Military actions on the territory of Ukraine fundamentally changed the usual way of life of millions of citizens. This did not escape the sphere of labor relations, where new realities forced employers and employees to quickly adapt to unpredictable conditions. From the evacuation of businesses to forced unemployment, labor rights during the war became a hotly debated topic. Changes in legislation are critical to ensuring fair working conditions, despite the fact that the situation in the country remains unstable.
Lawyers of the “Repeshko and Partners” Bar Association commented on the peculiarities of labor relations in wartime conditions.
The difficulties of labor relations lie in the fact that a large part of the territory of Ukraine is either occupied, or on the territory of which active hostilities are taking place, or such may arise. In connection with these circumstances, Ukrainians change the location of enterprises and organizations, as well as their place of residence, looking for safer places to work and live. Understanding the urgency of current changes to legislation, the Law of Ukraine “On the Organization of Labor Relations in Martial Law” was adopted on March 15, 2022. It, like other legal documents, provides for the following aspects.
Peculiarities of hiring
During martial law:
- the parties, by agreement, determine the form of the employment contract (the form of the employment contract can be both oral and written);
- when concluding an employment contract, passing a test upon hiring may be established for any category of employees;
- employers can conclude fixed-term employment contracts with new employees for the period of martial law or for the period of replacing a temporarily absent employee (with the aim of quickly involving new employees in the performance of work, as well as eliminating personnel shortages and labor shortages, including due to the actual absence of employees, who, as a result of hostilities, were evacuated to another area, are on vacation, idle, temporarily disabled, or whose fate is temporarily unknown);
- an employee may not be allowed to work without concluding an employment contract drawn up by an order or decree of the employer, and a notification to the central executive body on matters of ensuring the formation and implementation of the state policy on the administration of a single contribution to the mandatory state social insurance on the acceptance of the employee in order , established by the Cabinet of Ministers of Ukraine.
Change in essential working conditions
During the period of martial law, the employer has the right to transfer the employee to another job that is not stipulated by the employment contract, without his consent (except for transfer to another area where active hostilities are ongoing), if such work is not contraindicated for the employee due to his state of health. me, only to avert or eliminate the consequences of hostilities, as well as other circumstances that pose or may pose a threat to people’s lives or normal living conditions, with wages for work performed not lower than the average wage for previous work.
It should be noted that during martial law, the provisions of Article 32 of the Labor Code of Ukraine regarding the two-month warning period of an employee about a change in essential working conditions do not apply. The notification of the employee about the change in the essential working conditions and the change in the payment conditions shall be carried out no later than before the introduction of such conditions.
Termination of the employment contract at the initiative of the employee
Nothing has changed for the general public in the procedure for dismissing an employee at his own will. The law established an exception for a single case – in connection with the conduct of hostilities in the areas where the enterprise, institution, organization is located, and the existence of a threat to the life and health of the employee, he can terminate the employment contract on his own initiative within the period specified in his statement (except for cases of forced involvement in socially beneficial works under martial law, involvement in the performance of work on critical infrastructure facilities).
To determine such territories, the order of the Ministry on Reintegration of the Temporarily Occupied Territories of Ukraine dated December 22, 2022 should be used. No. 309 “On approval of the List of territories on which hostilities are (were) conducted or temporarily occupied by the Russian Federation”. It is in it that the list of territories where hostilities have occurred, or may occur, is constantly updated.
Termination of the employment contract at the initiative of the employer
During the period of martial law, it is allowed to dismiss an employee at the initiative of the employer during the period of temporary incapacity for work, as well as during the period of the employee’s vacation (except for leave due to pregnancy and childbirth and leave to take care of a child until the child reaches the age of three) with an indication of the date dismissal, which is the first working day following the end of the temporary incapacity for work specified in the document on temporary incapacity for work, or the first working day after the end of the vacation.
During the period of martial law, the norm Article 43 The Labor Code of Ukraine (termination of the employment contract at the initiative of the employer with the prior consent of the elected body of the primary trade union organization (trade union representative) does not apply, except in cases of dismissal of employees of enterprises, institutions or organizations elected to trade union bodies.
An employer cannot dismiss an employee on the grounds of martial law or the location of the enterprise in a zone of active hostilities. But if the employer cannot provide the employee with the work specified in the employment contract, in connection with the destruction (absence) of production, organizational and technical conditions, means of production or the employer’s property as a result of hostilities, then this is a reason for terminating the employment contract at the initiative of the employer under clause 6 h. 1 st. 41 of the Labor Code of Ukraine. In this case, the contract is terminated if it is not possible to transfer the employee to another job with his consent. In this case, the employee is paid severance pay in the amount of at least the average monthly salary.
