Legal advice: Grounds for refusal to renew a contract

Duration of service for contract military personnel

Contracts for service in the army and navy can be concluded for the following periods:

• 3 years;
• 5 years;
• 10 years;
• up to the maximum period of military service (up to 45 years).

An exception is a contract concluded under force majeure (extraordinary) circumstances, which can have a period of 6 months to 1 year. Such events may include:

• declaration of a state of emergency in a region or country;
• eliminating the consequences of a natural disaster;
• surgical intervention in emergency situations;
• establishing constitutional order.

When concluding a contract of up to 1 year, a probationary period is not established for the serviceman.

For soldiers (sailors), sergeants and foremen who perform military service under the terms of a concluded contract, after its expiration, a procedure is provided for concluding a new contract with management, subject to the following necessary conditions:

• the serviceman's age should not be more than 40 years;
• the specialist must be suitable for the position held due to health reasons;
• the command should not have any claims against the subordinate for the performance of his official duties.
• passing tests (survival courses for contract military personnel) in accordance with the combat training course

In the case where a conscript soldier is accepted under the terms of a contract, and after some time he realizes that he made the wrong choice and wants to break the contract, he will have to return to military service again upon conscription.

At the same time, he will receive monetary allowance according to the conscript soldier’s grid.

The calculation of service time is as follows: 2 years of contract service is equivalent to 1 year of military service.

Specialists serving under a contract are required to undergo a probationary period, during which the command takes a closer look at the new soldier and evaluates his abilities and skills to perform the duties of a military position.

Expert opinion

Semenov Vyacheslav Denisovich

Practitioner lawyer with 8 years of experience. Specialization: criminal law. Member of the Bar Association.

During the test, the serviceman himself can decide on the correct choice of military specialty for the coming years. Statistically, about 5% of contract soldiers fail to complete the test.

The reasons for this may be the following factors:

• strict obedience to commanders and the need to carry out orders;
• constant wearing of a military uniform and the need to care for it;
• frequent trips to training grounds and shooting ranges;
• business trips, including to “hot spots” and areas with unfavorable climatic conditions.

Rationale

According to paragraph 65 of the Federal Law of 04/05/2013 N 44-FZ (as amended on 06/08/2020) “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (as amended and supplemented, entered. in force from 07/01/2020) in 2020, by agreement of the parties, it is possible to change the contract execution period, and (or) the contract price, and (or) the unit price of goods, work, services (in the case provided for in Part 24 of Article 22 of this Federal Law) , and (or) the amount of the advance (if the contract provides for the payment of an advance), if during its execution in connection with the spread of the new coronavirus infection caused by 2019-nCoV, as well as in other cases established by the Government of the Russian Federation, circumstances beyond the control of the parties to the contract arose, entailing the impossibility of its execution. The change provided for by this part is carried out if there is a written justification for such a change on the basis of a decision of the Government of the Russian Federation, the highest executive body of state power of a constituent entity of the Russian Federation, local administration (except for the case of changing the amount of the advance in accordance with this part) when making a purchase for federal needs , the needs of a constituent entity of the Russian Federation, municipal needs, respectively, and after the provision by the supplier (contractor, performer) in accordance with this Federal Law of security for the performance of the contract, if the change provided for by this part entails the emergence of new obligations of the supplier (contractor, performer) not secured by the previously provided security for performance contract, and the requirement to ensure the execution of the contract was established in accordance with Article 96 of this Federal Law when determining the supplier (contractor, performer).

