Україна намагається запровадити спеціальне трудове законодавство на період воєнного стану
Автор: Інеса Летич
Джерело: Lexology, 18 березня 2022 р.

On 24 February 2022, the President of Ukraine by Decree No. 64/2022 declared martial law in Ukraine as a response to Russian invasion. The initial duration of martial law is 30 days, however, as of today it is expected to be extended for al least another 30 days. Martial law implies limitation of certain constitutional rights, inter alia, the right to work and the right to rest.

To implement these limitations, on 15 March the parliament of Ukraine adopted the Law "On Organizing of Employment Relations During Martial Law" (the "Law"). The Law is not in force yet, as it awaits for the signature of the President and official publication. Nevertheless, as enactment of the Law appears to be a matter of a couple of days, it is worth reviewing its main provision based on the currently available text.

The Law introduces certain limitations of labour and employment rights and envisage specific regulation for some aspects of employment relations. The said act will be in force only during martial law and will cease to exist after the termination of the latter.

Suspension of employment agreements and CBAs

Employers may suspend employment agreements with their employees for the reasons, triggered by the military aggression. They will not have an obligation to render work to employees and pay salaries or provide other employment benefits. The Law provides that the obligation to pay salaries and other employment-related payments will rest with the Russian Federation.

Likewise, employers may suspend certain provisions of collective bargaining agreements, for instance, those related to certain benefits or extra payments.

Termination of employment

The Law envisages special relaxed rules for unvoluntary termination of employment but only for those entities that face liquidation in view of destruction of all their facilities or property due to army actions. Such employers will be able to dismiss employees with 10 days' notice and payment of a severance of one monthly salary. Current limitations on prohibitions of dismissals during an employee's sick leave or vacation would not apply.

In return, employees who work in territories that suffer from military actions would be entitled to resign voluntarily without any notice period (usually, two weeks' notice period applies to voluntary resignations in Ukraine). However, this rule would not apply if employee is involved into performance of socially useful works in connection with the military actions or works at an object of critical infrastructure, for example, a hospital.

Temporary and verbal employment agreements

The Law allows employers to enter into temporary employment agreements for the duration of martial law or to replace a temporary absent employee (e.g., an employee who fled the territory of location of the entity or who is unavailable for unknown reasons).

The parties may execute verbal employment agreements, if they so agree, irrespective of the category of the employee. Employers are also allowed to set probation for all employees, whom they hire during martial law.

Temporary transfer of employees and change of essential work conditions

Employers may temporarily transfer employees to other job without the employee's consent, if this is necessary to prevent or extinguish consequences of army actions or other related matters. However, it is not allowed to transfer employees to territories, where active army action currently take place (e.g., Kyiv Region).

Also, during martial law, the usual two-weeks' notice period for change of essential work conditions by employers does not apply.

Extended working day and limited time of rest

The Law stipulates that during martial law the normal duration of working week may be 60 hours instead of common 40 hours. Employers would have a right to establish five- or six-days working weeks and establish specific time of beginning and end of workday.

Weekly time of rest may be limited to 24 hours. Also, the provisions of the Labour Code on public holidays would not apply during martial law. In addition, employers are authorized to refuse to provide leaves to employees who work at the objects of critical infrastructure (except for maternity and parental leaves).

Suspension of guarantees for women and employees with children

The Law allows involving women to heavy and underground works, as well as works with dangerous and harmful conditions, except for pregnant women or those who have a child below one year of age. The Law also suspends certain restrictions regarding overtime, night, weekend and holiday works and business trips of employees with small children.

Payment of salary and unpaid leaves

Employers (except for those that suspend employment agreements) shall continua paying salaries. However, if an employer is affected by military actions, it may suspend payment of salary and repay relevant amounts later.

Upon agreement with employees, latters may take unpaid leaves for the whole duration of martial law.

Trade union rights

The Law also limits certain rights of trade unions. Specifically, employers do not need to seek for consent of a trade union before dismissal of a trade union member, unless relevant employee is a member of the trade union management. Also, employers may suspend financial contributions for trade unions' activities.

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