Art. 56 Labor Code of the Russian Federation. With comments and changes. Latest valid edition 2021

An employment contract acts as the main regulator of legal relations arising between an employee and an employer.
However, in order for this legal act to be valid, it is necessary to carefully comply with the basic legal norms that govern the drafting of this legal act. Dear readers! To solve your specific problem, call the hotline or visit the website. It's free.
8 (800) 350-31-84

Legal basis

The employment contract is drawn up in accordance with Section 3 of the Labor Code of the Russian Federation. The use of a fairly large number of legal norms placed within the framework of this regulatory act is due to the need to carefully study all aspects of emerging labor relations.

Thus, Chapter 10 regulates the general provisions for drawing up an employment contract, in particular those that resolve issues of participation of the employer and employee as parties to the conclusion of an employment contract.

Chapter 11 of the Labor Code regulates the provisions that form the basis for the procedure for concluding an employment contract. Issues of changing a concluded employment contract are reflected in Chapter 12 of the said regulatory act, and issues of termination are reflected in Chapter 13.

Such thorough coverage of this issue within the framework of the Labor Code is aimed, first of all, at minimizing possible disputes between the employee and the employer and explaining in detail the rights of each party to such an agreement.

The concept of an employment contract

An employment contract as a legally significant term is used in the Labor Code and other regulations governing the scope of legal relations between an employee and an employer. In order for such regulation to be carried out as efficiently as possible, it is necessary, first of all, to determine what, in fact, should be understood as an employment contract.

The definition of this concept is contained in Article 56 of the Labor Code. In accordance with the provisions of this article, an employment contract should be understood as a special agreement that is signed between the employee and the employer and regulates the resolution of issues on key points of emerging legal relations, such as:

description of immediate job responsibilities;
fixing the guarantee of ensuring such working conditions that are provided for by the current labor legislation as mandatory for compliance with ensuring the safety of the health and life of the employee;
issues of financial remuneration of the employee in the form of his salary and due allowances.

An employment contract is drawn up in such a way that it takes into account the provisions of those legal acts that have been adopted within the organization or industry and are designed to regulate the main controversial issues in the legal relationship between the employee and the employer.

The purpose of an employment contract, in accordance with the provisions of Article 56 of the Labor Code of the Russian Federation, is not only to regulate the emerging legal relations between the employee and the employer, but also to impose various obligations on the parties involved in it.

So, in particular, it is on the basis of this agreement that the employee is subject to obligations for the high-quality performance of his labor functions under the control of the employer and in his interests. If an employee performs his immediate duties improperly, special penalties may be imposed on him.

Structure and content of the employment contract

The requirements for the content of a bilateral agreement are listed in Article 57 of the Labor Code of the Russian Federation, which shows step by step how to draw up an employment contract. The preamble contains information about the employer and the hired employee, including personal data, legal addresses, information about the date and place of compilation.

To correctly draw up a document, you need to include mandatory conditions that are essential:

Place of performance of direct labor duties, indicating the specific unit and its actual address. Underestimation of the importance of information leads to the fact that if there are a number of branches, retail outlets or representative offices, the employee may find himself in the position of a “nomad”, changing work addresses at each request of the employer.
Specific job function. It is important to indicate the position and set clear requirements for the availability of appropriate qualifications and education. The individual type of work performed must correspond exactly to the level of qualification. Vagueness of information is fraught with the risk of performing work that is not included in the labor function in accordance with qualifications, which does not imply payment. For example, if an employee is hired for the position of an ordinary engineer, then it is necessary to study the tariff and qualification reference book specifically for the functions of an ordinary engineer, to know the differences from the senior, leading or chief.
The start date of performance of duties, and in case of concluding an urgent form, the end date indicating the reasons. It is worth paying attention to the time interval between the moment the agreement is concluded and the moment the work process actually begins. For example, when concluding a contract on February 22, 2019 with a start date of February 25, 2019, an illness that arose during the transition period does not imply payment of temporary disability benefits.
Terms of remuneration. The payroll system, the mechanism for the formation of allowances, additional payments and bonus payments, and the dependence on the results of financial and economic activities are indicated in detail. In the absence of achieving the level of financial indicators to the planned value, a number of enterprises introduce a system of reducing coefficients. If this information is not indicated in the section, then there are no grounds for reducing wages.
Work and rest schedule. Not only the established schedule for an individual work regime with break times and days for rest are indicated, but also information about all types and durations of vacations.
Working conditions, including traveling or mobile nature. If the conditions are associated with harmfulness, then guarantees and compensation are indicated.
Other conditions not included in the document. A sample list may include:
completion of the probationary period and its duration;
clarification of a specific structural unit indicating the physical address of the place of work or permanent change of place;
obligation to work with specified deadlines, subject to training funded by the employer;
improvement of social and living conditions.

