Vacation under a fixed-term employment contract: is it required and how to apply for it

19.07.2019

192

4 min.

All officially employed citizens have the legal right to annual paid rest. But sometimes working agreements are concluded for a period of less than a year. The article explains how to register leave for a fixed-term employment contract and what its duration is in various situations.

Vacation according to TC

The duration of leave when concluding a fixed-term employment contract is determined by Art. Art. 291.293, 295 of the Labor Code of the Russian Federation, as well as Letter of the Ministry of Labor dated January 1, 2002 No. 625-ВВ.

Vacation according to the Labor Code of the Russian Federation is calculated as follows:

In the case of concluding a temporary employment contract for a period of up to six months to perform seasonal work, vacation pay is calculated according to the principle of 2 working days of vacation for 1 month of work. When calculating in this way, weekends and holidays are not taken or paid on vacation days.
To perform work for a period of more than two months, not related to the time of year, the calculation is based on the principle of 2.33 days of rest for each month of work, i.e. According to the minimum rest time established by law for a year of work, it is 28 calendar days.

Every working citizen has the right to rest, however, in the case of a temporary contract, the employer can provide leave with subsequent dismissal upon expiration of the agreement. Most often, this method of dismissal is practiced after an employee has been hired for seasonal work. If the employee has been hired for more than several years, then he can apply for leave after six months of work.

When to conclude which agreement?

According to general rules, an employment contract is concluded for an indefinite period. This type of document is suitable for all categories of persons, including minors, disabled people, and foreign citizens.

If the document cannot be concluded for an indefinite period, a fixed-term employment contract is drawn up, which describes the working conditions and other features of the relationship between the parties.

If there are no legal grounds for establishing the validity period of the contract, it may be declared illegal, and the organization may be required to enter into an open-ended employment contract. When choosing the type of contract according to the terms, you need to take into account that you cannot oblige the employee to sign a temporary employment contract - any contract is concluded by agreement of the parties.

A fixed-term employment contract is concluded under the following circumstances:

Circumstances under which this type of contract is mandatory, for example:

to perform predetermined work;
for sending abroad;
during the replacement of an employee.

Circumstances under which the employer has the right to enter into this type of contract , for example:

with part-time workers;
with pensioners;
with creative workers.

By agreement of the parties, employers have the right to conclude a fixed-term employment contract - small businesses (including individual entrepreneurs), the number of employees of which does not exceed 35 people, and in the field of retail trade and consumer services - 20 people.

Under a fixed-term employment contract, workers can be hired by companies, entrepreneurs, or individuals who do not have individual entrepreneur status. The term of a fixed-term employment contract does not exceed five years.

Types of vacations

When concluding a fixed-term employment contract, a future employee of the organization must independently familiarize himself with all the provisions. Particular attention should be paid to the rules for granting leave and the amount of compensation for it. Depending on the type of leave, the rules for its provision and payment may vary significantly.

Annual

Annual paid leave is provided to all employees of the organization with whom an employment contract has been concluded on a fixed-term or indefinite basis. The only exception to the rules for providing rest is the conclusion of a civil contract, in which the guarantees of the Labor Code of the Russian Federation do not apply to the employee. As a general rule, every working citizen must have 28 days of rest annually, which are certainly paid.

For employees on a fixed-term basis, whose duties do not exceed two months, leave is calculated on the basis of 2 working days for each month worked. The same principle applies to calculations in case of employment for any season.

Annual leave for conscripts, if their work time is more than two months and is not seasonal, is calculated according to the general rule for compiling leave.

Additional

The labor legislation of the Russian Federation does not regulate the provision of additional leave to temporary workers, which means that this type of leave is provided on a general basis based on the actual time of work.

The general grounds for providing time for rest are regulated by Ch. 19 of the Labor Code of the Russian Federation, the rules and features of the provision of additional leaves are regulated by articles 116-119 of the Labor Code of the Russian Federation, while their duration is calculated in calendar days and is not limited to any established limit. The legislation establishes the minimum amount of additional rest for an employee, depending on the rights to provide it.

In the case of additional leave, employees working in the Far North are given 24 days of rest for the previous year of work. This means that when performing duties under a fixed-term employment contract, such employees will be provided with additional leave at the rate of 2 calendar days per month of work. The calculation occurs in a similar way under other circumstances, i.e. the total additional vacation time is divided by the number of months in a year and multiplied by the number of months that the employee worked in the organization.

