Annual holidays are granted to employees of all companies regardless of the legal status of the employer (stat. 114 of the Labor Code). At the same time, during the absence of a specialist, the place of work is necessarily preserved and vacation payments are paid. But is a fixed-term vacation required? After all, such a contract is concluded for a certain period and in accordance with regulatory frameworks (stat. 58, 59 of the Customs Code). We will understand the legislative nuances.
The annual right of staff to leave is fixed in the Labor Code of the Russian Federation (chap. 19). The total duration of such a rest period is 28 days (calendar) per year (stat. 115). The maximum limit is not limited (stat. 120). In stat. 122 TC regulated by the mechanism for providing employees with leave. In particular, it says here that holidays are issued annually, for the first time, an individual has the right to rest after a six-month employment with the employer, and by mutual agreement of the parties, earlier. The priority is determined according to the vacation schedule developed by the enterprise.
With ordinary employees, everything is clear. But what about those specialists who are hired for emergency TD? Are they entitled to vacation? Of course, the answer to this question will be positive. After all, there are no restrictions in the type of labor contracts concluded. However, “conscripts” workers have some nuances:
- With a validity period of STD less than 2 months. - paid vacation is presented at the rate of 2 days. for each month worked. Moreover, at the request of an individual, leave is allowed to be replaced with monetary compensation (stat. 291 of the Labor Code).
- When working on STD, concluded for the duration of the season (usually up to 6 months), vacation is also provided at the rate of 2 days. for each month worked (stat. 293, 295 TC).
If the conscript is working in the company for more than six months, leave for him is established, as well as for permanent employees, based on 28 days. in year. The right to a first rest arises after continuous working out for 6 months. The categories of persons to whom, as an exception, leave may be granted earlier than the designated working period, are listed in the stat. 122.
Vacation Procedure
Since the vacation schedule is drawn up a year in advance, and conscripts are often hired in the middle of the period, in order to get a vacation, the employee will need to write an application to the head of the enterprise. According to the approved statement, the personnel officer issues an order to issue a vacation, and the accountant calculates the vacation pay. Amounts must be paid to the employee 3 days before the start of the holiday.
Calculation of vacation pay under a fixed-term employment contract
To accrue vacation pay should calculate the average earnings. In accordance with stat. 139 there is a single calculation procedure for both permanent and temporary specialists. In this case, all types of remuneration provided by the employer are taken into account. The exact list of payments is regulated in Regulation No. 922 of 12.24.07. If the STD is valid for less than 2 months. or for the season, business days are taken into account. In all other situations - calendar.
The total amount of earnings is calculated in total for the entire worked period. If an employee has worked for less than 12 months, the individual’s income for the actual time of employment is taken, divided by the number of days (work or calendar) and multiplied by the expected number of vacation days. The income tax is deducted from the accrued vacation pay at the applicable rate.
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An employee who works under a fixed-term employment contract is entitled to annual paid leave. Often when making and paying for such a vacation, personnel officers and accountants have questions. Is it necessary to include “conscripts” in the vacation schedule for the coming year if his contract ends next year? How many days of vacation should be indicated in the fixed-term employment contract? How to calculate compensation for unused vacation during the dismissal of an employee? To understand these and other issues that arise in connection with the provision of leave to "conscript", our today's article will help.
Introductory information
The Labor Code establishes special rules for the provision of annual leave to employees with whom fixed-term labor contracts are concluded in only two situations. Namely: the term of the employment contract does not exceed two months or the employee is engaged in seasonal work (for when it is possible to conclude such contracts, see ""). In both cases, employees must be granted leave at the rate of two working days for each month of work (Art. 291 and Art. TC RF).
If the work is not seasonal, or the term of the employment contract is more than two months, then there are no specific instructions on the provision of annual leave in the Labor Code of the Russian Federation. Therefore, the employer needs to be guided by the general rules, that is, the same that apply in a fixed-term employment contract. It is important to understand how to adapt the general rules to the features of fixed-term employment contracts.
Whether to include “conscripts” in the vacation schedule
HR managers and accountants often doubt whether people who work under fixed-term employment contracts concluded for less than a year should be included in the vacation schedule. Doubts are caused by the fact that according to the article of the Labor Code of the Russian Federation, the vacation schedule for the next year is compiled no later than two weeks before the onset of this year. And it may happen that the scheduled time of vacation of the “conscript” will be for the period when the contract is over and the employee is dismissed.
