Article 61 of the Labor Code of the Russian Federation with comments

Article 61 of the Labor Code of the Russian Federation defines the procedure and timing for the entry into force of an employment contract.

In general, the date of entry into force of any contract, including an employment contract, is considered to be the date of its signing by the counterparties.
Exceptions are cases when there is a condition for the delayed entry into force of the agreement or when the terms for the entry into force of the agreement are expressly established by law. Art. itself 61, as well as the entire Labor Code in general, do not in any way determine the time frame for signing the TD by each of the counterparties. Labor Code of the Russian Federation
dated December 30, 2001 N 197-FZ

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Accordingly, the conclusion suggests itself that the signing of the TD by the employee and the employer can be at different times and quite distant in time. Thus, the employer (his representative) can add his signature to the TD no later than one month after the TD was signed by the employee. Naturally, the question arises whether it will be legal for an employee to go to work on the day specified in the employment contract, provided that the employer has not signed the contract.

From a legal point of view, a contract that is not signed by both parties is illegal. From a practical point of view, workers everywhere start working under employment contracts that are not signed by the employer until inspections. At the same time, orders for hiring are issued, employees are included in the time sheet, their wages are calculated, etc. That is, to a certain extent, within the framework of labor law we have a kind of neo-justice, in which orders and accounting statements actually replace a properly executed contract.

If the agreement was not signed by both parties before the date specified in it, two scenarios are possible:

the employee begins the actual performance of labor duties with the knowledge of the employer or his representative. Within three days from the moment the employee begins to perform duties, the employment contract must be signed by the employer;
the employee and the employer agree on a new start date and include it in the employment contract or completely refuse to indicate the start date. In this situation, after the actual start of work, the algorithm of actions of the employee and employer will be similar to the above.

When should an employee start work?

Parts 2 and 3 art. 61 of the Labor Code of the Russian Federation establishes the rules for determining the beginning of the practical performance by an employee of the duties assigned to him by the employment contract that has entered into force.

In accordance with these rules, the employee is obliged to begin performing his job duties from the day specified in the employment contract (Part 2 of Art.

61 Labor Code of the Russian Federation). Consequently, the day on which the employee is obliged to begin performing his job duties must be established by the employment contract.

Based on the concluded employment contract, the employer issues an order (instruction) on hiring. The employee is considered hired from the date specified in the order, which must correspond to the start date of work provided for in the employment contract.

If the parties to the employment contract, when concluding it, do not stipulate the start date of work, a mandatory norm is applied - the employee must begin work on the next working day after the employment contract enters into force (Part 2 of Article 61 of the Labor Code of the Russian Federation).

The procedure for the entry into force of an employment contract

2 and 3 tbsp. The Labor Code of the Russian Federation clearly regulates the procedure for the entry into force of an employment contract. If the employee does not begin to fulfill his duties prescribed in the employment contract, then the contract loses its force.

The contract specifies the date of its entry into force. If one is not specified, then the employee must begin work the very next day after signing the employment contract. Along with the employment contract, the manager must also issue an order for the employee’s employment. The dates in the order and the contract must match, and this date will be considered the official start date.

If an employee enters a position that needs to be approved, then the order states the date when the manager approved the employee in this position.

In what cases can an employment contract be canceled?

Expert opinion

Kuzmin Ivan Timofeevich

Legal consultant with 6 years of experience. Specializes in the field of civil law. Member of the Bar Association.

The Labor Code of the Russian Federation establishes a rule providing for the cancellation of an employment contract in the event that the employee does not start work on the day he starts work (Part 4 of Article 61 of the Labor Code of the Russian Federation).

If the employee does not start work on the start day of work established in accordance with Part 2 or 3 of Art.

61 of the Labor Code of the Russian Federation, the employer has the right to cancel the employment contract. A canceled employment contract is considered unconcluded.

Cancellation of an employment contract practically means that such a contract is recognized as non-existent and does not entail legal consequences for the parties from the date of its conclusion.

However, the cancellation of an employment contract does not deprive the employee of the right to receive benefits under compulsory social insurance in the event of an insured event during the period from the date of conclusion of the employment contract until the day of its cancellation.

The phrase “did not start work” implies not only the absence of the employee at the workplace during working hours. An employee may be at work, but not begin to perform his or her job duties.

In addition, the current version of Part 4 of Art.

