How to draw up a fixed-term employment contract with a cloakroom attendant? Can a fixed-term employment contract be concluded with pensioners by age? How to legally transfer pensioners working under an indefinite employment contract to a fixed-term employment contract.
Marina Nikolaevna MIKUSHINA, the region's leading specialist in labor law issues, provides answers to 524 of the most frequently asked questions regarding the relationship between an employee and an employer in the new book.The alphabetical index at the end of the book will help you quickly find the answer to your question.
The publication is addressed to heads of organizations, specialists of personnel departments and everyone who is interested in labor law issues. In addition, it will help streamline and refresh knowledge in the field of labor law and personnel administration for HR employees preparing to pass exams for obtaining a certificate in the field of personnel management.
Here are some of the answers to the questions you will find in the book "WORK IN THE LAW":
How long does it take for an employer to draw up an employment contract with an employee when he is actually admitted to work?
When the employee is actually admitted to work, the employer is obliged to draw up an employment contract with him in writing not later than three working days from the date of the actual admission of the employee to work.
Part two of Art. 67 of the Labor Code of the Russian Federation
Can a fixed-term employment contract be concluded with pensioners by age? How to legally transfer pensioners working under an indefinite employment contract to a fixed-term employment contract?
In accordance with the second part of Art. 59 of the Labor Code of the Russian Federation, an employment contract may be concluded with pensioners by age.
Establishment of labor relations for a certain period without taking into account the nature of the work and the conditions for its implementation is only allowed with those pensioners, which for the first time or again (after dismissal) conclude an employment contract with this employer.
DefinitionRF Armed Forces dated October 3, 2008 No. 89-В08-6
The law does not give the employer the right to reissue an employment contract concluded with an employee for an indefinite period to a fixed-term employment contract (as well as to terminate the employment contract) in connection with the achievement of retirement age by this employee and the assignment of a pension to him.
Old age pensioners are only those persons who have reached retirement age in accordance with pension legislation old-age pension (old age).
A citizen who has reached the age required for granting a pension, but who has not acquired the right to it, or whose pension has not been assigned due to other circumstances, cannot be considered a pensioner and, therefore, is not among the persons with whom a fixed-term employment contract can be concluded on the basis of paragraph three of part two of Art. 59 of the Labor Code of the Russian Federation.
In the event that the consent to the conclusion of the contract was given by the employee involuntarily, he has the right to challenge the legality of concluding a fixed-term employment contract with him in a court of general jurisdiction. If the court, on the basis of an examination and assessment of all the actual circumstances of the case, establishes that the consent of the employee to conclude such an agreement is not voluntary, the court applies the rules of the agreement concluded for an indefinite period.
Definitionof the Constitutional Court of the Russian Federation dated May 15, 2007 No. 378-O-P
Are cloakroom attendants in polyclinics seasonal workers (work from September 15 to May 15)?
In accordance with the Tariff and qualification characteristics for industry-wide occupations of workers, approved. By Decree of the Ministry of Labor of the Russian Federation of November 10, 1992 No. 31, the cloakroom attendant performs such work as: receiving outerwear, hats and other personal belongings from employees and visitors of the enterprise (institution) for storage; ensuring the safety of the items handed over; issuance of a token to an employee or visitor indicating the number of the place of storage of things and the issuance of clothes and other things upon presentation of the token; keeping the dressing room clean and tidy; assisting disabled and elderly visitors with undressing and dressing. Similar types of work List of seasonal work, approved. By the Decree of the People's Commissariat of Labor of the USSR of October 11, 1932 No. 185, * does not contain. Therefore, cloakroom attendants cannot be considered seasonal workers.
_________________
* This document is used in cases where sectoral (intersectoral) agreements concluded at the federal level of social partnership are not accepted or do not contain a list of seasonal work.
Which persons are subject to mandatory preliminary medical examination?
