Publication

Legal Updates of Labour & Employment Practice (Q1-2, 2019)

17/07/2019

Oksana Voynarovska

Partner, Attorney-at-Law

Labour and Employment,
Private Client and Wealth Management

LEGISLATIVE ACTS

Ukrainian Language Law

On July 16, 2019, the Law of Ukraine “On Ensuring the Functioning of the Ukrainian Language as a State Language” (hereinafter referred to as the “Law”) became effective. Under the Law the employers must conclude employment agreements in Ukrainian, but at the same time allows to have its translation or make an employment contract with a side-by-side translation.

The Law allows requiring the employees to use other languages than Ukrainian only in cases where the employees work with foreign clients, legal entities, foreign states and international organizations.

The Law prescribes liability in the form of a warning notice (if the breach is committed for the first time) or fine in the amount of UAH 3,400-5,100 (approx. USD 130-190) imposed on the companies. However, the companies may be held liable only in three years after the Law became effective (i.e. after July 16, 2022).

Leaves for Adopters

On June 21, 2019, the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine regarding Providing Vacations to Adopters upon Adoption of an Orphaned Child, a Child Deprived of Parental Care" (hereinafter referred to as the "Law") became effective. The Law amended the Labor Code of Ukraine and the Law of Ukraine "On Vacations".

The Law grants a one-time paid leave for 56 days (or 70 days where two or more children were adopted) following the adoption of a child by the employee. With the Law being enacted, the employees may get this leave by adopting a child of any age, while heretofore the leave was granted only in case of adopting a child over three years of age. This leaves is paid by the employer.

As previously, in case a married couple adopts a child, only one parent may apply for the leave. The employee must submit an application to the employer no more than three months after the legal decision on the child adoption was made.

Military Records Anew

On February 6, 2019, the Cabinet of Ministers of Ukraine adopted the Resolution No.74 amending the Regulation on Military Records of Conscriptees and establishing the Unified State Register of Conscriptees (hereinafter referred to as the "Register"). Previously, the Parliament of Ukraine adopted the Law No.1951-VIII regulating the establishment and keeping of the Register. However, by this time the Register has not been launched yet.

With the launch of the Register, the employees responsible for military records will have to keep military records on all the conscriptees who work for more than three months. The Resolution No.74 also reduced the minimum age for military registration from 18 to 17 years old.

The Resolution No. 74 also extends the grounds for summoning the conscriptees to the military commissariats. From now on, the military commissariats may summon the employees for medical examination, check of records and for an appointment for the times of war. The employers whose employees are summoned shall issue the internal resolution on notification of summoned conscriptees and send its copy to the respective military commissariat within three days.

Obtaining Visa D in Ukraine

On March 6, 2019, the Cabinet of Ministers of Ukraine issued the Resolution No.368 amending the Rules for Issuing Visas for Entry to Ukraine. By this Resolution, the Government simplified the rules of a long-term visa type D obtainment for the foreigners who seek employment in Ukraine.

Before the Resolution No.368 became effective, foreigners could only apply for a long-term type D visa in Ukrainian consulates or embassies abroad – after their Ukrainian employer has obtained a work permit for their employment in Ukraine. Starting from June 26, 2019, foreigners may obtain the D visa in Ukraine – at the Directorate General for Consular Services of the Ministry of Foreign Affairs of Ukraine.

The long-term type D visa may be issued by the Directorate General for Consular Service of the Ministry of Foreign Affairs of Ukraine for foreigners who apply for it with a purpose of:

  • employment;
  • education;
  • participation in the international technical assistance projects;
  • working at representative offices of foreign companies;
  • working at branches or representative offices of foreign banks;
  • implementation of cultural, scientific, educational activities in accordance with the international agreements of Ukraine;
  • participation in the international and regional volunteer programs, or activities of voluntary organizations registered in Ukraine;
  • as founders or participants or beneficiary owners of a legal entity registered in Ukraine and whose share in the authorized capital is not less than 100,000 Euros.

Only nationals of the countries with a visa-free regime of entry to Ukraine (EU, US, Japan, etc.) may apply for the long-term type D visa at the Directorate General for Consular Service of the Ministry of Foreign Affairs of Ukraine.