However, when planning a vacation schedule, you can’t ignore the “conscript”. Indeed, in December of the previous year, that is, at the time of drawing up the schedule, he was still on the staff and, as a result, had the right to leave. In addition, despite the limited duration of the contract, there is no complete certainty that next year the employee will certainly leave the organization. After all, it is possible that the employer will sign another fixed-term employment contract with him. Also, one cannot exclude the possibility of re-qualification of a fixed-term contract into a perpetual. This can happen if neither of the parties requires termination of the contract at the end of its validity period, or it turns out that the contract term was established without sufficient justification (article of the Labor Code of the Russian Federation; for more details see ""). Under such circumstances, a person will remain at work and retain the right to annual leave, which, as you know, is granted in accordance with the schedule.
How many days of vacation are due to "conscript"
How to calculate vacation pay
Duration of the contract - 2 months or more (non-seasonal work)
Example 1
An employment contract with an employee Kuptsov was concluded for a period of 12 months (from August 1, 2017 to July 31, 2018). During this period, Kuptsov received monthly salaries of 40,000 rubles. Kuptsov did not have holidays, sick leave and absenteeism.
From August 1, 2018, Kuptsov was granted leave of 28 calendar days with subsequent dismissal. The accountant determined that the calculation period for calculating vacation pay is the period from August 1, 2017 to July 31, 2018. During this time, Kuptsov earned 480,000 rubles (40,000 rubles x 12 months). The average daily earnings is 1 365.19 rubles (480 000 rubles: 12 months: 29.3). Kuptsov’s holidays amounted to 38,225.3 rubles (1,365.19 rubles x 28 days).
Duration of the contract is up to 2 months (or seasonal work)
As mentioned above, if an employment contract is concluded for a period of seasonal work, or for a period of up to two months, vacation is granted at the rate of two working days for each month of work. In this case, the average daily earnings is the accrued salary divided by the number of working days according to the calendar of the six-day working week (article of the Labor Code of the Russian Federation). This value must be multiplied by the number of working days of vacation.
Example 2
An employment contract with employee Barinov was concluded for a period of seasonal work that lasted three months (from July 1 to September 30, 2018). During this period, Barinov received monthly salaries of 32,000 rubles. Barinov did not have holidays, sick leave and absenteeism.
From October 1, 2018, Barinov was granted leave of 6 working days (3 months x 2 working days), followed by dismissal. The accountant determined that the calculation period for calculating vacation pay is the period from July 1 to September 30, 2018. During this time, Barinov earned 96,000 rubles (32,000 rubles x 3 months). The number of working days according to the six-day working week calendar was: in July - 26, in August - 27 and in September - 25. Total: 78 workdays. days (26 workdays + 27 workdays + 25 workdays).
The accountant determined that the average daily earnings of Barinov is 1,230.77 rubles (96,000 rubles: 78 working days). Holidays amounted to 7,384.62 rubles (1,230.77 rubles x 6 business days).
Compensation for unused vacation
It may happen that the contract expired and the employee has not yet used paid rest days. Most often this happens when the contract is concluded for a period of less than six months. The fact is that, as a general rule, the employee has the right to leave after six months of continuous work with his employer (article of the Labor Code of the Russian Federation). Therefore, a person who works on the basis of a fixed-term employment contract of five months or less, as a rule, does not have time to get legal rest.
In this situation, upon dismissal, the employer must pay compensation for unused vacation. It is calculated in the same way as vacation pay, that is, by multiplying the average daily earnings by the number of vacation days (in this case, unused). As noted above, in the case of seasonal work and with an employment contract for a period of up to two months, the average daily earnings are determined in a special order (article of the Labor Code of the Russian Federation).
If the employment contract was concluded for a period of up to two months or for seasonal work, the compensation shall be considered in working days. If the term of the employment contract was two months or more, and the work was not seasonal, then the compensation shall be considered in calendar days. It does not matter how much the employee actually worked. So, if the contract term was five months, and the employee quit after one month, his compensation should still be considered in calendar days.
The organization has the right to conclude contracts with employees for a specific, predetermined period of time. Specialists hired under these conditions do not lose their right to leave under a fixed-term employment contract. Its calculation and design have important nuances that must be taken into account by an accountant or personnel specialist of the company.
Features of contracts for a short period are discussed in detail in the Labor Code. According to Art. 291, employees of the organization’s staff are entitled to leave on paid leave or receive compensation for its non-use. Specialists hired under a fixed-term contract have the same rights and guarantees as their colleagues, who work on an unlimited basis.
Art. 114 states that “conscripts” are entitled to 28 days of legal rest for 12 months. For the specified period, they retain their position and salary.