Maternity leave

Providing maternity leave to employees with whom fixed-term employment contracts have been concluded is regulated by Art. 261 Labor Code of the Russian Federation.

Providing maternity leave to employees working on a fixed-term basis follows the general rule, with the exception of the following features:

If the contract expires during the employee’s pregnancy, the employer, if there are grounds confirming the pregnancy, is obliged to extend the contract until the birth or until the expiration of maternity leave.
When extending the agreement before childbirth, the woman is obliged to provide the employer with a certificate of pregnancy, but not more often than once every three months.
In the case of carrying out labor activities under a fixed-term contract after childbirth, the employer may terminate the employment contract based on the expiration of its validity.

Termination of labor relations with a pregnant woman is not allowed, even if a fixed-term employment contract is concluded for a certain period, with the exception of cases of liquidation of the organization.

Training

Art. 59 of the Labor Code of the Russian Federation establishes the possibility of fulfilling labor duties for full-time and part-time students of secondary specialized and higher educational institutions. The legislator specifies that students can be hired for a seasonal period or at any other time and for any period.

The rights of student workers are regulated by Art. 59 of the Labor Code of the Russian Federation, however, if the training period is completed, the rights of these employees are regulated by the general rules and guarantees established by labor legislation. Student employment is carried out on a temporary basis, usually until he graduates from the educational institution, due to the need to comply with labor legislation.

At the same time, the right to rest for such workers is regulated by the general rules for granting leave to conscripts, while the possibility of taking out study leave during the period of validity of a fixed-term employment contract completely depends on the employer or the collective agreement, if there is one at the enterprise.

The obligation to provide study leave to an employee working on a fixed-term basis is not legally established, therefore such provisions must be prescribed individually or discussed with the employer during employment.

Compensation for required vacations

Art. 126 of the Labor Code of the Russian Federation prohibits the provision of compensation for basic paid leave. But you can get money if the main vacation is postponed to the next calendar year. Compensation can be provided for leave exceeding the standard duration, i.e. 28 days. Payment can also be received for additional vacations.

If the vacation is not used, then money for it can be received upon termination of the employment agreement. Then, in addition to salary, the employee will also receive money for each day of unused vacation. Compensation is due when an employee did not have time to take vacation during his working life. The amount of payment depends on the employee's salary. The remuneration system may provide for additional incentive bonuses and other property incentives.

To calculate compensation, perform the following steps:

Setting the number of vacation days.
Calculation of the number of days worked, calculating the amount of earnings for this time.
The average daily earnings are established. To do this, the amount of wages is divided by the number of days worked. The amount of earnings is divided by the number of months worked, i.e. the average monthly number of calendar days (29.3).
The resulting value is multiplied by the number of vacation days.

To apply for leave, you will need to fill out an application. The law does not establish a standard form of the document. Typically the application states:

Full name of the manager and his position;
full name of the enterprise;
title of the document “Application”;
the essence of the application indicating the reason for granting leave;
the date from which leave is required (this point should be agreed individually with the employer);
signature of the author of the application and the date of its writing.

Leave is granted on the basis of an order from the employer. Vacation payments are accrued three days before the employee is due to rest. If there are controversial situations related to the protection of an employee’s labor rights, including the right to leave under a fixed-term employment contract, you should promptly seek the help of a lawyer.

Vacation under a certain type of contract

Vacation is a mandatory attribute of labor relations; it is regulated by labor legislation and is provided to each employee of the organization with whom it is concluded.

Within the framework of the Labor Code of the Russian Federation, vacation is a continuous rest for an employee from performing his professional duties for a certain time established by labor legislation or an agreement between an employee of the enterprise and the employer.

Vacation can be divided into several types, each of which is regulated independently and is provided depending on the current situation:

annual basic, provided once a year to an employee of an enterprise for a period of at least 28 days;
additional, which is provided depending on working conditions and is also paid by the employer;
unpaid leave provided at the request of the employee in connection with any circumstances, in particular, the occurrence of any family difficulties, etc.;
targeted leave provided by the employer at the request of the employee for a certain period due to certain purposes, for example, educational or maternity leave.