Investigation of Work Accidents Improved

On April 17, 2019, the Cabinet of Ministers of Ukraine approved a new edition of the procedure for investigation of work accidents by its Resolution No.337, which came into force on July 1, 2019.

The Resolution No.337 changes the rules of work accidents investigation by simplifying the required documentation, clarifying the investigated events, sanitary and hygiene work-related requirements. The Resolution No.337 authorizes the State Labor Service of Ukraine to control and oversee the investigation of work accidents. In addition, the Resolution No.337 sets a limitation period of 3 years for the investigation to be conducted.

The investigation of work accidents concerns not only employees, but also independent contractors and shadow workers. In this case, the company’s manager must notify the respective authorities (the State Labor Service, the Social Security Fund, etc.) about the accident.

E-Register of Sick Lists is Coming

On April 17, 2019, the Cabinet of Ministers of Ukraine adopted the Resolution No.328 launching the E-Register of sick lists (hereinafter referred to as the "Register"). The Pension Fund of Ukraine, the Ministry of Health, the National Health Service, and the Social Security Fund will have to connect their IT systems by September 1, 2019, and take other necessary measures by December 1, 2019, to ensure that sick lists are kept in the Register.

The Pension Fund of Ukraine will administer the Register, while the Ministry of Health, the National Health Service, and the Social Security Fund will have access to it to check the validity of sick lists. In addition, the employers and employees will also have access to the Register via their accounts.

State Labor Service to Inspect Compliance of People with Disabilities Employment

On June 5, 2019, the Cabinet of Ministers of Ukraine adopted the Resolution No.466 approving the new edition of the Procedure for Conducting Inspections of Enterprises, Institutions, Organizations and Natural Persons using Labor (Social Protection of People with Disabilities). It became effective on June 19, 2019.

Previously, the inspections concerning the employment of people with disabilities were conducted by the Social Security Fund of Disabled People. From now on, the State Labor Service will carry out these inspections and check compliance with the quotas (4%) for the employment of people with disabilities.

At the same time, the Cabinet of Ministers of Ukraine is yet to approve the risk criteria for determination of the inspections’ frequency depending on the business activities. Following that, the State Labor Service will publish on its official website these criteria alongside with the plan of scheduled inspections.

State Labor Service "On-Site" and "Off-Site Inspections" Outlawed

On May 14, 2019, the Sixth Administrative Court of Appeal by its decision in case No.826/8917/17 declared illegal and void the Resolution of the Cabinet of Ministers of Ukraine No.295 regulating the procedure of "on-site" and "off-site inspections" conducted by the State Labor Service and the executive bodies of local councils. Thus, the Resolution No.295 is not applied since May 14, 2019.

After May 14, 2019, inspectors of the State Labor Service may carry out scheduled and unscheduled inspections only on the ground of the Law if Ukraine No.877-V, provided the State Labor Service approved the respective form of the inspection act which has not been approved yet. At the same time, the inspectors of local councils are no more authorized to inspect compliance with the labor laws.

On June 13, 2019, the Cabinet of Ministers of Ukraine appealed this decision to the Cassation Administrative Court of the Supreme Court. The Supreme Court has launched the proceedings on June 19, 2019. However, while the case is being considered by the Cassation Administrative Court of the Supreme Court, the Resolution No.295 remains void and shall not be applied.

JUDICIAL PRACTICE

Nominating Salary in Foreign Currency Ruled Legal

On June 26, 2019, the Supreme Court adopted the decision in case No.761/21776/16 (hereinafter referred to as the "Decision") adjudging that nominating the employee’s salary by the employment agreement in a foreign currency (in this case – Euros) is fully legal and does not violate the employee’s rights or the applicable law.

The Supreme Court also confirmed that the salary can be paid out in the national currency (i.e. Ukrainian hryvnia) only, so at every salary payment the sum nominated in a foreign currency shall be converted to the Ukrainian hryvnias according to the effective currency rate and paid out to the employee in the Ukrainian hryvnias.

The legal positions and conclusions of the Supreme Court must be taken into consideration by lower courts and have a quasi-precedential nature.

Authors: Oksana Voynarovska, Valeriya Savchuk, Oleksandr Melnyk, Kateryna Bernas

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