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14 січня 2013

Три пункти, які слід врахувати, при укомплектуванні персоналом компанії в Україні

Автор: Вадим Самойленко
Джерело: Panorama. – 2013. – #1. – Січень

Статтю можна прочитати нижче мовою оригіналу.

Three Points to Consider On Staffing Your Business in Ukraine

One of the main business attractions of Ukraine is the country's well-educated, skilled and hardworking population. This appeal is further enhanced by the weakness of trade unions, a high ratio of young professionals on the job market and the relatively inexpensive labour force in this strategically positioned European country. For example, one of our clients bought a plant in Western Ukraine and transferred there production of electronic devices for some world-class brands. Previously, the client manufactured them in... China. The commercial reasons for the transfer were better product logistics from/ to European suppliers/customers and... cost-effective and qualified labour.

It should be noted, however, that Ukrainian labour law still contains some remnants from the Soviet era and, generally, is paternalistic to employees. Though reforms in this area are underway, employers should be legally cautious and observe formalities when hiring or dismissing, compensating or disciplining, or taking other actions with respect to their employees. Also, a certain pro-employee bias may be observed in Ukrainian counts adjudicating labour disputes.

Nevertheless, law and practice offer various creative solutions for companies to engage and retain happy and productive personnel while avoiding employment conflicts and costly litigation. Let me kindly offer you some ideas that may help you to build a loyal and efficient staff for your business.

Top Manager Employment

The employment of a trusted top-manager is a matter of utmost importance, especially given the immature doctrine of fiduciary duties and broad powers granted to company executives in Ukraine. Therefore, it is highly recommended to conclude a detailed and well thought out Employment Contract (the "Contract") with a top manager, e.g., Director, General Director, Head of Management Board of a company. Compared to a general Employment Agreement normally made with an employee in Ukraine, the Contract - being a special form of such an agreement - may provide for certain company economic/ individual performance targets for the manager, upon which his/her compensation or even employment with the company are pegged on, and for additional grounds for terminating the Contract at the employer's initiative. In the case of the Employment Agreement, the legal grounds for employee dismissal are strictly limited to those specified in the Labour Code of Ukraine. By contrast, the Employment Contract may provide for termination of the manager's employment with the company immediately upon his/her dismissal from the office by the shareholders meeting or by the supervisory board of the company (depending on the company type).

The Contract may be concluded only with employees holding top offices, which are expressly specified by law. For example, a Limited Liability Company may enter into the Contract only with a top-manager (General Director, chairing the executive board - Directorate, or Director, acting as the sole executive body). A Joint Stock Company should conclude the Contracts with each of its executive board members.

Foreigner Employment

A non-resident individual (the "Foreigner") may be engaged by a Ukrainian company under an Employment Agreement/Contract with the Foreigner or a Secondment Agreement with an overseas employer of the Foreigner. In the last scenario, the Foreigner formally remains an employee of the provider company, but is transferred to the Ukrainian company to perform certain works or services on a permanent or temporary basis.

In both cases, prior to the Foreigner's actual starting in Ukraine, the Ukrainian company should obtain for the Foreigner an Employment Permit from the local branch of the State Employment Service of Ukraine. The usual term of the Employment Permit is 1 year, and the maximum possible for certain employee categories - 3 years.

Furthermore, to legally stay in Ukraine, the Foreigner should obtain a special work-type visa in a Ukrainian consulate abroad. After entering the country under such a visa, based on the visa, the Foreigner should obtain a Residence Permit from, and register his/her place of residence in Ukraine with, the local department of the State Migration Service of Ukraine.

Alternative Engagement of Staff

Apart from direct employment, a company may benefit from alternative forms of staff engagement such as personnel outsourcing, leasing and outstaffing.

Outsourcing is popular among fast-growing companies concentrating on key operational processes and willing to transfer auxiliary functions to companies specialising in such areas. The customer and provider companies conclude a Services Agreement whereby the provider undertakes to cover the agreed activity areas of the customer, for example, accounting, legal, HR, or IT. Respective services are rendered by the provider employees subordinated to the provider only. As a rule, the customer doesn't intervene with the designated employee selection by the provider and the process of their work, but rather controls the services' result only.

Under a personnel leasing scheme, the provider transfers to the customer the agreed professionals to perform certain work. In the process, such specialists remain formally employed by the provider, but may be actually subordinated to the customer. Such a staff engagement option has a number of advantages over usual employment. Indeed, the customer has much more flexibility in changing personnel without the need to comply with stringent requirements of labour law on employee dismissal. Also, the customer doesn't waste time finding substitutes for those dismissed. All these and other personnel administration functions as well as labour law exposure are the responsibility and risk of the provider.

Personnel outstaffing resembles personnel leasing, but is structured in two stages. Firstly, by agreement of all parties involved, a customer's staffer's employment is terminated with simultaneous hiring of such a professional by the provider. Secondly, such a newly-hired employee is dispatched by the provider to the customer on the personnel leasing basis described above. This kind of personnel engagement relieves the customer from labour law compliance and exposure burden, but, obviously, it requires the full trust and cooperation of the employee.

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