Preliminary medical examinations are mandatory:
minors;
Art. 69, 266 of the Labor Code of the Russian Federation, paragraph 2 of Art. 11 Federal Law on the basic guarantees of the rights of the child
Persons whose work will be directly related to the movement of vehicles - to determine the suitability of these workers to perform the assigned work and prevent occupational diseases;
Art. 213, 328 of the Labor Code of the Russian Federation,paragraph 3 of Art. 25 Federal Law on railway transport
Athletes,
Art. 348.3 of the Labor Code of the Russian Federation
Employees who will be employed in hard work and work with harmful and (or) dangerous working conditions (including underground work);
Art. 213 of the Labor Code of the Russian Federation, art. 14 of the Federal Law on radiation safety of the population, Art. 14 Federal Law on the destruction of chemical weapons
Employees directly involved in work related to the maintenance of electric power facilities;
paragraph 3 of Art. 28 Federal Law on the electric power industry
Employees of organizations in the food industry, public catering and trade, water supply facilities, medical and preventive and children's institutions, as well as some other employers.
Art. 213 of the Labor Code of the Russian Federation
In what cases does the law prohibit the dismissal of an employee during his period of temporary incapacity for work and during his vacation?
It is not allowed to dismiss an employee during the period of his temporary incapacity for work and during the period of vacation only in cases where the initiative to terminate the employment contract comes from employer.
Grounds for termination of an employment contract at the initiative of the employer named in paragraph 4 of the first part of Art. 77 of the Labor Code of the Russian Federation.
The contract is considered terminated, and the employee is dismissed at the initiative of the employer in the cases specified in Art. 71 and 81 of the Labor Code of the Russian Federation (with the exception of the case of liquidation of an organization or termination of activity by an individual entrepreneur).
Part sixArt. 81 of the Labor Code of the Russian Federation,LetterRos-Labor dated 09/05/2006No. 1551-6 ("Official Documents, 2006, No. 41)
According to the Supreme Court of the Russian Federation, “an employment contract with the head of an organization cannot be terminated under paragraph 2 of Article 278 of the Code during the period of his temporary disability or vacation.”
The Federal Service for Labor and Employment has the same opinion on this issue.
Item 50Letter from Rostrud dated 05.09.2006No. 1333-6 (“Regulatory acts for an accountant”, 2006, No. 19)
How to register a part-time worker as a permanent employee (i.e. an employee at the main place of work with the same employer)?
In the event that a part-time employee wishes to terminate the employment contract concluded on a part-time basis and conclude a new employment contract - “at the main place of work” with the same employer, he submits an appropriate resignation letter of his own free will, as a result of which the employment contract is terminated according to paragraph 3 of the first part of Art. 77 of the Labor Code of the Russian Federation.
It is possible to terminate an employment contract with a part-time employee by agreement of the parties, i.e. according to paragraph 1 of the first part of Art. 77 of the Labor Code of the Russian Federation.
After the issuance of the dismissal order, a new employment contract is concluded with this employee (subject to all the rules established by law for its conclusion) and an order for employment is issued. After making a record of employment in the work book, the employer enters in the work book information about the work of this employee with this employer in combination (in the event that the employee expresses such a desire in a written application). The basis for making entries will be the orders (instructions) of the employer.
How to dismiss an employee by agreement of the parties? Is the employer obliged in this case to pay the employee any money in the form of severance pay?
An employment contract (both a contract concluded for an indefinite period and a fixed-term employment contract) can be Anytime terminated by agreement of the parties to the employment contract, i.e. according to paragraph 1 of the first part of Art. 77 of the Labor Code of the Russian Federation.
Art. 78 Labor Code of the Russian Federation
The contract is terminated at the time specified by the parties. Cancellation of an agreement regarding the term and grounds for dismissal is possible only with the mutual consent of the employer and employee.