In St. Petersburg, Methodological recommendations have been developed on the procedure for the application by customers of St. Petersburg of the provisions of Part 65 of Article 112 of the Federal Law of April 5, 2013 N 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs” (Order Committee for State Order of St. Petersburg dated May 19, 2020 N 127-r). Methodological recommendations determine the sequence of actions of the executive bodies of state power of St. Petersburg (hereinafter referred to as IOGV), as well as the state institutions of St. Petersburg subordinate to them (hereinafter referred to as subordinate institutions, hereinafter collectively referred to as customers) when the contract execution period changes in 2021 by agreement of the parties, and (or) the price of the contract, and (or) the price of a unit of goods, work, services (in the case provided for in Part 24 of Article 22 of Federal Law No. 44), if during its execution in connection with the spread of a new coronavirus infection caused by 2019-nCoV, and also in other cases established by the Government of the Russian Federation, circumstances beyond the control of the parties to the contract have arisen that make it impossible to fulfill it.

Clause 2.3 of the Methodological Recommendations establishes that changes to the contract are made if there is a written justification for such changes (hereinafter referred to as the Justification), prepared on the basis of a decision of the Government of St. Petersburg, adopted in the form of a resolution of the Government of St. Petersburg. The justification must contain a description of circumstances beyond the control of the parties to the contract that entail the impossibility of its execution in the current version, arising in connection with the spread of the new coronavirus infection caused by 2019-nCoV, as well as in other cases established by the Government of the Russian Federation.

According to paragraph 3.1 of the Methodological Recommendations, the development of a draft resolution of the Government of St. Petersburg (hereinafter referred to as the draft resolution) is carried out by the IOGV if there is a need to make changes, as provided for in Part 65 of Article 112 of Federal Law No. 44, to contracts concluded both by the IOGV itself and by subordinate institutions.

The development of the draft resolution is carried out on the basis of the following documents (clause 3.2 of the Methodological Recommendations):

• notification of the party to the contract, provided for by the terms of the contract and the provisions of the Civil Code of the Russian Federation, about the impossibility of fulfilling the contract due to the occurrence of circumstances beyond the control of the parties to the contract, provided for in Part 65 of Article 112 of Federal Law No. 44;
• consent of the parties to the contract to change its terms, provided for in Part 65 of Article 112 of Federal Law No. 44 (can be issued in a notification or in the form of a separate document);
• draft Justification (an approximate form is given in the appendix to these guidelines);
• a draft supplementary agreement to the contract, including a change in the terms of the contract provided for in Part 65 of Article 112 of Federal Law No. 44;
• copies of contracts subject to change, contract registry entry numbers;
• copies of the constituent documents of the parties to the contract;
• information on the balances of the limits of budget obligations for the corresponding target item of expenditure as of the current date.

According to paragraph 3.3 of the Methodological Recommendations, if there is a need to make changes to contracts concluded by subordinate institutions, the latter prepare and send to the IOGV with a covering letter the documents specified in paragraph 3.2 of these methodological recommendations.

After the adoption of the resolution of the Government of St. Petersburg, the parties to the contract draw up and sign an additional agreement to the contract (clause 4.1 of the Methodological Recommendations).

According to clause 4.2 of the Methodological Recommendations, information about changes to the contract indicating the changes made is subject to inclusion in the register of contracts and must be sent to the federal executive body exercising law enforcement functions for cash services for the execution of budgets of the budget system of the Russian Federation, within five working days from the date of the change to the contract .

Increasing the service life of contract workers

As a result of unfavorable changes in the economy and socio-demographic sphere, legislators are considering the issue of increasing the length of service to 25 years in calendar terms for all categories of military specialties.

This issue rests, first of all, on additional monetary support for contract service (the more a citizen serves, the more additional payments and benefits he has).

Another side of the discussion of this issue is the health status of young recruits and the costs of maintaining the health of people in adulthood.

What benefits and concessions does a contract employee receive?

Service after the end of the contract has some legal consequences. The state actively encourages its combat units, even those that go into reserve. A citizen who has served with 20 or more years of service can safely apply for an early pension, which is not lower than the national average.

Also, do not forget that during service a contract soldier can use public transport for free. There are even greater benefits for employees of the Far North - once a year, a soldier can travel for free to his vacation destination by plane, train or ship. Use your rights to the fullest.