According to Art. 122, the right to apply for a vacation arises from an employee after six months of continuous work in the organization. If the contract with the company is signed for a shorter period, you won’t be able to take advantage of the legal days of rest; monetary compensation will be issued for them. Take a vacation "in advance" can certain categories of specialists (persons under 18 years of age, pregnant women).
How to calculate vacation?
If the employment relationship with the company is not drawn up for a period of up to 2 months or for seasonal duties (less than six months), the employee is entitled to two days of paid rest for the worked month in terms of a working week of six days.
Example
Ivanov P.S. concluded an agreement with Agrokomplekt LLC for harvesting on a farm for three months (from 01.06.2016 to 01.09.2016). From September 1, the company must provide him with leave, followed by dismissal. How to determine the number of days of rest?
Following the rule, we accrue two days for each month: 2 * 3 \u003d 6. This means that Ivanov’s vacation will last from August 1 to August 7 — seven days, of which only six will be paid and Sunday will be excluded.
If the contract with the company is concluded for a period of more than two months and it is not a question of performing seasonal work, then for each worked month the employee is entitled to 2.33 days of rest. This number is obtained by simple calculation:
Number of days \u003d 28 (vacation duration per year according to the Labor Code of the Russian Federation) / 12 (number of months in a year).
When determining the duration of rest of persons employed under a fixed-term contract, the accountant should not take into account weekends and holidays.
How to calculate cash compensation for unused vacation?
When calculating compensation, the accountant takes as the basis the number of days actually worked by a specialist.
Example
Ivanov P.S. concluded a nine-month fixed-term contract with a computer company. Working conditions did not build him, and he left the company after two. How to determine the amount of compensation?
To calculate the number of "accumulated" vacation days per month, you need to use the value of 2.33. According to the rules, this indicator is determined based on the term of the contract, and not on the basis of the actual hours worked.
Compensation to Ivanov is due for 2.33 * 2 \u003d 4.66 unused vacation days.
How to make a vacation "conscript"?
It is possible to grant leave to an employee working under a fixed-term contract on the basis of his application or vacation schedule. The second option is rarely used, because it is not customary to include temporary specialists in schedules.
To take a paid vacation, the employee must write a statement addressed to the head of the organization two weeks before it begins. If an employee belongs to the preferential category, he must be granted leave during the period indicated in the document. Otherwise, the employer has the right to coordinate the transfer.
Based on the signed application, the personnel specialist creates an order for granting leave and a note calculation. The average employee's earnings are calculated according to the rules established for persons drawn up under a perpetual contract.
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Such contracts are concluded for temporary or seasonal work, for one-time services, for the replacement of an absent employee (for example), for emergency response, work abroad, an elected position, etc. The legislator singles out an entire chapter of the Labor Code, which governs the relationship between the employee and the administration in case of signing for a specified period.
Is leave granted under a fixed-term employment contract or compensation for it?
It says that every employee possesses. It does not depend on the duration of the contract. Consequently, fixed-term employee leave must be granted.
When concluding a fixed-term contract, you must be interested in its terms and conditions that relate to vacation and monetary compensation. It is advisable to see his draft and show it to a competent lawyer before signing the document. Ideally should be provided and the right to leave at, and to monetary compensation.
Features of vacation
It should be noted that the procedure for calculating vacation and the number of days depends on the duration of the labor contract. In general terms, leave is granted for 28 calendar days with the preservation of the place of work and salary.
For "conscripts" the law has established its exceptions: vacation is calculated in working days according to the principle: two working days for each month of work in the following cases:
- if the employment contract is drawn up for a period not exceeding two months,
- seasonal workers.
Well and if there was a vacation, but the employee did not work it this year, and is going to quit, then accounting has the right to deduct from the salary for unworked.
We must say right away that workers drawn up under a fixed-term employment contract are entitled to the same social guarantees as “unlimited”. In a slightly different way, only holidays are calculated. The only thing "conscripts" are not entitled to is severance pay. At the same time, parting with such employees is much easier.
A fixed-term employment contract is concluded for a maximum of five years. Unlike indefinite, this contract can not be concluded with every employee and not for every job. A fixed-term contract is provided by law for cases where labor relations cannot be established for an indefinite period, taking into account the nature of the work ahead or the conditions for its implementation (Article 58 of the Labor Code of the Russian Federation). These conditions are defined in article 59 of the Labor Code. Here are the most suitable for everyone.
Conclusion conditions
The text of the fixed-term employment contract must necessarily indicate the reasons and circumstances giving the right to conclude this particular type of contract (Article 57 of the Labor Code of the Russian Federation).