For the dismissal of an employee by agreement of the parties, no statements from the employee are required. The mutual consent of the parties (employer and employee) is drawn up by a written supplementary agreement to the employment contract containing approximately the following text: “The parties have agreed: to terminate the employment contract No. __ dated “__” _____ ___ by agreement of the parties (paragraph 1 of part one of Art. 77 of the Labor Code of the Russian Federation) "___" _______ 200__ (here you need to indicate the date of termination of the contract, which will be the day the employee is dismissed).
By concluding such an agreement, the employer and employee, guided by the fourth part of Art. 178 of the Labor Code of the Russian Federation, can agree on the payment to the employee upon dismissal of the severance pay in the established amount, supplementing the above phrase with the words: "... with the payment to the Employee upon dismissal of the severance pay in the amount of ______ rubles."
The employer's obligation to pay severance pay to employees in the event of their dismissal under paragraph 1 of part one of Art. 77 Labor Code of the Russian Federation Maybe contained in the collective agreement.
Item 20Decrees of the Plenum of the Armed Forces of the Russian Federation No. 2
Is it necessary to issue orders if it is necessary to involve an employee to work in excess of the hours on a specific working day (provided that he has an irregular working day in his employment contract)?
The conditions for engaging employees to work outside the normal working hours when they establish an irregular working day (the list of officials entitled to issue orders; the form of the order; approximate cases in the event of which an employee can be involved in work outside the working hours) should be regulated local regulations - in particular, internal labor regulations.
In which case, when calculating overtime hours, work on public holidays should not be taken into account?
When calculating overtime hours, work on holidays performed in excess of the norm of working time should not be taken into account, since it has already been paid in double size (clause 4 of the Clarification of the USSR State Labor Committee, the Presidium of the All-Union Central Council of Trade Unions dated 08.08.1966 No. 13 / P-21, approved Decree of the State Committee for Labor of the USSR, the Presidium of the All-Union Central Council of Trade Unions of 08.08.1966 No. 465 / P-21 “On approval of clarification No. 13 / P-21 “On compensation for work on holidays”).
By the decision of the Supreme Court of the Russian Federation of November 30, 2005 No. GKPI 05-1341, the application for invalidating paragraph 4 was left without satisfaction, because the contested provisions of the regulatory legal act do not contradict the current Labor Code of the Russian Federation and do not violate the rights of employees to receive wages depending on the quantity and quality of labor expended.
What does "simple" mean? How is downtime paid?
Downtime is a temporary suspension of work for economic, technological, technical or organizational reasons.
Part ThreeArt. 72.2 of the Labor Code of the Russian Federation
Downtime due to the fault of the employer is paid in the amount of at least 2/3 of the average salary of an employee.
Downtime due to reasons beyond the control of the employer and employee is paid in the amount of not less than 2/3 of the tariff rate, salary (official salary) calculated in proportion to the idle time.
Downtime due to employee fault not paid.
Parts one - three art. 157 Labor Code of the Russian Federation
How to correctly calculate the day of your stay on a business trip (if you left at 8:00 am and arrived at 1:30 am)? What document states this?
Day of departure on a business trip the date of departure of a train, plane, bus or other vehicle from the place of permanent work of the seconded person is considered, and the day of arrival from a business trip is the date of arrival of the specified vehicle at the place of permanent work. When sending the vehicle up to 24 hoursinclusive, the day of departure on a business trip is considered the current day, and from 00 hours and later - next day .
If the station, pier or airport is located outside the settlement, the time required to travel to the station, pier or airport is taken into account.
Similarly, the day of arrival of the employee at the place of permanent work is determined..
Therefore, in the described case, the employee was on a business trip for 2 days (he left at 8 am that day and arrived at 1-30 the next day).
Clause 4 of the Regulationsabout business trips
Can a former (dismissed) employee be held liable?
Termination of an employment contract after causing damage does not entail the release of the party to this agreement from liability provided for by the Labor Code of the Russian Federation or other federal laws.