Minimum terms of contract service in the army

The primary contract service agreement is concluded: • with citizens of the Russian Federation and foreign citizens who have expressed a desire to serve under a contract for a period of 2 to 3 years (Article 38 of the Federal Law, clause 3/a). The term is determined by the possible full-time position of a contract soldier who does not have an officer rank (soldier, sailor, sergeant, sergeant major); • a foreign citizen who has expressed a desire to serve under a contract with similar positions and titles will sign a contract for a period of 5 years; • the minimum contract period for service in the Russian army for citizens and foreign citizens who have the necessary education and are assigned to serve according to the staffing table for a position providing for the rank of warrant officer, midshipman, officer; the contract is concluded for 5 years; • the maximum period of military service under a contract is 10 years; • military personnel who have reached the age limit, but due to health reasons are able to serve, can, if they wish, enter into a permanent contract.

The term of service under the contract is calculated from the date of entry into force of the contract for military service.

According to Decree of the President of the Russian Federation N5 (clause 9, article 9), a mandatory deadline has been established for submitting a report on the desire of a serviceman to extend the contract. According to the law, a contract renewal report must be submitted to a higher-ranking unit commander no less than 4 months before the end of the current contract.

Answer

1. It is extremely difficult to give a definite answer to your question. There are no explanations from official bodies on the situation.

In our opinion, since the term of the collective agreement is changing, and changes in the collective agreement are subject to notification registration, accordingly, the lack of notification registration will be a violation. However, it should be noted that there is no judicial practice on bringing to administrative liability for failure to submit documents on the extension of a collective agreement for notification registration in the ConsultantPlus system.

2. In the opinion expressed by the Online Inspectorate (a division of Rostrud), the wording of the agreement specified in the question is unlawful; when extending the collective agreement, it is necessary to conclude an appropriate additional agreement.

On what day does a fixed-term employment agreement (contract) expire?

• Fixed-term employment agreement (contract) - on the last day of its validity (regardless of whether this day is a working day or a weekend).

For example, an employee's last day of contract is May 28, 2021 (Saturday). But the employer is obliged to issue the employee a work book and make final payments to him on the last working day, i.e. on Friday, May 27, 2021. In the dismissal order and work book, the date of dismissal of the employee is indicated as May 28, 2021 (Saturday), but the order itself and the entry in the work book will be dated May 27, 2021 (Friday).

• An employment contract concluded for the duration of a specific job - on the day the work is completed.
• An employment contract concluded for the duration of the duties of a temporarily absent employee, who retains his place of work - on the day before the main employee goes to work.
• An employment contract concluded for the duration of seasonal work - on the last day of the season.

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Imposing fines on management

There are situations when administrative penalties are applied to the employer (usually in the form of a fine). Even if a fixed-term employment contract was concluded correctly, legally correct, by mutual agreement of the parties. Reason for fines: frequent renewing of agreements to perform one job. If you are not satisfied with something, you can contact the labor inspectorate.

The Labor Inspectorate recognizes such contracts as indefinite, and a fine is imposed on the administration of the enterprise or state of emergency. A fixed-term employment contract does not require extension on a general basis, except for the points listed.

In other cases, the agreement becomes permanent immediately. Extension of an employment contract for a new term is not legally justified. Failure to take action on the part of the employer upon completion of the employment contract may result in administrative penalties.

Fixed-term employment agreement

During global and regional economic crises, the period of Western sanctions against Russia, the relevance of labor agreements has increased markedly. It is more profitable for the employer to use a fixed-term employment agreement. This arrangement of labor relations has become very popular.

It is much easier to fire an employee without compensation and other monetary payments according to the law. In case of dismissal according to the rules of a fixed-term contract, the worker is notified 3 working days in advance. An order is issued to terminate the employment relationship.

The minimum periods of employment are fixed in the contract, together with the conditions at the new workplace.

Despite the benefits of employment contracts in relation to the employer, there are a number of nuances that you need to know about in order not to violate the Labor Code of the Russian Federation.