61 of the Labor Code of the Russian Federation does not link the possibility of canceling an employment contract with the reasons (good or bad) for which the employee did not start work on the day he started work. It should be noted that in the situation under consideration, cancellation of the employment contract is the right, but not the obligation of the employer, who, taking into account the specific circumstances of the case, can leave the employment contract in force.

The fact of an employee’s failure to fulfill his labor duties on the day he starts work can be certified by drawing up an appropriate act. On the basis of this act, it is possible to issue an order (instruction) of the employer, canceling a previously issued order on hiring the relevant employee.

The entry into force of the employment contract may not coincide with the date of signing the document. From this moment on, legal consequences arise for the employee and the employer. The employee has the obligation to start work and comply with the requirements of the company’s local regulations, and the employer has the obligation to pay wages, provide leave, pay for a medical examination, and transfer pension contributions.

Therefore, it is important to establish from what date the employment contract begins to operate.

Date of signing the employment contract

So, labor relations arise on the basis of an employment contract. In other words, if there is no employment contract, there are no labor relations. An employment contract is always concluded in writing and is always signed on the one hand by the employee and on the other by a representative of the employer. The first date that we have is the date of signing the employment contract. For contractual documents, this will also be the date of conclusion of the contract.

Familiarization of the employee, against signature, with the employment order within three days from the date of actual start of work, and not from the date of written execution of the employment contract (Part 2 of Article 68 of the Labor Code of the Russian Federation).

Although even here there will be exceptions directly provided for by law. Thus, labor relations can arise from the moment the employee is actually admitted to work with the knowledge or on behalf of the employer or his representative. In this exceptional situation, the employment contract must be drawn up in writing and signed by the parties no later than three working days from the moment the employee is actually admitted to work (Part 2 of Article 67 of the Labor Code of the Russian Federation; hereinafter referred to as the Labor Code of the Russian Federation).

At the time of signing the agreement

As a general rule, an employment contract comes into force on the date it is signed by the parties to the relationship. This option is most often used.

Important! From the moment the contract is concluded, the employee has the right to receive compulsory social insurance benefits.

The law or agreement of the parties may stipulate the date of entry into force of the contract. When an employee is actually allowed to work without signing a contract, special rules apply.

Example 1. I. A. Zhdanov was hired by an LLC company. The parties signed the agreement on January 6, 2020. The law and the agreement of the parties do not establish the terms for the entry into force of the contract. Therefore, it came into force on 01/06/2020.

Within the time limits established by law

Regulations may stipulate that a contract comes into force on a specific date. That is, there is a time gap between the moment of signing and the beginning of the agreement.

Thus, Article 327.3 of the Labor Code of the Russian Federation stipulates that an agreement concluded with a foreigner begins to be valid from the day the work permit is issued. According to Decree of the Government of the Russian Federation dated October 28, 2009 No. 848, the labor agreement signed between a military personnel and a defense organization comes into force from the date of his exclusion from the personnel of a military unit.

Example 2. By order of a military unit, P. E. Varlamov was sent to work in a non-military position in an LLC company working to ensure the defense of the country. The employment contract with him was concluded on 01/09/2020. P. E. Varlamov was excluded from the list of the military unit on January 11, 2020. Therefore, the contract came into force on that date.

From the date of actual admission to work

There are cases when a citizen is allowed to work, but a contract with him has not yet been signed. Part 2 of Article 67 of the Labor Code of the Russian Federation establishes that the agreement is recognized as concluded from the date when the employee began working with the knowledge or on behalf of the employer.

Expert opinion

Kuzmin Ivan Timofeevich

Legal consultant with 6 years of experience. Specializes in the field of civil law. Member of the Bar Association.

Within three days, the employment relationship must be documented. It is recommended that the contract text indicate the actual start date of work.

Example 4. I. A. Panov passed the interview and was hired. He began performing his duties on January 10, 2020. The HR department did not prepare the employment contract in a timely manner. In fact, it was signed on January 12, 2020. The text of the contract indicated that it came into force on January 10, 2020, since I. A. Panov was allowed to work from that moment.

Conditions

The employment contract must contain the following clauses:

last name, first name, patronymic of the employee;
name of the employer's organization , its legal address and Taxpayer Identification Number;
the employee’s passport details or details of an identity document;
job description;
terms of payment;
working hours and rest schedule;
conditions and terms of vacation , sick leave or maternity leave;
system of fines, if any;
date and place of conclusion of this agreement;

The absence of one or more clauses is not a reason to consider the employment contract invalid or serve as a basis for its termination.

