LABOR ISSUES

Labor relations during martial law

On 15 March 2022, the Parliament of Ukraine adopted the Law No. 2136-IX “On Organization of Labor Relations during Martial Law” (hereinafter – the Law), which defines the peculiarities of labor relations of employees of all enterprises, institutions, organizations in Ukraine regardless of ownership, type of activities as well as persons working under an employment agreement with individuals, during martial law imposed in accordance with the Law of Ukraine “On the Legal Regime of Martial Law”.

The Law stipulates that restrictions on the constitutional rights and freedoms of individuals and citizens shall be introduced for the period of martial law in accordance with Articles 43 and 44 of the Constitution of Ukraine.

Article 2 of the Law provides for the peculiarities of concluding an employment agreement during martial law:
during martial law, parties can determine the form of an employment agreement;
when concluding an employment agreement during martial law, the condition of probation of an employee nt may be established for any category of employees;
to promptly recruit new employees, as well as to eliminate staff shortages and labor shortages, in particular, due to the actual absence of employees who were evacuated to another area, are on vacation, temporarily incapacitated or whose location is temporarily unknown, an employer may enter into fixed-term employment agreements with new employees during martial law or for the period of replacement of a temporarily absent employee.
                                        
Article 3 of the Law provides for the transfer of an employee and change of significant working conditions: during martial law an employer has the right to transfer an employee to another job not stipulated in the employment agreement without their consent (except for transfer to another location where active hostilities continue), if such job is not contraindicated for the employee due to their health condition, only to prevent or eliminate the consequences of hostilities, as well as other circumstances that pose or may threaten the life or normal living conditions of people, with remuneration not lower than the average salary for the previous job; during martial law, the provisions of Article 32 (3) of the Labor Code of Ukraine and other laws of Ukraine regarding the notification of an employee about a change in significant working conditions do not apply.

According to Article 5 of the Law due to hostilities in areas where an enterprise, institution, organization is located and the threat to life and health of employees, an employee may terminate an employment agreement on its own initiative within the period specified in his letter of resignation (except for cases of forced involvement in socially useful work during martial law, involvement in work on critical infrastructure objects).
 
With regard to the procedure for dismissal of employees during martial law – Article 6 of the Law defines the peculiarities of termination of an employment agreement on an employer’s initiative: during martial law may it is allowed to dismiss an employee on an employer’s initiative during an employee’s temporary incapacity, as well as during an employee’s vacation (except for maternity leave). In this case the date of dismissal is the first working day following the day of the end of the temporary incapacity or the end of the vacation. In addition, during martial law, the provisions of Article 43 of the Labor Code of Ukraine do not apply, except cases of dismissal of employees of enterprises, institutions or organizations elected to trade union bodies.
 
Article 6 of the Law defines the peculiarities of establishing and accounting for working time and rest time:
normal working hours of employees during martial law may not exceed 60 hours per week;
for employees who have reduced working hours, working hours may not exceed 50 hours per week;
a five-day or six-day working week is set by an employer at the decision of the military command together with the military administrations (in case of their formation);
time of the beginning and end of daily work (shifts) is determined by an employer;
duration of weekly uninterrupted rest can be reduced to 24 hours;
during martial law, the provisions of Article 53 (duration of work on the eve of holidays, non-working days and weekends), Article 65 (1), Article 67 and Articles 71-73 (holidays and non-working days) of the Labor Code of Ukraine do not apply.

At the same time, Article 10 of the Law stipulates that remuneration is to be paid to employees on the terms specified in employment agreements. An employer must take all possible measures to ensure the realization of the right of employees for remuneration on time. An employer shall be released from liability for breach of obligations regarding remuneration, if he proves that the breach happened due to hostilities or other force majeure circumstances. Exempting an employer from liability for paying late remuneration does not release him from the obligation to pay remuneration. In case of impossibility of timely payment of remuneration due to hostilities, the term of payment of remuneration may be postponed until the resumption of an enterprise activity.