Any employed citizen has the right to leave, regardless of the duration of the employment contract. Cancellation of leave, as well as calling an employee out of it or replacing it with a compensation payment, is possible only if the employee of the organization himself expresses such a desire. At the same time, an employee of an organization cannot rest less than the minimum established by law.

In accordance with Art. 122 of the Labor Code of the Russian Federation, the right to leave for an employee arises after the expiration of a six-month period of work at a specific enterprise, however, taking into account a fixed-term employment contract, the right to rest can arise both according to general rules and after the expiration of the agreement.

They don’t give leave - do they have the right, what does the Labor Code of the Russian Federation say?

The management of each organization/company is required to draw up a vacation schedule - of course, taking into account the wishes of the employees and the capabilities of the employer.

Compliance with the established schedule is the responsibility of both parties, both employees and managers.

Does a manager have the right to forget (ignore) his responsibilities? What does the law say?

The duration of leave is determined by law. Each officially employed employee must annually go on vacation (approx. - paid, Article 114 of the Labor Code, Article 122 Part 1 of the Labor Code) for 28 days (Article 115 of the Labor Code) while maintaining both the average salary and his position. The duration of leave for minors is 31 days. The Labor Code also provides for the employee’s right to use and the duration of study leave.
28 days of vacation can be used once or divided into 2 vacations of 14 days , which must be provided within 1 working year.
If the employer, after a year of work for his employee, has not exercised his right to leave , the employee has the right to do this independently. Why? Because the exercise of the right to vacation is determined by the legislator, and not by the employer: every employee after 6 months of official work has the right to 14 days of vacation. From the 2nd and following year of work, the manager provides vacation (28 days) to his employee according to the schedule and sequence of vacations.
Employees under 18 years of age can go on vacation before the end of their six-month period of work employees who adopted babies under 3 months of age; and women before/after maternity leave. Employees from the listed categories independently determine their vacation time when submitting a corresponding application to management.
The absence of a vacation schedule in a company implies the independent exercise of the right to vacation by an employee with his independent determination of a convenient time for this vacation. Moreover, management’s disagreement with the period of time chosen for vacation does not matter and is not at all an obstacle to going on vacation. True, you will have to warn management about this in writing a couple of weeks before the long-awaited “vacation”.
The employer is also obliged to warn its employees about vacations a maximum of 2 weeks before they occur and in writing (Article 123, Part 3 of the Labor Code). If the manager did not warn the employee, as required, 2 weeks in advance, then the employee has the right to move his vacation time forward by 2 weeks required by law.
The time for using vacation may well be determined by agreement between the employee and management. But such an agreement must take into account the nuances of the law. That is, the manager does not have the right to worsen the conditions for the implementation of vacation (for example, to give a shorter vacation than required by law).
Lack of vacation for 2 years in a row against the employee’s wishes is a gross violation of the law (Article 123-124 of the Labor Code).
If the vacation was never used , then it is “carried over” to the next year (that is, added to the next year’s vacation). It is legally impossible to exchange your vacation for monetary compensation. But in the event of a layoff or dismissal, the employer is obliged to compensate you in money for the vacation that you did not take.
When working in hazardous production or with irregular working hours, the employer is obliged to provide you with additional leave (also paid), the duration of which must be at least 3 days (it is recorded in the internal labor rules/schedule or in the team/contract). This additional leave may be replaced by monetary compensation.

Vacation pay

In accordance with Art. 123 of the Labor Code of the Russian Federation, employees of the organization authorized by the employer draw up a vacation schedule, which must be approved no less than two weeks before the start of the new year.

The trade union body, if it is approved at the enterprise, or the employer personally, in the absence of authorized units in the organization, participates in the formation of the schedule. This document reflects all the necessary information about the duration and features of vacations, which must be familiarized to each employee of the enterprise.

When establishing labor relations under a fixed-term agreement for a short period of time, the employer usually provides rest at the end of its validity, paying the employee the required payments. Vacation pay must be paid at least three days before the start of the vacation, and if these three days fall on a weekend, then before the start of the weekend.

The procedure for granting leave under a fixed-term employment contract

In order to go on vacation legally, both parties to the employment relationship should follow the appropriate procedure for its registration prescribed by the legislator. The process of leaving a temporary employee on vacation is no different from leaving a permanent employee and has the following procedure:

Completing and submitting an application to the head of the enterprise. The document states:

Position of the head of the company;
Name of the employing organization;
Full name of the boss to whom the application is being submitted;
The position of the employee wishing to go on vacation;
Full name of the employee;
Request for leave;
Length of rest period;
Vacation start and end dates;
Date of preparation of the document;
Personal signature of the document applicant.