The basis for concluding a fixed-term employment contract may be:
- absence of the employee for whom the place of work is retained. At this place you have every right to take another person and conclude an employment contract with him for a certain period - until the absent employee assumes his duties;
- work for which a person is hired is temporary (up to two months) or seasonal;
- carrying out work that goes beyond the scope of ordinary activities, as well as urgent work;
- carrying out work related to the expansion of production, if it is known in advance that this work or this expansion is temporary (up to one year);
- performance of work directly related to the internship and professional training of the employee;
- if you hire a person to perform a deliberately defined temporary work, the completion date of which is unknown;
- the person you hire is a full-time student, an old-age pensioner or part-time worker;
- you take the person to the position of manager or chief accountant;
- the employee was elected by competition for the post. In this case, the competition should be held in the manner prescribed by labor legislation and other regulatory legal acts containing labor law norms;
- other cases provided for by the Labor Code or other federal laws.
Small businesses, including individual entrepreneurs, can conclude fixed-term employment contracts if the number of their employees in the general case is no more than 35 people. For employers in the field of retail and consumer services, the limit is 20 people.
Note: for employees hired for temporary work for up to two months, a probationary period is not set (Article 289 of the Labor Code of the Russian Federation). The probationary period for seasonal workers should not exceed two weeks (Article 70 of the Labor Code of the Russian Federation).
If the validity period is not indicated in the employment contract, the contract is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).
Dangerous moments
Article 58 of the Labor Code expressly prohibits concluding fixed-term employment contracts instead of indefinite ones in order to evade the provision of workers with their rights and guarantees.
An employment contract concluded for a specified period in the absence of sufficient grounds established by the court is considered to be concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation).
If the court reclassifies employment contracts as perpetual, then in addition to all the required payments to employees (reinstatement, payment of involuntary absenteeism, moral damage, etc.), a fine will have to be paid (Article 5.27 of the Code of Administrative Offenses). Its size for officials is 1000-5000 rubles, for legal - 30 000-50 000 rubles. Moreover, the court may suspend your activity for up to three months.
To avoid this, you need to pay special attention to the correct and timely documentation of labor relations with employees, as well as proper registration. The document should contain all the necessary details: date, number, signature, etc. We list a few key points.
If the court reclassifies employment contracts as perpetual, then in addition to all the required payments to employees (reinstatement, payment of involuntary absenteeism, moral damage, etc.), a fine will have to be paid (Article 5.27 of the Code of Administrative Offenses).
The contract must be concluded for a specified period. In the event of a trial, you will have to prove that the employment contract could not be concluded indefinitely. This obligation of the employer is enshrined in article 56 of the Code of Civil Procedure. If you can’t prove this, then a fixed-term employment contract can be re-qualified as unlimited. This is due to the fact that article 59 of the Labor Code lists cases in which the employer has the right, and not the obligation, to conclude a fixed-term employment contract. He can realize this right only by observing all the requirements of article 58 of the Labor Code.
It is impossible to conclude several fixed-term employment contracts in a row with the same employee to perform the same labor function. In the event of the fact of repeated conclusion of short-term fixed-term labor contracts with one employee for the fulfillment of the same labor function, the court has the right to recognize the labor contract as unlimited (paragraph 14 of the Resolution of the Plenum of the Supreme Court of the Russian Federation of March 17, 2004 No. 2).
A fixed-term contract concluded by agreement of the parties may also be recognized as unlimited. This will happen if the court decides that the employees were forced to conclude fixed-term labor contracts.
Another dangerous point is the expiration of the employment contract. If a person continues to work and the employer does not require termination of the contract, then he is considered concluded for an indefinite period (Article 58 of the Labor Code of the Russian Federation). Therefore, you need to carefully monitor the expiration of employment contracts and correctly execute everything.
Calculate vacation pay
A fixed-term employee has the same right to annual paid leave as an employee registered under a fixed-term employment contract. On the basis of article 114 of the Labor Code, he is generally granted annual paid leave with the preservation of his place of work and wage. The duration of the leave of "unlimited" should not be less than 28 calendar days per year (Article 115 of the Labor Code of the Russian Federation). If a person is drawn up under a fixed-term employment contract, vacation pay is considered differently, the duration of his vacation depends on the number of days worked.
So, according to article 295 of the Labor Code, employees who have concluded fixed-term labor contracts for a period of less than two months or perform seasonal work, leave is granted in the amount of two working days for each month of work.
For employees who have concluded fixed-term employment contracts for a period of less than two months or perform seasonal work, leave is granted in the amount of two working days for each month of work (Article 295 of the Labor Code of the Russian Federation).
Please note: the right to use the leave for the first year of work arises for the employee only after six months of continuous work with one employer (Article 122 of the Labor Code of the Russian Federation).