With regard to vacations – during martial law, the annual basic paid vacation is provided to employees for a period of 24 calendar days. During martial law, an employer may refuse to grant an employee any type of vacation (except for maternity leave), if such an employee is involved in work on critical infrastructure objects. During martial law, an employer may, at the request of an employee, grant them unpaid vacation without limitation of the period established by Article 26 (1) of the Law of Ukraine “On Vacations”.
 
Among other things, Article 13 of the Law establishes the possibility of suspending an employment agreement. In particular, an employment agreement may be suspended due to military aggression against Ukraine, which excludes the possibility of providing and performing work. Suspension of an employment agreement does not entail termination of employment. Reimbursement of remuneration, compensation payments to employees for the period of suspension is entrusted in full to the state, which carries out military aggression against Ukraine. 

In addition, the Law defines the peculiarities of the organization of personnel records and archival storage of personnel documents, night work, involvement of certain categories of employees, trade unions, certain provisions of the collective agreement and more.
 
Article 42 of the Law of Ukraine “On Employment” provides that employers have the right to employ foreigners and stateless persons in Ukraine on the basis of a permit issued by the territorial bodies of the central executive body implementing state policy in the field of employment and labor migration (regional employment centers). To obtain a permit (extension of a permit), an employer submits an application and a set of documents to the regional employment center. During martial law, an employer’s application for the issuance and extension of a permit may be submitted by any means of communication including electronic.

On 19 July 2022, Law of Ukraine No. 2352-IX “On Amendments to Certain Legislative Acts of Ukraine on Optimizing Labor Relations” entered into force. Law No. 2352-IX introduces innovations related to working conditions during martial law, and makes changes that will remain in force after the end of the war. Basic provisions of Law No. 2352-IX are the following:

1. Law No. 2352-IX cancels the requirement for the employer to provide employees called up for military service with the average salary (Art. 119 of the Labor Code of Ukraine). From now on, the employer only has to keep the place of work and the position of such an employee.

2. Law No. 2352-IX provides new grounds for dismissal of employees, in particular:
employee’s absence from work and lack of information about the reasons for such absence for more than 4 months in a row (Art. 36(1) of the Labor Code of Ukraine);
impossibility to provide employees with work specified in the employment agreement due to destruction (absence) of production, organizational and technical conditions, means of production or property of the employer as a result of hostilities (Art. 41(1) of the Labor Code of Ukraine).

3. Law No. 2352-IX clarifies that suspension of the employment agreement is possible in connection with armed aggression against Ukraine that excludes the possibility of both sides of the employment relationship to fulfill obligations stipulated in the employment agreement.

4. Law No. 2352-IX establishes the possibility of carrying out scheduled and unscheduled State Labor inspections during martial law. However, during martial law, in case of full implementation within the prescribed period of prescriptions on elimination of violations discovered during unplanned measures of state supervision (control), the fines provided for in Art. 265 of the Criminal Code, does not apply.

5. Law No. 2352-ХХ allows to familiarize employees with the employer’s documents concerning their rights and obligations, using the means of electronic communication with an improved electronic signature or a qualified electronic signature, if this is provided for in the employment agreement (Art. 29(3) of the Labor Code of Ukraine).

6. Law No. 2352-IX specifies that during martial law, despite the absence of the obligation to notify about changes in essential working conditions at least 2 months in advance, the employer shall notify employees about such changes in any case no later than before the introduction of such changes (Art. 3(2) of the Law of Ukraine “On the Organization of Labor Relations in the Conditions of Martial Law”).

7. Law No. 2352-IX introduces some clarifications regarding increase in normal working hours. In particular, normal duration of working hours can be increased up to 60 hours per week only for employees employed at critical infrastructure facilities (in the defense sector, the sphere of ensuring the livelihood of the population, etc.). However, reduced working hours may not exceed 40 hours per week during martial law.

8. Law No. 2352-IX provides for a new type of leave for persons who have been forced to change their place of residence. During martial law, an employee who has left the territory of Ukraine or acquired the status of an internally displaced person may apply for a leave for a period of up to 90 days, and the employer is obliged to grant such leave.