After submitting the document, the employer must approve it by signing it with his own signature. If such a visa is not on the document, the employee does not have the right to independently leave his place of work;
Based on the signed application, the organization issues a corresponding Order to send a subordinate on leave for a certain period of time;
Next, the personnel department specialists prepare additional documents, and the accountant calculates the amount of vacation pay due to the person for payment. Finance must be provided to the employee three days before the start of the vacation, otherwise the person has the right to postpone his vacation until the funds are received.

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Situation 1

Ivanova I.I. got a job in an organization for the improvement of urban areas during the spring-summer period for a period of 4 months, according to a schedule of 6 days of work and 1 day of rest. In May she worked 28 days, in June – 27 days, in July – 26 days, in August – 28 days. Her salary was 28,345 rubles per month, taking into account the deduction of income tax.

Upon expiration of the agreement, she should receive:

2 days of rest ×4 months of work = 8 working days of rest

Due to the peculiarity of assigning leave for seasonal work, such employees are given rest time in working days, and not in calendar days.

To calculate the amount of vacation pay, you must take into account the following data:

Total period of working days for the entire duration of the agreement:

28+27+26+28=109 working days for the entire period

Total salary received:

28,345 ×4 months=113,380

Average daily earnings:

(Total salary)/(Total number of working days)=(113,380)/109≈1040 rubles per day

To calculate vacation pay, the following formula is used:

Average daily earnings ×number of rest days=1040 ×8=8 320

After the expiration of the fixed-term employment contract, Ivanova I.I. will receive 8 working days of rest and 8,320 rubles as vacation pay.

Situation 2

With Lapshina M.A. A fixed-term employment contract was concluded for a period of two years. Her salary is 53,210 rubles per month. She takes regular annual leave, which according to the law is 28 calendar days.

To calculate vacation pay, you will need the following information:

The employee's annual earnings were:

53,210 rubles × 12 months = 638,520 rubles

Average daily earnings:

(638,520 rub.)/(12 months) ÷29.3≈1816 rubles per day

29.3 is the average number of days in a month, which is established by labor legislation.

The amount of vacation pay in this case will be:

Average daily earnings ×number of rest days=1816×28=50,848 rub.

Lapshina M.A. will receive 50,848 rubles as vacation pay and 28 calendar days of rest from performing work duties.

Situation 3

Between Berdnikov A.V. and the Tsvet organization concluded a fixed-term employment contract to perform welding work in Norilsk. The contract period was 8 months from February 1, 2016. The employee's salary was 121,254 rubles per month.

Since the duration of the employment contract is more than two months, and they are not related to seasonal work, the calculation of the amount of vacation and vacation pay will occur according to standard formulas.

To determine vacation pay, you will need the following data:

Total salary for the billing period:

121,254 rubles per month × 8 months of validity of the agreement = 970,032 rubles.

Duration of labor relations in days, where 29.3 is the average monthly number of days:

29.3 ×number of months of work = 29.3 × 8 months = 234.4 days

Average daily earnings:

(Total salary)/(Average contract duration in days) = 970,032/234.4 = 4,138.4 rubles per day

Since Berdnikov worked for less than a year, the duration of his vacation will be:

(28 cal days)/(12 months)×8 months of work=18.7

Additional paid leave provided to workers in the Far North under Art. 321 of the Labor Code of the Russian Federation, is 24 calendar days.

Based on this, the following calculation can be made:

(24 cal days)/(12 months)×8 months of work=16 days of additional rest

Berdnikov will receive vacation pay for his annual main vacation:

19 (rounded) days ×4,138.4=78,629.6 rubles

Vacation pay for additional leave will be:

16 days of additional rest ×4,138.4=66,214.4 rubles

The total amount of vacation pay will be:

78,629.6+66,214.4=144,844 rub.

Labor legislation does not prohibit combining several vacations into one period or dividing them into several parts, however, in the case of a temporary employment contract, it is recommended to either go on vacation immediately before its end or receive compensation. In any case, vacation pay will be paid.

