Fixed-term employment agreement in Turkmenistan: theory and practice

The Labor Code of Turkmenistan (hereinafter referred to as the Labor Code) distinguishes two types of employment agreements, one of which is a fixed-term employment agreement. Labor legislation does not define a fixed-term employment agreement. Under article 18, paragraph 2, of the Labor Code, a fixed-term employment agreement is concluded when the employment relationship is not permanent or cannot be established for an indefinite period of time, taking into account the nature of the work to be performed or the conditions under which it is to be performed. In addition, there is an exhaustive list of grounds for concluding a fixed-term employment agreement, as set out in article 18 (3) of the Labor Code, on which it may be concluded.

A fixed-term employment agreement may be concluded:

1. to replace a temporarily absent worker for whom the place of work is retained;
2. for fixed-term work to prevent accidents, disasters, epidemics, epizootics or to eliminate the consequences of these and other emergencies; 
3. with persons sent to work abroad; 
4. for the period of temporary (up to two months) work, as well as seasonal work, when due to natural conditions the work can be performed only during a certain period of time (season); 
5. with persons entering work at enterprises located in areas with difficult or special climatic conditions (waterless, desert), if it is connected with travelling to the place of work; 
6. with persons entering employment with employers - small business entities, as well as with employers - individuals; 
7. to carry out work that goes beyond the normal activities of the enterprise (reconstruction, installation, commissioning and other works), as well as to carry out work related to a deliberately temporary (up to one year) expansion of production or the volume of services provided; 
8. with persons employed at enterprises established for a known definite period of time or for the performance of a known definite work; 
9. with persons hired to perform a known definite work in cases when its performance (completion) cannot be determined by a specific date; 
10. for work directly related to internship and vocational training of an employee; 
11. with persons who are full-time students, with the consent of the head of the relevant educational institution; 
12. with persons working at the given enterprise on a part-time basis; 
13. with old-age pensioners, as well as with persons who, for health reasons, are allowed to work only on a temporary basis in accordance with a medical report; 
14. with creative workers of mass media, cinematography organizations, theatres, theatrical and concert organizations, circuses and other persons involved in the creation and (or) performance of works, professional athletes;
15. with scientific, pedagogical and other employees who have concluded employment agreements for a certain term as a result of a competition; 
16. in case of election for a certain period of time to an elected body or to an elective office for paid work, as well as entry to work related to the direct support of the activities of members of elected bodies or officials in public authorities and local self-government bodies, as well as in political parties and other public associations; 
17. with persons sent for temporary work by the state employment agency (service), including public works; 
18. with managers, deputy managers and chief accountants of enterprises, regardless of their organizational and legal form and form of ownership.

The Labor Code does not establish a minimum term for which an employment agreement may be concluded, but it does provide for a maximum term, as stated in the article 18(1)(2) of the Labor Code, a fixed-term employment agreement is concluded for a fixed term, but not more than five years. There are also exceptions to this rule, for example, when workers are hired for temporary work (up to two months) and seasonal work (up to nine months), when, due to natural conditions, work can be performed only during a certain period of time (season), or for work related to a deliberately temporary (up to one year) expansion of production or the scope of services provided (article 18, paragraphs 4 and 7, part 3, paragraph 3, of the Labor Code). If the term is not stipulated in the employment agreement at the time of its conclusion, the employment agreement is considered to be concluded for an indefinite period. The term of the fixed-term employment agreement may be determined either by a specific date or, in some cases, by events (Article 18(3) and 48(2) of the Labor Code), for example, when an Employee leaves childcare leave and a new Employee is hired to fill the position.

Under article 18, paragraphs 6 and 7, of the Labor Code, an employment agreement concluded for a fixed term is considered to be concluded for an indefinite period if there are insufficient grounds for it, as established by the body exercising State supervision and control over compliance with labor legislation or by a court. It is prohibited to conclude fixed-term employment agreements for the purpose of avoiding the rights and guarantees provided for workers with whom an employment agreement is concluded for an indefinite period of time.

For example, it is prohibited to conclude a short-term fixed-term employment agreement in order to avoid granting rights to labor leave, etc.

If the Employee disputes the fixed-term nature of the employment agreement, it is necessary to check whether there were grounds for concluding a fixed-term employment agreement as stipulated in Article 18(3) of the Labor Code. When hiring an Employee under a fixed-term employment agreement, the employer must justify why it is impossible to hire the Employee on a permanent basis. It is extremely important to specify in the employment agreement itself not only the term, but also the basis on which it is concluded.

In a number of cases, a fixed-term employment agreement may be reclassified as open-ended also for other reasons provided for in Article 18(6) of the Labor Code. Such cases include mistakes made when drafting the contract, as well as procedural errors. One of the most common mistakes is the failure to notify the Employee properly of the termination of a fixed-term employment agreement, as a result of which the Employee actually continues the employment relationship.

The Employee has the right to terminate a fixed-term employment agreement on his/her own initiative before the expiry of its term by giving two weeks' written notice to the employer. If the fixed-term employment agreement is terminated on the Employer's initiative, the Employer is obliged to notify the employee in writing (against signature) of its intention to terminate the employment agreement no later than two weeks before the expiry of the fixed-term employment agreement. Upon agreement between the employee and the employer, the notice of termination of the fixed-term employment agreement on the employer's initiative may be replaced by monetary compensation in the amount of the average wage corresponding to the duration of the notice period.

Under article 18 (5) of the Labor Code, if neither party has requested the termination of a fixed-term employment agreement due to the expiry of its term and the employee continues working after the expiry of the employment agreement, the employment agreement is considered to be concluded for an indefinite period. The Labor Code does not contain a provision allowing the parties to extend the term of an employment agreement. A common mistake in practice is that the Employer concludes an agreement to extend the term of the employment agreement, which in our opinion is a violation of this provision. In some cases, Employers, in order to avoid violations of the application of this provision, systematically renegotiate an employment agreement concluded for a short period of time (less than five years, often contracts are concluded for a year) with the Employee by dismissing him/her and re-employing him/her for the same period of time, repeating this procedure many times, which in our opinion is also a mistake. We believe that the practice of endlessly renegotiating employment agreements for a new term violates the rights of Employees. For example, the conclusion by Employers of fixed-term employment agreements when the position and nature of work does not require it is a direct violation of labor law. For example, if an employee is hired as an in-house lawyer, the work itself implies the conclusion of an employment agreement for an indefinite period, or sometimes Employers, in order to verify sufficient qualifications, incorrectly apply the wording on hiring for a fixed term instead of stating that the employee is hired for a probationary period.

To summarize, practically speaking, fixed-term employment agreements are quite often used by Employers. Since not all Employers need Employees on a long-term basis, as they cannot predict economic conditions, business development rates and the profit to be made.

However, there are also cases of abuse by Employers who unreasonably apply this form of employment relations with employees for work of a permanent nature, as it allows the Employer to terminate the contract at the end of its term. In most cases, the Employee agrees to conclude a fixed-term employment agreement due to a lack of other options. In such cases, it is seen in practice that working under a fixed-term employment agreement without a legal basis has a negative impact on the Employee's stability, i.e., the Employee cannot be sure of the duration of his/her work, as the contract may not last. If the Employer does not want to renew the contract, the Employee cannot demand its continuation, the contract is simply terminated and the Employer is not obliged to provide alternative work. In this regard, we believe that there is a need to enshrine the employee's pre-emptive right to conclude an employment agreement for a new term in comparison with other applicants for a vacant position, as well as to allow the extension of such a contract with the preservation of its fixed-term nature.