On 24 March, 2022, the Law of Ukraine “On the Organization of Labour Relations in Martial Law” (hereinafter – the Law) entered into force. The Law provides a lot of restrictions on labour rights. Such restrictions will apply only during martial law. We propose to consider the adopted changes in detail.
A written labour agreement is not obligatory
During martial law the form of the labour agreement is determined by agreement of the parties.
It means that the parties of labour relations are not obliged to enter into a written labour agreement in cases as required by law in peacetime (for example, when hiring minors or when concluding a labour agreement with an individual entrepreneur). Now in order to hire an employee it is enough to issue an appropriate order and notify a tax service. It is important that such simplified procedure should take place with the consent of the employee.
Probation period for everybody
In peacetime it is forbidden to establish probation for certain categories of employees, for example, minors, pregnant women, single mothers who have a child under the age of fourteen or a child with a disability, etc., on probation.
According to the Law when concluding a labour agreement during martial law the employer has a right to establish probation to any employee.
Fixed-term labour agreements
As a result of hostilities lots of employees have evacuated to different places or gone abroad, some have no contact and others are on a leave or a sick leave.
To avoid staff shortages employers have the opportunity to enter into fixed-term labour agreements with new employees for the period of martial law or for the period of replacement of a temporarily absent employee.
That is labour relations with absent employees are not terminated but for the period of their temporary absence an employer can enter into a fixed-term labour agreement with another employee.
Transfer and change of working conditions “day to day”
The legislator has simplified the procedure for transferring employees to another work if it is necessary to prevent or eliminate the consequences of hostilities or life-threatening circumstances. Thus during martial law it is not necessary to obtain the consent of the employee for such transfer. At the same time it is important that the work to which the employee is transferred should not be contraindicated to his/her health.
Also it is forbidden to transfer the employee to work in the zone of active hostilities without his/her consent.
Regarding the salary it must be not less than the average salary for the previous work of the employee.
The procedure for changing essential working conditions has also been simplified. During the war it is not necessary to notify the employee of such change in advance. In fact this rule allows the employer to change essential working conditions on the “day to day” basis.
It should be reminded that essential working conditions are, for example, the system and amount of salary, benefits, working hours, the establishment or abolition of part-time work, combining professions, etc.
It should be noted that regardless of the need to notify the employee a change of essential working conditions should occur if there are both legal and factual grounds.
Special conditions for dismissal
It is important that the Law does not establish new grounds for dismissal. This means that the termination of employment during the war is possible only on general grounds defined by the Labour Code of Ukraine. As before, an employee may be dismissed on his own initiative, with the consent of the parties or at the initiative of the employer (for example, due to staff reductions).
At the same time, the Law provides peculiarities of termination of the labour agreement at the initiative of the employee. From now on due to hostilities in the area of the employer’s location and the threat to the life and health of the employee, such an employee may terminate the labour agreement on his own initiative on the “day to day” basis without a two-week notice. However, this rule does not apply to employees who are forcibly involved in socially useful work in wartime, as well as the work on critical infrastructure.
Also, during martial law it is not required to ask for the consent of the trade union to dismiss an employee on the grounds of staff reductions, systematic non-performance of employment obligations, absenteeism, etc. However, the requirement to obtain the trade union’s consent to dismiss employees elected to trade union bodies remains.
Suspension of employment
The law provides for the possibility of suspending the labour agreement. For the period of such suspension, the employer ceases to provide the employee with work and the employee is released from the obligation to perform work under the labour agreement. Accordingly, the employer is also not obliged to accrue and pay salary for the period of suspension of employment.
It is important that the labour agreement may be suspended due to the complete impossibility of the employer to provide and of employee to perform work due to military aggression against Ukraine. The employer and the employee should, if possible, inform each other about the suspension of the labour agreement in any available way.
Suspension of the labour agreement does not entail termination of employment.
The law stipulates that the reimbursement of wages and all payments prescribed to employees for the period of suspension of the labour agreement is fully entrusted to the state, which carries out military aggression. However, the procedure for such compensation has not been provided yet.
Increase of working hours
In peacetime, working hours can not exceed 40 hours per week. For the period of wartime, this number is increased to 60 hours per week. The Law has also increased the reduced working hours to 50 hours per week. The employer independently determines the start and the finish of worktime on the daily basis.
Additionally, during the war, the worktime does not get reduced prior to the holidays, non-working days and at night.
Also, the work on weekends is no longer prohibited. In this occasion, compensation for the work in the day off in not applied. This means that there will be no double payment or additional day off for work on the weekend.
The ban on bringing pregnant women, women with a child under the age of one and the disabled to work at night has been partially lifted. If said workers agree, they may be involved to nightshifts.
Similarly, with the consent of women (except for pregnant women and women with a child under the age of one), they may be involved in heavy, underground and hazardous or unsafe work.
Delay in salary payment
No decrease in the amount of salary due to the martial law is provided by the Law. That means, that if an employee works, he must be paid a salary in accordance with the terms of his employment contract.
In this case, if due to ongoing warfare or force majeure the employer can not pay the salary, its payment may be delayed. It is important that in the event of an inspection, the employer will have to prove that it was the war or force majeure that caused such a delay. Only in such circumstances the employer will not be fined for violating the terms of payment of wages. At the same time, the Law obliges the employer to pay salaries to employees as soon as the company resumes operations.
It should be noted that during martial law, the employer may, on its own initiative, suspend any provisions of the collective agreement, such as the payment of bonuses or additional compensation.
Reduction of the rest time
During martial law, the weekly day offs may be reduced to 24 hours per week. Additionally, the ban on work during the holidays and non-working days is lifted. Due to this, weekends that coincide with holidays or non-working days are not transferred to other days.
At the same time, employees have the right to go on annual paid leave for 24 calendar days or other leave during the war. In turn, the employer may refuse to grant leave if the employee works at critical infrastructure. However, in any case, the employer has no right to refuse maternity leave and childcare leave until the child reaches the age of three.
In addition, the employee can take unpaid leave for the entire period of martial law. Note that such leave is granted only at the request of the employee. The employer has no right to send an employee on unpaid leave by his own initiative or by force.
Thus, the Law has changed the regulation of labour relations during the war. However, the application of new rules, which restrict the labour rights of employees, remains to be the right rather than the responsibility of the employer. For example, under the new Law, employers can both increase working hours and reduce rest time, or continue to work with no changes if possible.
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