They don’t let you go on vacation as scheduled - instructions on how to gently get your way

The suitcase is almost packed, and even the tickets are on the shelf, but they still won’t let me go on vacation.

How to fight for your rights?

The manager has the right not to allow you to go on vacation if it is included in the schedule only if you yourself have given your consent. And then, only on the condition that you received your last year’s vacation and took the full vacation. 2 years without vacation is a gross violation of Article 123-124 of the Labor Code.
Don’t rush to immediately poke your bosses in the nose with the Labor Code. First, try to resolve the issue peacefully and find a compromise. Maybe it is possible to postpone your vacation by a couple of weeks so that you can finish some important work (this will only add points to your “karma” for career growth), or do it ahead of schedule (if there is no one to replace you). Or you can, for example, do some urgent work right during your vacation (you can conclude a civil contract for this case). If management does not want to let you go for a whole month, split your vacation into 2 (or more) periods. And if the company has financial problems, offer to divide the payment of vacation pay: part - before the vacation and the rest - after.
Is it impossible to achieve a compromise? And your boss stubbornly refuses to give you vacation? Write a vacation application and submit it 2 weeks before your vacation. Management refuses to sign it? Remind him in writing (exceptionally politely) that he is violating your legal rights, according to Article 123-124 of the Labor Code. You can also remind about a fine of 30,000-50,000 rubles. (Article 5.27 of the Administrative Code) and administrative liability for violation of workers’ rights. This written claim is drawn up in 2 copies and takes into account Art. 22, 115, 122-125 Labor Code, Article 37, paragraph 5 of the Constitution.
And the complaint didn’t help? Then all that remains is to appeal to the State Labor Inspectorate (as well as to the prosecutor’s office and the court).

If you are employed unofficially and are not given leave...

Even with “unofficial” employment of an employee, the employer must necessarily draw up an employment contract. This is given 3 days from the moment the employee is allowed to work. That is, direct labor relations arise from the moment the employee starts working, and he (together with the employer) is subject to all relevant provisions of the Labor Code.

As for vacation or time off at his own expense, the employee is entitled to it at any time under an existing agreement with the employer after six months of continuous work (exceptions are defined in Article 128 of the Labor Code).

If the legal right to leave is violated, the employee can safely file a complaint with the State Labor Inspectorate and additionally indicate a request for non-disclosure of personal data (to avoid retaliation from management).

If you are employed under a contract agreement, but they don’t give you vacation...

According to the laws, the basis for the emergence of labor relations between an employer and an employee is an employment contract. It is precisely this “employee/employer” relationship that is subject to all norms of labor law, including payment of sick leave, vacations, etc.

As for the contract, it already relates to contractual relations, which, in turn, are regulated by the Civil Code of the Russian Federation. That is, everyone who works under a contract is deprived of their right to vacation (sick leave, vacation pay, etc.) .

Of course, this type of work is very beneficial for the employer, but it is worth noting that a civil law contract can also become an employment contract - through the court, at the request of the employee, or at the request of the State Labor Inspectorate. And if the court recognizes this contract as an employment contract , then the employer will have to issue a work book to his employee and provide all benefits, including vacation (plus pay unpaid amounts for benefits - sick leave, vacations, etc.).

Compensation for days off work upon dismissal

Compensation payments upon dismissal can be received by all employees of the organization, regardless of the duration of the contract, therefore such provisions also apply to conscripts. The procedure for calculating compensation payments is identical to calculating the amount of vacation pay and amounts to a similar amount.

The conclusion of a fixed-term employment contract obliges the employer to comply with the established rules for providing leave for employees of the organization. The employer's reluctance to comply with labor law is a good reason to contact the Labor Inspectorate to check the legality of his actions.

Methods for calculating vacation pay for a fixed-term employment contract

As previously mentioned in the article, the procedure for determining the due vacation days and accruing financial resources for these time intervals depends on the duration of the employment agreement. Determination of the final amount of vacation payments is based on the average employee income received per work shift. This value can be calculated in two ways:

If the duration of the contract does not exceed a two-month period or the person was hired to perform seasonal work, then the average daily earnings are determined as follows: the person’s income for the period of validity of the employment agreement is determined and divided by the number of work shifts;
For other temporary contracts, the following method is used: the person’s annual income is determined, which is divided by 12 (the number of months in a year) and 29.3 (the value indicating the average number of days in a month).