Life, and employment, go on in Ukraine but the war has created many pressing and unprecedented issues for employers and employees. Our lawyers in Ukraine have been keeping us posted about the numerous labour law questions that are arising from both the employer's and employees' point of view. New legal provisions have established some temporary rules.
Published: Ius Laboris, 30 March 2022
Authors: Valeriya Bezpala, Partner
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Provisions of a new law are aimed at simplifying employment procedures in wartime. Under martial law:
- The form of the employment contract (written or oral) is chosen based on the mutual consent of the parties.
- A probationary period can be set for any category of employees (some categories of employees were exempt from the probation, such as single mothers, young graduates, etc.).
- A fixed-term employment contract may be concluded for the period of martial law or as a replacement for a temporarily absent employee.
Essential employment condition changes and transfers
An employer is not obliged to give two-months’ notice about essential employment conditions change.
Transfer of an employee to another job not stipulated in the employment contract does not require the employee’s consent when:
- a transfer is required to prevent or eliminate the consequences of hostilities or other life-threatening circumstances;
- there are no health-related contra-indicattions to the employee doing the new work;
- the salary is not lower than the employee’s average earnings from his or her previous role.
However, the employee’s consent is essential if the employer intends to transfer him or her to an area where active hostilities are taking place.
The working regime can be regulated as follows:
- The duration of working hours should not exceed 60 hours (50 hours for employees on reduced working hours) compared to 40 hours previously.
- Employers can set the starting and ending hour of the working day unilaterally.
- A five or six-day working week is set by the employer at the discretion of the military command.
- If s/he is involved in the performance of work on critical infrastructure facilities, an employee may be denied any leave (except for maternity leave).
- in some cases, women can be engaged to work at night, for hard (physical) work and overtime work with their consent.
- Work during the state holidays is allowed without any additional compensation.
Importantly, the new changes do not allow employers to completely stop paying salary.
An employer is released from responsibility for late payment of salary if it proves that the late payment happened as a result of hostilities or other force majeure circumstances. Meanwhile, release from responsibility does not exempt the employer from an obligation to pay wages.
Employers must take all measures to ensure timely payment under the terms of employment contracts. If they are unable to do so, salary payment is deferred until the company resumes its core business.
Termination of employment and suspension of employment contract
A new law provides for the possibility to suspend employment with an employee. This means the employee will be absent and unable to perform work and, the employee does not pay salary. Reimbursement of unpaid salary and other benefits to an employee whose employment is suspended is considered to be the responsibility of Russia as the aggressor state.
An employee is entitled to terminate his or her employment contract within a period specified in his or her employee’s notice if the hostilities are taking place in the area where the workplace is located and in the event of a threat to the life and health of the employee. This is in contrast to the 14-day notice period previously in force. If the employee is forcibly involved in community service or works on critical infrastructure (metro, military units, etc.), the two-week notice period continues to apply.
The law does not provide any new grounds for dismissal in wartime but allows dismissal during sick leave and vacation (except for maternity leave) without trade union consent.
Collective bargaining agreements
An employer may temporarily suspend the fulfilment of its obligations under a collective bargaining agreement and cease any payments to a trade union during the period of martial law. The trade unions should support the employers and keep monitoring the fulfilment of essential employment guarantees.