The amount of the employee’s vacation pay drawn up under a fixed-term employment contract depends on the size of his average salary. The rules for calculating average wages are the same and are established in article 139 of the Labor Code and in the Regulation on the specifics of the procedure for calculating average wages, approved by Decree of the Government of the Russian Federation of December 24, 2007 No. 922.
Regardless of the mode of work, the average salary is calculated based on the salary actually accrued to the employee and the time actually worked by him for 12 calendar months preceding the period during which the average salary is kept for the employee. The calendar month for calculation is the period from the 1st to the 30th (31st) day of the corresponding month inclusive (paragraph 4 of the Regulation on the specifics of the procedure for calculating average wages).
The average earnings are equal to the product of the average daily earnings by the number of days in the period payable.
To calculate the average daily wage for paying holidays in calendar days and paying compensation for unused holidays, the amount of wages actually accrued for the billing period should be divided by 12 and the average monthly number of calendar days (29.4).
The employee may take leave at his own expense in the general manner on the basis of a written application (Article 128 of the Labor Code of the Russian Federation).
Often the vacation time goes beyond the validity of the employment contract, and the employee is granted leave with subsequent dismissal, then the last working day of the employee will be the last day of his vacation. In this case, the employment contract is not recognized as perpetual, because the rule to consider the day of dismissal as the last vacation day is established by article 127 of the Labor Code.
ExampleThe travel company has entered into an employment contract for a period of six months with swimming instructor Lastov with a salary of 30,000 rubles. per month. Lastov taught tourists to scuba dive six days a week from April 1 to September 30, 2010 inclusive. Calculate the amount of vacation seasonal worker.
Lastov worked six months in full, the duration of his vacation will be:
6 months x 2 days / month \u003d 12 days
The amount of accrued wages will be:
30 000 rub./month x 6 months \u003d 180 000 rub.
The number of working days will be:
Average daily earnings will be:
180 000 rub. : 154 days \u003d 1168.83 rubles / day
The amount of vacation pay will be:
US $ 17.98 / day x 12 days \u003d $ 14,025.96
Termination Rules
In order for the employment contract not to be considered indefinite, the employer is obliged to notify the employee in writing at least three calendar days before the dismissal (article 79 of the Labor Code of the Russian Federation) about the expiration of its term.
Please note: it is the employer or the person authorized to do this who must notify the employee.
You can not notify a temporary worker who has been hired for the period of absence of the main one, since the absent person can go to work earlier than the expected date. The “conscript” knows in advance that his employment contract expires when the main employee enters the work.
In addition to the expiration, there are other reasons for terminating a fixed-term employment contract. An employment contract can be terminated prematurely by agreement of the parties (Article 78 of the Labor Code of the Russian Federation), on the initiative of the employer (Article 81 of the Labor Code of the Russian Federation) or an employee (Article 80 of the Labor Code of the Russian Federation).
If the initiator of the termination is an employee, then, as a general rule, he must notify the employer in writing no later than two weeks before dismissal (Article 80 of the Labor Code of the Russian Federation).
When concluding an employment contract for no more than two months, this period shall be reduced to three calendar days (Article 292 of the Labor Code of the Russian Federation). A three-day period is also provided for employees performing seasonal work (Article 296 of the Labor Code of the Russian Federation).
If the head of the organization leaves early, then he must notify the employer (founder) no later than a month before leaving (article 280 of the Labor Code of the Russian Federation).
You cannot terminate a fixed-term employment contract with a pregnant employee on the basis that he has already expired. The term of the employment contract is extended until the end of her pregnancy. In this case, a woman must submit an appropriate application and a certificate from a doctor confirming the state of pregnancy. An employer can request such a certificate no more than once every three months (Article 261 of the Labor Code of the Russian Federation).
A pregnant employee can be dismissed on the basis of the expiration of the employment contract only in one case - if she worked in the place of an absent employee who went to work. After a full-time employee comes to work, the labor contract with the “conscript” is terminated on the basis of the expiration of his term (clause 2 of article 77 of the Labor Code of the Russian Federation).
A pregnant employee can be dismissed on the basis of the expiration of the employment contract only in one case - if she worked in the place of an absent employee who went to work. After a full-time employee enters work, the labor contract with the “conscript” is terminated on the basis of the expiration of his term (clause 2 of article 77 of the Labor Code of the Russian Federation).
In addition, one cannot dismiss at the initiative of the employer an employee who is sick (Article 81 of the Labor Code of the Russian Federation). The day of dismissal of such an employee will be the day following the end of the illness.
E. Irkhina, expert editor