Part ThreeArt. 232 of the Labor Code of the Russian Federation
Under what conditions can a person applying for a job in an organization as a driver be accepted for this job?
Employees hired for work directly related to the movement of vehicles must undergo professional selection and professional training in the manner established by the federal executive body responsible for the development of state policy and legal regulation in the field of transport.
Part oneArt. 328 of the Labor Code of the Russian Federation
A person applying for a job in an organization as a driver may be hired for this job provided:
The presence of a driver's license for the right to drive a vehicle of the corresponding category;
The presence of a document confirming the passage of a medical examination within the established time limits;
Compliance of his qualifications, work experience and other professional characteristics with the requirements established for a particular type of transportation.
In order to check the compliance of the driver with the work entrusted to him for the safe implementation of a particular type of transportation, he can be hired on probation in accordance with applicable labor laws.
Clause 3.1.1 of the Regulation on ensuring road safety in enterprises, institutions, organizations engaged in the transport of passengers and goods, approved. Order of the Ministry of Transport of Russia dated 09.03.1995 No. 27
Is a record of part-time work made in the employee's work book?
Information about part-time work is entered in the work book of the employee at the place of main work and only at his request(expressed in a written application), - on the basis of a document confirming part-time work (as a rule, a certificate (or certificates) indicating the dates and numbers of orders for admission and dismissal, signed by the head of the organization or a person authorized by him, copies of orders or extracts from orders (duly certified) or an employment contract concluded with the condition of part-time work).
Art. 66 Labor Code of the Russian Federation
If an employee refused to perform work in case of violation of labor protection requirements, can he be held disciplinary liable?
An employee's refusal to perform work in the event of a danger to his life and health due to violation of labor protection requirements or from performing heavy work and work with harmful and (or) dangerous working conditions not provided for by the employment contract does not entail bringing him to disciplinary responsibility .
Part seven of Art. 220 of the Labor Code of the Russian Federation
Refusal to perform work during a translation made in compliance with the law is recognized as a violation of labor discipline, and absence from work - absenteeism. At the same time, it should be borne in mind that, by virtue of the fifth paragraph of the first part of Art. 219, parts of the seventh art. 220 of the Labor Code of the Russian Federation, an employee cannot be disciplined for refusing to perform work in the event of a danger to his life and health due to violation of labor protection requirements, with the exception of cases provided for by federal laws, until such danger is eliminated or from performing hard work and work with harmful and (or) dangerous working conditions not provided for by the employment contract. Since the Labor Code of the Russian Federation does not contain norms prohibiting an employee from exercising this right, even when the performance of such work is caused by a transfer on the grounds specified in Article 72.2 of the Labor Code of the Russian Federation, the employee’s refusal to temporarily transfer to another job in accordance with Article 72.2 of the Labor Code of the Russian Federation for the above reasons is justified .
Item 19DecreesPlenum of the Armed Forces of the Russian Federation No. 2
Is it possible to pay benefits to a former employee who lost his ability to work after dismissal, as well as to a person whose employment contract was canceled?
Temporary disability benefits are paid to insured persons not only in the event of insured events during the period of work under an employment contract, performance of official or other activities, during which they are subject to compulsory social insurance, but also in cases where illness or injury came:
Within 30 calendar days from the date of termination of the specified work or activity;
In the period from the date of conclusion of the employment contract until the day of its cancellation.
Part 2 Art. 5 of the Federal Law on compulsory insurance in case of temporary disability and in connection with motherhood
Are temporary disability benefits, maternity benefits, childcare benefits paid to external part-time workers?
If the insured person is employed by several insurers, benefits for temporary disability, pregnancy and childbirth are assigned and paid to him by the insurers. at all places of work (service, other activities), and the monthly allowance for child care - by the insured at one place of work (service, other activity) at the choice of the insured person.
Part 2 Art. 13Federal Law on compulsory insurance in case of temporary disability and in connection with motherhood
What should be done with a work book if it is impossible to issue a work book to an employee on the day the employment contract is terminated due to his absence?