If necessary, the missing information is entered into the contract directly or in the form of a written annex and from that moment on is a direct part of the document.

Rights and responsibilities of an employee

After the contract begins, the employee has the rights and obligations provided for by the agreement and labor legislation.

obtain an equipped workplace;
enjoy vacation;
count on wages;
require a certain amount of work in accordance with the job description.

He can also apply for social benefits if an insured event occurs within the framework of social insurance.

The duties of the employee are as follows:

performance of labor functions in accordance with the contract and job description;
compliance with the collective agreement and local regulations of the company.

Something to remember! From the moment the contract is signed, the citizen must familiarize himself with the collective agreement, internal regulations and other local acts against receipt.

When is a contract cancelled?

It happens that an employee does not come to work within the timeframe agreed upon by the parties. In accordance with Part 4 of Article 61 of the Labor Code of the Russian Federation, the employer has the right to cancel the agreement. In this situation, the contract is considered not concluded.

Example 6. An employment contract dated 01/05/2020 was concluded between the LLC company and citizen I.K. Danilov. In accordance with the terms of the agreement, the employee was supposed to return to work on January 6, 2020. However, on that day he was absent from work. The parties signed an agreement to cancel the employment contract, in which they indicated that the contract was recognized as not concluded, and the employee and employer had no mutual claims.

Thus, it is important to reflect in the employment contract the moment of its entry into force and the date of commencement of work. These conditions are significant and entail the emergence of rights and obligations for participants in labor relations.

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An employment contract comes into force on the day it is signed by the employee and the employer, unless otherwise established by this Code, other federal laws, other regulatory legal acts of the Russian Federation or the employment contract, or from the day the employee is actually admitted to work with the knowledge or on behalf of the employer or his authorized representative.

The employee is obliged to begin performing his job duties on the date specified in the employment contract.

If the employment contract does not specify the start date of work, the employee must begin work on the next working day after the contract enters into force.

If the employee does not start work on the start day of work established in accordance with part two or three of this article, then the employer has the right to cancel the employment contract. A canceled employment contract is considered unconcluded.

Cancellation of an employment contract does not deprive the employee of the right to receive benefits for compulsory social insurance in the event of an insured event during the period from the date of conclusion of the employment contract until the day of its cancellation.

Entry into force

First of all, let’s define what the wording “comes into force” means. This is the point in time from which the document begins to be legally valid, and all obligations, requirements and conditions specified in it become binding.

As we noted above, officials have identified several options for timing. These include dates:

Signing the document. In this case, the TD will enter into force on the day of its conclusion. A corresponding entry is made in the text of the contract. For example: an employment contract comes into force from the date of its signing.
Enshrined in federal laws or other regulations. For example, in accordance with certain regulations, some specialists are required to be approved for positions. So, the contract is concluded on one day, and begins on the day of issuing the corresponding order approving the employee in a new position.
When the employee started or was allowed to work. This option is relevant if the contract was not executed properly or contains violations. In this case, the agreement is considered to come into force from the moment the specialist is actually admitted to work.
Enshrined in the text of the agreement itself. Let us immediately note that this can be any value. For example, a contract was signed on December 7, but comes into force only a week or month later. In this case, a corresponding entry is made in the text.

Cases when an employee did not start work within the specified period

If the employee does not begin duties on the contract start date, the manager has the right to terminate the contract. Sometimes the contract specifies a period that is given to the employee in cases of force majeure.

For example, the contract may specify the date it comes into force and the period within which the employee is obliged to begin fulfilling his obligations.

If the employee fails to show up for work, the contract is canceled and is considered not concluded. The manager is not obliged to find out the reason for the employee’s absence from work. In this case, the manager does not bear any responsibility to the employee, and the employee does not have any rights in relation to this enterprise.

But an employee is not deprived of the right to receive compulsory social insurance payments if an insured event occurs during the contract period.

If an employee does not come to work for a good reason, then he needs to notify management about it, and then confirm it with documents. In this case, the manager draws up a special act in which all documented facts are written down.

If the employee cannot prove that his absences are justified, then the contract is terminated, and this act is considered the official reason for termination.

The Labor Code does not prescribe a waiting period for an employee at the workplace if he went on sick leave immediately after signing the contract without starting his duties. How long a manager should wait for his employee is not regulated by law.

In addition, the manager does not have the right to hire another employee for this position. But the manager can cancel the contract by notifying the employee. And if the employee does not protest against the cancellation, the manager can hire a new specialist.

