there is no agreement that changes the term of employment in the employer’s materials, the question may arise as to whether the employee was fired at all - or continued to work.

Reference. The rules for drawing up an additional agreement are not fixed in detail by law - the general rules regarding the form of an employment contract, established by Art. 67 Labor Code of the Russian Federation.

It is stipulated that this document must meet the following conditions:

Be in writing.
Be prepared in two copies, one for each party. Since one of the copies is given to the employee, he must put a mark on the second one indicating that he received his.

The document must contain the following information:

Name of the organization or name of the individual entrepreneur.
The name and position of the manager, by virtue of the law and the Charter, acting on behalf of the organization. If the employer is a citizen-entrepreneur, this clause is not required.
Full name of the employee whose fixed-term employment contract is being transformed into an open-ended one.
The position he holds in the company.
Details of a previously concluded employment contract (its date and number according to the internal document flow rules established at the enterprise).
The essence of the changes being made. The wording will be approximately as follows: “Due to the expiration of the validity period and due to the requirements of Art. 58 of the Labor Code of the Russian Federation, consider the employment contract No.... dated... concluded for an indefinite period.” The above version is indicative; the parties may use other wording.
Signatures of the parties. A copy given to the employee will also require a company seal.

An additional agreement, as a rule, is prepared by employees of the enterprise’s personnel service on the orders of its head.

The procedure for changing a fixed-term employment contract to an open-ended one: when and how to make the transfer?

Expert opinion

Polyakov Pyotr Borisovich

Lawyer with 6 years of experience. Specialization: civil law. More than 3 years of experience in drafting contracts.

This process does not require a complete termination of the relationship and its resumption, that is, it is carried out without dismissing the employee: you just need to conclude an additional agreement to the contract that already exists and is urgent, and then ceases to be so.

However, when the employer intends to extend the joint work for a specific, definite period, then it will actually be necessary to formalize a full dismissal and rehire, with the signing of a new contract for a certain period, since the law does not provide for the option of extending a fixed-term contract, the maximum duration of which may be 5 years (Article 58, 59, 275 of the Labor Code of the Russian Federation).

Dear readers! Our articles talk about typical ways to resolve legal issues, but each case is unique.

But under some circumstances, a transfer from a fixed-term employment contract to an open-ended or permanent one occurs as if automatically.

When does a fixed-term employment contract become permanent? After the expiration date of the fixed-term contract, if the employee has not approached the administration with proposals regarding his further cooperation, and the administration, for its part, has not made any counter-proposals, then from the day following the expiration date of the fixed-term contract, the contract of unlimited cooperation begins to operate (Part 4, Article 58 of the Labor Code of the Russian Federation).

If the employee himself decides to continue further cooperation, or if the employer wishes to use the services of a person after the expiration of the Employment Contract, then 3 days before the end of this term a written notification must be received from one of the parties.

In one or the other option, no additional entries are required to be made in the person’s work book if the position or nature of the work has not changed .

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.

On a note. Since January 2013, when the above-mentioned Federal Law “On Accounting” came into force, it is allowed to use forms developed at the enterprise itself as primary accounting documents, with the exception of specially specified cases (to which the order form No. T-1 does not apply ).

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.

Download a sample order to change the term of an employment contract

What is a fixed-term employment contract?

A fixed-term employment contract is a contract with an employer concluded for a certain period. According to Article 57 of the Labor Code of the Russian Federation, the maximum period is 5 years, the minimum is up to two months (seasonal activity).

The period of the agreement depends on the nature of the activity. It ceases to operate due to absolute, relative or conditional circumstances.

Example. The LLC company is hiring citizen E.L. Naumova. The future employee has age pensioner Guided by Part 2 of Art. 59 of the Labor Code of the Russian Federation, the company, with his voluntary expression of will, drew up a temporary employment contract.

Necessary documents when changing conditions by agreement of the parties

In the event that the employee and employer decide to convert the contract into an open-ended one without waiting for its expiration, an additional agreement will be required. How to do it and when does it take effect?

Preparation and preparation of papers

The law does not indicate who can initiate the transfer of fixed-term employment relationships to indefinite ones. This can be done either by the employee by submitting a corresponding application during the contract period, or by the employer by inviting the employee in writing to change the conditions.

Regardless of who proposes to do this, the procedure will be the same:

An additional agreement to the employment contract is being prepared.
The employer issues an order that approves the document signed by the parties.

The specific wording used by the parties in the document remains at the discretion of the parties: the legislation does not provide standard forms and forms for employment contracts. In practice, changing the deadline can be formalized using statements like:

“Consider the employment contract No.... dated... concluded for an indefinite period.”
“Exclude from the employment contract No.... dated... clause number...” (here is the clause of the original contract that stated the validity period).

The parties may use other wording if they wish. The main thing in this case is to clearly and unambiguously establish in the employment contract the conditions under which it ceases to be limited to a certain period of validity.

Important! As in the case of expiration, when concluding an additional agreement, an order from the employer will be required. It is compiled according to the same rules as described above.

We have also prepared material for you on how to transfer an employee from an open-ended contract to a fixed-term one. We also invite you to read about the specifics of changing an employment contract due to an employee’s transfer to another position, a change in salary or a change in the employee’s last name.

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.

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.
This is important to know: Additional agreement to the employment contract: sample 2021

: name - additional agreement No. on changing the TD (number, date), lower left - date, right in the same line - 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.

Regular order form

: at the top - the name of the enterprise, below in the center - the Order, the line below on the left - the number and date, on the right - 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.”

Situations that do not allow you to make a transfer

Despite the fact that in most cases a transfer to a permanent job from a temporary one is possible, there are a number of circumstances that do not allow this procedure:

The employee's work is seasonal.
The employee entered into a fixed-term contract with a company created for a certain period to achieve a specific goal.
Other cases depending on the situation at the enterprise.

If an employee’s duties can be changed or extended, for example, when an employee for whom temporary work was performed is dismissed, then a fixed-term document can be changed to an indefinite one.

In what cases is it signed?

According to the general procedure, employment agreements are signed for an indefinite period of validity. A temporary contract may be concluded if it is expressly permitted by law. The Labor Code also provides for situations in which this can be done by mutual will of the parties.

Let us list the unconditional grounds for signing a temporary agreement (Part 1 of Article 59 of the Labor Code of the Russian Federation):

the employee takes a temporary job in the place of another employee;
non-permanent activity (up to two months);
seasonal work;
the citizen is sent to another country;
a person is hired for a position related to temporary activities for the reconstruction of production;
the company was created for a certain period;
the result of work activity is tied to a specific date;
a citizen is accepted for an internship;
a person has been elected to an elected position;
the unemployed person is sent by the labor exchange to short-term or public work;
a citizen undergoes alternative civilian service.

It is important to know: What documents are required to conclude an employment contract

The Labor Code of the Russian Federation and federal legislation may establish other grounds.

By agreement of the participants, the document is signed in the following situations (Part 2 of Article 59 of the Labor Code of the Russian Federation):

the employer is a small business with up to 35 employees (in retail trade, consumer service organizations - up to 20);
the employee has received a pension due to age or disability, and therefore cannot work permanently;
a citizen moves to work in a company located in the northern regions;
the person is hired for work related to emergency situations;
the employee is hired for a position through a competition;
a citizen is accepted to perform creative activities;
The company hires a director, his deputy, and a chief accountant;
the employee is a full-time student;
a citizen is accepted into the crew of all types of ships;
the person gets a part-time job with the employer.

Important! It is allowed to hire citizens for temporary work to replace an employee signed under a fixed-term contract.