In the event that it is impossible to issue a work book to an employee on the day of termination of the employment contract due to his absence or refusal to receive it, the employer is obliged to send a notification to the employee about the need to appear for the work book or agree to send it by mail.
Art. 84.1 of the Labor Code of the Russian Federation
If on the day of the employee's dismissal (termination of the employment contract) it is impossible to issue a work book due to the absence of the employee or his refusal to receive the work book in his hands, the employer sends the employee a notice about the need to appear for the work book or agree to send it by mail. Sending a work book by mail to the address indicated by the employee is allowed only with his consent.
Clause 41 of the Rules for maintaining work books
It would seem that a cloakroom attendant is such a modest and insignificant profession. However, without her work, it is difficult to imagine many institutions, theaters, restaurants, libraries, concert halls, etc. This profession is already so traditional and familiar that it is difficult to imagine our modern world without it.
As you know, the task of the cloakroom attendant is the issuance and receipt of outerwear in the cloakroom. The work is very repetitive and fairly uncomplicated, although the pay is rarely high. Often pensioners choose to work as a cloakroom attendant in Moscow. After all, it does not require special concentration, does not involve high psychological, mental and physical stress. The necessary qualities also do not represent, in the main, anything special. The cloakroom attendant must know the rules for processing documents that should be drawn up in case of loss of a token, the rules for storing and receiving personal belongings. In advertisements like “cloakroom attendant in Moscow is required”, personal requirements include communication skills, diligence, attentiveness, accuracy.
As a rule, among the main duties of the cloakroom attendant is the acceptance of shoes, hats, outerwear and other personal belongings from visitors to the establishment and its employees, the issuance of a token, and, after that, the things deposited upon presentation of the token. Also, the tasks include keeping the dressing room in order and cleanliness, ensuring the safety of things. By the way, if you have sufficient education, career growth in the administrative line may be possible. However, in order to get a job in a wardrobe, it is often not necessary to have education and work experience.
Wage level
The bar graph shows the change in the level of the average salary of the Wardrobe attendant profession in Moscow:
The number of vacancies in the profession Wardrobe attendant in % by salary range in Moscow:
Look for a job with Trud.com
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We again need your help. There are doubts how to prescribe the reason for the urgent contract to the cloakroom attendant. Is this a seasonal job? But after all, it can be produced not only during the season, but at our desire and constantly. Or is it a predetermined job? But we define its completion by a specific date. If you take the line of Article 59 above - "work in an organization created for a predetermined period or for the performance of a predetermined job" - it is confusing that the key word is the word "organizations".
Answer
Answer to the question:
All cases of concluding a fixed-term employment contract are indicated in Art. 59 of the Labor Code of the Russian Federation (see).
An expert shares important information about fixed-term employment contract in the material at the link.
The work indicated by you is not seasonal, as it is not named in the lists.
The basis “with persons entering work in organizations created for a known period or to perform a known work” is another independent basis for concluding a fixed-term employment contract. The word "organization" here should be understood as "legal entity". This basis is applied when the organization is created for a certain period, and in order to achieve the goals for which it was created, employees are hired under a fixed-term employment contract. The term of the employment contract is determined by the period for which such an organization was created. This foundation does not suit you.
Details in the materials of the System Personnel:
Directory: Seasonal work
Seasonal work- works that, due to climatic or other natural conditions, are performed during a certain period (season), which, as a rule, does not exceed six months. The lists of seasonal work and their maximum duration are determined by federal branch (interbranch) agreements. This follows from the Labor Code of the Russian Federation.
Currently, there are no sectoral (intersectoral) agreements concluded at the federal level. Therefore, to determine seasonal work, you can use the lists approved by the decrees of the Government of the Russian Federation, and.
With respect and wishes for comfortable work, Valentina Yakovleva,
Expert Systems Personnel
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