Dismissal of employees on this basis is hereby carried out in the following manner:
- about dismissal of employees must be personally notified no later than 10 calendar days in advance;
- no later than 10 calendar days before the planned dismissal of employees, the primary trade union organizations are provided with information on these measures, including information on the reasons for the dismissal, the number and categories of employees who may be affected, and the timing of the dismissal;
- in the event that the release of employees is mass in accordance with Art. 48 of the Law of Ukraine “On Employment of the Population”, the employer notifies the state employment service of the planned layoff 10 calendar days before the layoff, and also, within five calendar days, conducts consultations with trade unions on measures to prevent layoffs or reduce their number to a minimum or mitigating the adverse effects of any layoffs.
There are rare cases when an employer requires an employee to write a voluntary resignation letter, sometimes citing the fact that the company is in a war zone. We would like to note that voluntary dismissal is called “voluntary” because the initiative comes from the employee, not the employer. Therefore, there can be no voluntary dismissal at the initiative of the employer.
In that case, if the enterprise is really located in the war zone and it is not possible to organize its work, the employer can take the following actions:
- implement work in a remote format. According to Article 60-2 KZpP of Ukraine remote work is a form of work organization in which the work is performed by the employee outside the workplace or the employer’s territory, in any place of the employee’s choice and using information and communication technologies;
- organize homework. Home work is a form of work organization in which the work is performed by the employee at his place of residence or in other premises determined by him, characterized by the presence of a fixed area, technical means (main production and non-production assets, tools, devices, inventory) or their combination, necessary for the production of products, the provision of services, the performance of works or functions provided for by the founding documents, but outside the employer’s production or working premises (Article 60-1 KZpP of Ukraine);
- at the request of employees, to grant them vacations, including without salary;
- to issue a shutdown of the enterprise through no fault of the employee;
- suspend the employment contract.
Suspension of the employment contract
The very suspension of the labor contract is a certain wartime innovation. It provides for the temporary termination by the employer of providing the employee with a job and the temporary termination of the employee’s performance of the work under the concluded employment contract in connection with armed aggression against Ukraine, which excludes the possibility of both sides of the employment relationship to fulfill the obligations stipulated in the employment contract
The suspension of the employment contract can be carried out at the initiative of one of the parties for a period no longer than the period of martial law. In the case of a decision to cancel the suspension of the employment contract until the termination or cancellation of martial law, the employer must notify the employee of the need to start work 10 calendar days before the resumption of the employment contract.
It should be understood that the suspension of the employment contract does not entail the termination of employment relations. It is drawn up by an order (order) of the employer, in which, in particular, information on the reasons for the suspension, including the inability of both parties to fulfill their duties and the method of information exchange, the period of suspension of the employment contract, the number, categories and surnames, name I, patronymic (if available), registration number of the taxpayer’s registration card or series and passport number (for individuals who, due to their religious beliefs, refuse to accept the registration number of the taxpayer’s registration card and have notified the relevant supervisory authority and have a mark in passports) of the relevant employees, the conditions for the renewal of the employment contract.
The employer submits an order (order) on the suspension of the employment contract concluded with officials of state bodies and local self-government bodies for approval to the military administration exercising its powers in the relevant territory (military administrations of settlements and district military administrations, and in their absence – regional).
In case of disagreement of the employee (employees) with the order (order) of the employer on the suspension of the employment contract by the employee or the trade union on behalf of the employee (employees), the relevant order (order) may be appealed to the central body of the executive power, which implements the state policy on matters of supervision and control in compliance with the labor legislation, or its territorial body, which, after studying the content of the order (order) and the grounds for its issuance, in agreement with the military administration, may issue an order to the employer to cancel the corresponding order (order) or to eliminate the violation of the labor legislation in another way , which is mandatory to be performed by the employer within 14 calendar days from the date of receipt of such an order.
The order of the central body of the executive power, which implements the state policy on matters of supervision and control of compliance with the labor legislation, or its territorial body may be appealed by the employer within 10 calendar days in court. Reimbursement of wages, guarantee and compensation payments to employees during the suspension of the employment contract is fully entrusted to the state that carries out armed aggression against Ukraine.
Thus, in order to suspend the employment contract, both conditions must be present:
- Simultaneous absolute impossibility of providing work
- The absolute impossibility of performing work in connection with military aggression against Ukraine.
The absolute impossibility of providing work by the employer and performing work by the employee should be understood as:
- Destruction of production, organizational, technical capacity, means of production or property of the employer as a result of hostilities;
- Their operation is impossible;
- It is not possible to transfer an employee to another job or engage him in remote work organization.
Learn more about the suspension of the employment contract it is said in the letter of the Ministry of Economy of Ukraine No. 4712-06/22838-09 dated 05/09/2022 “On providing clarifications”.
In this case, we would like to emphasize that, provided that the employee is willing and able to perform work or the employer is able to provide work, suspending the employment contract is prohibited by law.