If the completed agreement does not contain the information specified in Article 57 of the Labor Code of the Russian Federation, then the agreement is not considered invalid or unconcluded, but requires additions in the form of annexes or agreements. The absence of key points in the text does not relieve the employer of obligations to comply, however, it entails penalties.

Parties to the employment contract

An employment contract is a legal act regulating the relationship between an employee and an employer, which can be signed only by two parties, namely the employee himself and the employer represented by his manager or other authorized official. Participation of other parties in such an agreement is not permitted in accordance with the provisions of Article 56 of the Labor Code of the Russian Federation.

An employment contract is an individualized legal act that is concluded only between an employee and an employer, in contrast to collective labor contracts and agreements, where the participation of the state as a third party is possible.

Article 56 of the Labor Code of the Russian Federation. The concept of an employment contract. Parties to the employment contract

Formulated in Art. 56, the concept of an employment contract allows us to identify its main elements (features) that allow us to distinguish an employment contract from civil contracts related to the use of labor - work contracts (Article 702 of the Civil Code of the Russian Federation); contracts for the performance of research, development and technological work (Article 769 of the Civil Code of the Russian Federation); contracts for paid services (Article 779 of the Civil Code of the Russian Federation); agency agreement (Article 971 of the Civil Code of the Russian Federation).

These elements include:

the specificity of the duties assumed by the employee under the employment contract, expressed in the performance of work for a specific position in accordance with the staffing schedule; profession, specialty indicating qualifications, i.e. labor function stipulated by agreement of the parties;
performing work in accordance with internal labor regulations;
the employer’s obligation to provide the employee with working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations, employment contracts, as well as pay the employee wages on time and in full.

Unlike an employment contract concluded with an employee to perform a specific job function, all of these civil law contracts are concluded to perform specific work, the purpose of which is to achieve its specific final result. Achieving a specific result stipulated by the contract entails the termination of this contract. In other words, unlike an employment contract, performing certain work under a civil contract is only a way to achieve the result stipulated by the contract. So, according to paragraph 1 of Art. 702 of the Civil Code of the Russian Federation, under a contract, one party (contractor) undertakes to perform certain work on the instructions of the other party (customer) and deliver its result to the customer, and the customer undertakes to accept the result of the work and pay for it.

Under a contract for experimental design and technological work, the contractor undertakes to develop a sample of a new product, design documentation for it or new technology, and the customer undertakes to accept the work and pay for it (Clause 1, Article 769 of the Civil Code of the Russian Federation).

When performing a labor function under an employment contract, it is quite difficult to identify the individual final result of an employee’s work.

Thus, the result of the work of an accountant, economist, manager, etc. when performing their work duties, as a rule, is expressed as a result of the work of a department, workshop, etc. generally.

In this regard, the employee’s labor function, as a rule, is not aimed at achieving any final result. Although in the process of its implementation, achieving certain specific results is possible. However, the achievement of one or another specific result in the process of performing a labor function is not the only purpose of the employment contract and does not terminate its validity in connection with the achievement of this result. This circumstance fully applies to such an element of the labor function as the specific type of work assigned to the employee (see commentary to Art.).

