Also, the employment contract specifies the conditions on the basis of which the employee performs his work activity in a specific position, which, for a moment, must correspond to his qualifications. Also, an employment contract is also a guarantee of receiving a salary.
It is not uncommon for adjustments and changes to be made to some employment contracts. This may be due to various factors , ranging from family circumstances to employer events.
Not everyone has a high level of legal literacy and can independently carry out the procedure for amending the TD or follow it.
Often, due to ignorance of any aspects of this issue, people become victims of unscrupulous employers or employees.
So how can you make changes to an employment contract without contradicting the law and other people’s interests?
Is it possible to renew an employment contract?
Management demands that the employment contract be re-signed with each employee in a new version. How legal is this requirement? How to properly organize the renegotiation of employment contracts?
I work as a personnel inspector in a municipal institution. In 2021, the institution is expected to undergo a scheduled inspection of compliance with labor legislation. And in the employment contracts of employees, as they say, the devil himself will break his leg. There are many additional agreements, while the dates and numbering are violated; what, where and when has changed is unclear.
In preparation for the inspection, management decided to renew employment contracts with employees in a new version. The decision has been made, it is necessary to implement it, but there is no understanding of how to do it correctly.
It is impossible to renew an employment contract with an employee. In your case, you can solve the problem in two ways:
- An additional agreement is to approve the employment contract in a new edition. In our opinion, this is the best option.
- Dismiss workers and rehire them under employment contracts in a new edition. In our opinion, this is a problematic option.
Change Order
Both parties to the employment relationship will certainly have a question about the form of the order to edit clauses of the employment contract. The law does not provide for a special standardized format for this document. The order is issued in free form using the organization’s letterhead.
The header of the document must contain the full name of the organization and its registration codes - KPP, INN and OGRN. Just below is the word “Order” indicating its number. Under this line the name of the order is written, for example - “On introducing changes to the terms of the employment contract of A. A. Ivanova.” The next line contains the date.
After completing the header, the introductory part of the document is written, containing in a specific form the basis that became the reason for making the amendments. After indicating the grounds, the word “I order” is placed, and the following data is written under it:
- Grounds for amending the employment contract. Most often, it is a previously concluded agreement between the employee and the employer, therefore it is enough just to put down its details;
- Requisites;
- The text itself indicating the part in which it was included.
After these operations, all that remains is to set and display the start date of the order and assign responsible persons. The order to change the employment agreement must contain the signatures of the manager, responsible persons and the employee himself, the contract with whom was changed.
Based on the above, we can conclude that the order to change the contents will look like this:
As you can see, the order to change the employment contract is as simple as possible in execution and does not require compliance with the established template.
Problem solution
What does renewing an employment contract mean under current legislation?
- Termination of the previous employment contract.
- Conclusion of a new employment contract.
Can this be done? I guess, yes. It is necessary to terminate the employment relationship with the employee, for example, by agreement of the parties (clause 1, part 1, article 77 of the Labor Code of the Russian Federation). Or he can resign on his own initiative (clause 3, part 1, article 77 of the Labor Code of the Russian Federation). After this, the employee is hired and a new edition of the employment contract is concluded with him.
What problems might arise?
Economic. When dismissing employees, it will be necessary to make a final settlement, including payment of compensation for unused vacation.
Organizational. Registration of dismissal and hiring of employees. Let's imagine that this is an educational organization. When hiring, an employee is at a minimum required to present a certificate confirming the presence/absence of a criminal record or the fact of criminal prosecution.
Emotional. Will all employees have an adequate reaction to an offer to resign? Perhaps someone will go on sick leave with pressure, and someone with a statement to the prosecutor's office or labor inspectorate.
Change Agreement
A correctly drafted agreement on editing the provisions of the employment contract concluded between the parties is an extremely important component. The law establishes that any amendments to the agreement between the employee and management must be recorded in an additional document. Such an agreement guarantees the existence of an agreement between the parties on editing the terms. It should be taken into account that even with a unilateral change in the provisions of the contract between the employee and the manager, it is necessary to draw up this document.
For your information
The agreement must correctly reflect the essence of the changes being made. The reasons for changes to the employment contract do not need to be included. The agreement comes into force from the moment it is signed or after a certain period of time. The effect of its provisions can be extended to the past tense. The agreement is concluded in various cases - when changing place of work, changing job functions, salary and related payments, working hours, etc.
A sample agreement for amending an employment contract is shown in the image below:
It must be remembered that any amendments must be accompanied by the preparation of such a document.
If the contract has expired but the work has not been completed
The organization entered into fixed-term employment contracts with a team of construction workers to perform temporary work on the construction of the facility. The contracts indicate that they are drawn up to perform temporary (for a period of no more than two months) construction work.
The event that determines the completion of work is listed in the contract as “completion of construction.” But due to the slow work of the team, the facility was not built in two months.
If the duration of the employment contract (actual or directly specified in the contract) exceeds these maximum periods, then if a dispute arises, there is a high probability that the court will reclassify it as a contract concluded for an indefinite period. Similar consequences may arise when it is established that the contract has been repeatedly re-signed, including in a situation where the total period of its validity exceeds the limits established by the Labor Code (clause
An employee with whom a fixed-term employment contract has been concluded performs his duties very well. The employer wants to hire him for a permanent job.