Expert opinion

Kuzmin Ivan Timofeevich

Legal consultant with 6 years of experience. Specializes in the field of civil law. Member of the Bar Association.

An employee’s absence from work and termination of a contract cannot be an obstacle to drawing up and concluding a new contract if both parties to the contract consider this necessary.

Date of entry into force of the employment contract

An employment contract usually comes into effect on the day it is signed. However, if the contract specifies other dates, then they are considered valid.

By starting work ahead of time, the employee does not have any rights and obligations under the contract. Again, unless otherwise stated in the contract. If the contract does not specify the start date of its validity, then the employee is obliged to begin his duties on the next day after signing.

Also, the contract may not specify specific start dates, but a period after which the employee is obliged to return to work. For example, after a month or a week after imprisonment.

Such cases are rare and in most cases are concluded with enterprises providing seasonal or periodic work.

An employment contract is a document that sets out the working conditions for both the manager and the employee. The Labor Code provides for the procedure for drawing up a contract and assigning rights and obligations in Articles 21 and 22.

The entry into force of an employment contract implies the beginning of the fulfillment of the terms and conditions by the parties to the contract. If the employment contract is not drawn up correctly, then the start of work is considered to be the day on which the employee actually began his duties.

Cancellation of the contract

If the employee does not begin his duties within the specified period, then, as mentioned above, the manager has the right to terminate the contract with him. But responsibilities in this case mean all the responsibilities specified in the contract.

The wording of contract cancellation will look like “did not start work.” But this does not apply to cases where an employee went to work but did not begin to perform his duties.

If the employee does appear at the workplace, but does not begin his work, cancellation of the contract is no longer possible. In this case, other procedures and rules apply. So, for example, the manager can fire him or take other exacting measures, but not cancel the contract.

When should I begin my duties?

The employment contract becomes invalid if the employee does not begin his duties after 2 weeks.

The second and third articles of the Labor Code of the Russian Federation regulate the process of entry into force of the contract and determine the procedure by which the employee must begin to perform his duties.

The date of taking up the position must be indicated in the contract, and if it is not, then the first working day is considered the day following the date of signing the contract.

To officially begin an employment relationship, not only an employment contract is drawn up, but also an order from the head of the organization regarding employment. From the date indicated in the order, the employee is considered employed, and this day must coincide with the date in the employment contract.

If the position requires approval, then the order states the date on which the employee was approved for the position by management.

The employee is given a week to begin performing his duties. If he does not start working, then the employment contract is considered canceled under Art. 61 Labor Code of the Russian Federation. If the contract is canceled, it will be considered non-existent, therefore, it should not bear any consequences for the employee and the employer.

At the same time, the wording “did not start work” means the direct performance by the employee of the duties assigned to him. If he was at the workplace, but did not perform his functions, then the contract will also be canceled. The fact of non-fulfillment of duties must be documented.

A special act is drawn up, and if the employee cannot confirm the presence of a valid reason for non-fulfillment of duties, then the contract is considered terminated. In this case, the employer issues an order canceling the previous employment order.

In practice, a quick way out of such a situation is not always possible. For example, if an employee gets sick or injured immediately after signing an employment contract, the law does not determine how long the employee can wait at the workplace. At the same time, the employer no longer has the right to simply cancel the contract after a week, since formally the employee has a valid reason for absence from the workplace.

The wait can continue for a long time, and during this time it is impossible to hire another employee. In this case, the employer has the right to notify the employee in writing of the cancellation of the contract after a reasonable waiting period; the contract will be considered terminated upon receipt of confirmation of the notice.

In practice, it is difficult to determine what waiting period is sufficient, so each such case is considered individually.

Fixed-term and open-ended contract

If the contract does not specify the period for which it is concluded, then it is considered unlimited. If the contract specifies the terms of its validity, then the contract is fixed-term. Such a contract is concluded in several cases:

when hiring an employee for seasonal work;
when hiring an employee to replace a temporarily unemployed employee;
when hiring an employee to work abroad;
when hiring an employee to perform a certain amount of work.

A fixed-term employment contract is considered valid only for the terms specified in it. At the end of the contract, the manager can extend it under the same conditions.

Applicants for vacancies go through a difficult path: stressful interviews, knowledge tests, waiting for the results of a security check. When all the stages have been completed and the coveted job offer has been received, you can prepare for employment.

After submitting documents to the HR department, the applicant is registered with the staff on the basis of an employment contract that has entered into force.