Performing a labor function in compliance with internal labor regulations is the second most important element, reflecting the specifics of the employment contract.

Unlike an employment contract, under which the employee is obliged to obey the rules of internal labor regulations (observe working hours, technological discipline; accurately and timely execute the employer’s orders, etc.), relations arising from civil contracts presuppose the autonomy of the will of the performer. So, for example, under a work contract, unless otherwise provided by the contract, the contractor independently determines the methods of fulfilling the customer’s assignment (clause 3 of Article 703 of the Civil Code of the Russian Federation).

Provided by Art. 56 the employer’s obligation to provide the employee with working conditions provided for by labor legislation and other regulatory legal acts containing labor law norms, collective agreements, agreements, local regulations also distinguishes an employment contract from related civil law contracts, according to which the performers of the work not only independently determine methods for its implementation, but also, as a rule, they perform it from their own materials, with their own forces and means (see, for example, paragraph 1 of Article 704 of the Civil Code of the Russian Federation).

Unlike an employment contract, under which the employer undertakes to pay the employee wages in full and on time at least every half month, under civil law contracts payment is made upon completion of the work for its final result. The salary of each employee depends on his qualifications, the complexity of the work performed, the quantity and quality of labor expended. It is determined on the basis of a pre-established wage system, tariff rate, salary and various types of payments (Articles 132, 135 of the Labor Code). The result of work under a civil contract is paid in accordance with the price stipulated by the contract (see Articles 711, 774, 781, 972 of the Civil Code of the Russian Federation).

The difference between an employment contract and civil contracts related to the use of labor is of very important practical importance. By concluding an employment contract, a citizen is subject to labor legislation. He must be provided with appropriate social guarantees. Persons working under civil contracts do not enjoy such guarantees. At the same time, it should be borne in mind that in cases where the court has established that a civil law contract actually regulates labor relations between an employee and an employer, the provisions of labor legislation and other acts containing labor law norms are applied to such relations (Art. TK). Unfortunately, as judicial practice shows, when considering the corresponding category of disputes, the courts do not always examine the nature of the relationship that actually arose between the employee and the employer, and do not take into account such signs of the labor relationship as the performance of a labor function - work in a certain position, obedience to internal regulations and etc. Often the decision is based on only formal issues (absence of an application, work record, employment order, etc.). This does not take into account the fact that issuing an order for employment and drawing up a work book is the responsibility of the employer. An example is the decision of the Khamovnichesky District Court on the claim of T.V. to OJSC Bank Otkritie, left unchanged by the Decision of the Moscow City Court dated April 26, 2012 in case No. 33-9850.

Validity

Based on Articles 58 and 59 of the Labor Code of the Russian Federation, employment contracts that are concluded on the territory of the Russian Federation are divided into two large groups:

fixed-term employment contracts , the maximum period of which cannot exceed five years from the date of conclusion, unless a decision has been made to carry out the procedure for prolonging such a contract;
open-ended contracts , which can be terminated at any time, but by their structure last as long as their parties want to cooperate with each other.

Indefinite employment contracts are the most common for large organizations, as they allow for relative stability of the workforce. The use of open-ended employment contracts indicates that the interests of the employee are important to the employer, just as it is important to retain such an employee.

If we are talking about a fixed-term employment contract, then it should be understood that such an agreement is most common among small businesses and in organizations whose staff, in accordance with the norms of current legislation, does not exceed thirty-five people. In addition, the use of a fixed-term employment contract is carried out in cases where it is necessary to hire an employee for a limited period of time, for example, due to the need to perform some specific work, or if the work is seasonal.

If two weeks before the expiration date of a fixed-term employment contract, the employer has not notified the employee of the termination of the employment contract with him, then the issue of automatically prolonging such a contract and recognizing it as indefinite may be considered.