Is it possible to transfer an employee from a temporary job to a permanent one? Or is it necessary to fire and hire again?
The Labor Code does not regulate this situation in any way. Formally, nothing prohibits the parties from drawing up an additional agreement to the employment contract, excluding from it the condition regarding the duration of its validity.
The risk of claims from regulatory authorities in this case is minimal, since changes to the employment contract do not violate the rights of the employee, but, on the contrary, provide him with additional guarantees.
At the same time, there is also a way, directly provided for by the Labor Code, to convert a fixed-term employment contract into an open-ended one. Thus, by virtue of Article 58 of the Labor Code of the Russian Federation, the provision on the temporary nature of the employment contract automatically loses force if the contract has expired and neither party has demanded termination of the contract and the employee continues to work.
- the employee’s refusal to continue working due to a change in the terms of the employment contract determined by the parties (Part 4 of Article 74 of the Labor Code of the Russian Federation);
- the employee’s refusal to transfer to another job, which is necessary for him in accordance with the medical report, or the employer does not have the appropriate work (parts 3 and 4 of Article 73 of the Labor Code of the Russian Federation);
- refusal of an employee to be transferred to work in another area together with the employer (clause 9, part 1, article 77, part 1, article 72.1 of the Labor Code of the Russian Federation);
- circumstances beyond the control of the parties (Article 83 of the Labor Code of the Russian Federation);
- violation of the rules for concluding an employment contract, if this violation excludes the possibility of continuing work (Article 84 of the Labor Code of the Russian Federation).
This is stated in Article 77 of the Labor Code of the Russian Federation.
If it is necessary to make significant changes to the terms and conditions of employment contracts, then additional agreements to the employment contracts must be drawn up.
Everything is decided by the results of certification of his workplace for working conditions.
Changed electronic document management operator - inform the Federal Tax Service
If an organization refuses the services of one electronic document management operator and switches to another, it is necessary to send an electronic notification about the recipient of the documents via TKS to the tax office.
Re-signing a fixed-term employment contract is the conclusion of a new fixed-term employment contract with a person who has already worked in the organization under such an agreement, which has expired.
Under the new contract, the employee can perform both the same and different work, and the contract itself can begin to operate immediately after the termination of the old one.
You can renew a fixed-term employment contract in two situations.
One should also take into account the risks that arise when re-concluding and extending a fixed-term employment contract. In this article we will tell you what issues regarding relationships with “temporary” employees the employer should pay special attention to. But the contract can be extended for no more than five years (Article 58 of the Labor Code of the Russian Federation). Otherwise, a new agreement must be concluded.
Is it possible to change the form of a standard contract?
There is no prohibition on adding your own clauses to the standard employment contract form. But only on the condition that these clauses do not worsen the situation of workers in comparison with the conditions provided for by labor legislation and the standard form of an employment contract.
Also, in our opinion, it is possible to remove unnecessary items that have nothing to do with the employee. For example, you can exclude the terms of an employment contract regarding home work if the employee has nothing to do with such work.
Fixed-term employment contract: how to extend it, renew it or terminate it
For example, draw up a temporary contract in connection with the performance of work that falls outside the scope of the company’s core business, or pre-determined work, the completion time of which cannot be determined by a specific date.
On the employer's part, the notice is signed by the manager or other authorized person. It is advisable to draw up two copies of the notice, one of which will be given to the employee, and the second - with the employee’s signature on receipt - will remain in the organization.
This will help eliminate disputes about whether the notice was drafted correctly.
Principles
Contracts are drawn up between all employees of the company and the administration of the enterprise in order to approve uniform conditions for the performance of work, as well as a fair procedure for payment. These agreements are binding on all participants and cannot be changed unilaterally.
But a new version of the employment contract can be prepared if the following conditions are met:
- mutual consent of the parties;
- the need to make a large number of changes;
- absence of conditions that limit the rights of the employee;
- the presence of sufficient legal grounds allowing different types of amendments.
Early termination of a fixed-term contract at the initiative of the employee
The organization entered into an employment contract with the employee for a period of one year. A month later, the employee wrote a letter of resignation. Does he have the right to resign before the end of the contract?
Termination of an employment contract before its expiration occurs according to the same rules that apply when terminating open-ended contracts. The fact is that Article 77 of the Labor Code, which contains a list of grounds for termination of an employment contract, does not distinguish between a fixed-term and an open-ended contract. Thus, a temporary employment contract can be terminated before the expiration of the period specified in it not only at the initiative of the employer, but also at the request of the employee (Article 80 of the Labor Code of the Russian Federation, paragraph 22 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2), and also by agreement of the parties (Article 78 of the Labor Code of the Russian Federation, clause 20 of the resolution of the Plenum of the Supreme Court of the Russian Federation dated March 17, 2004 No. 2) and due to circumstances beyond the will of the parties to the agreement (Article 83 of the Labor Code of the Russian Federation).
