The new Law on organization of labor relations for the period of martial law
On March 24, 2022, the Law “On the Organization of Labor Relations under Martial Law” dated March 15, 2022 (hereinafter – the Law)1 has entered into force. Further we will consider the main provisions of the new Law.
Special conditions for remuneration under martial law:
– wages are paid on the terms specified in the employment contract: the employer is obliged to take all possible measures for the timely payment of wages;
– the employer is exempted from liability for violation of the terms of remuneration if he proves that this violation occurred as a result of hostilities or other force majeure circumstances: the release of the employer from liability for late remuneration does not relieve him of the obligation to pay wages;
– in case of impossibility of timely payment of wages as a result of hostilities, the period of payment of wages may be delayed until the resumption of the enterprise’s activities.
Special conditions for granting of leave (including unpaid) for the period of martial law:
– at the request of the employee, the employer may grant unpaid leave without saving wages and without limitation of its duration for 15 days, which is established by the Law of Ukraine “On Leave”;
– the annual basic paid leave is invariably 24 calendar days;
– the employer may refuse an employee who works on critical infrastructure2 facilities to provide any type of leave, except maternity leave and childcare leave.
- Special conditions for changes in significant working conditions
– the provisions of Article 32 of the Labor Code (hereinafter – the Labor Code) on a two-month notice of the employee on change in significant working conditions do not apply. Namely, the employer can immediately change the amount of wages, working hours, set part-time work, etc. by his order. If the employee does not agree to continue working in the new conditions, the employment contract is terminated as usual under paragraph 6 of Article 36 of the Labor Code;
– the employer has the right to transfer the employee to another work without his consent (except for transfer to another location where active hostilities continue), if it is not contraindicated for the employee’s health, only to prevent or eliminate the consequences of hostilities, and other circumstances that endanger or may endanger the lives or normal living conditions of people, with wages for work performed, but not lower than the average wage for previous work.
Special conditions for concluding the employment contract for the period of martial law:
– the form of the employment contract is determined by the parties themselves. This means that it is possible not to issue an employment order and / or not to sign an employment agreement (contract), although we advise you to continue to do so if possible;
– restrictions on employment tests have been lifted for certain categories of workers: now tests can be set for any employee;
– it is allowed to conclude fixed-term employment contracts with new employees for the period of martial law or for the period of replacement of a temporarily absent employee.
Special conditions for termination of the employment contract for the period of martial law:
– the employee may terminate the employment contract by the date, specified in his application, due to hostilities in the areas where the company is located and the threat to life and health (except for employees involved in community service in wartime, as well as those who perform work on critical infrastructure facilities (see definition above);
– dismissal of an employee is allowed during his / her temporary incapacity for work and leave, except maternity leave and childcare leave, indicating the date of dismissal, which is the first working day following the day of the end of temporary incapacity for work specified in sick certificate, or after leave;
– the provisions of Article 43 of the Labor Code on obtaining the consent of the trade union to dismissal do not apply, except in cases of dismissal of employees elected to trade union bodies.
Special conditions for setting and accounting of work and rest time:
– the normal duration of working hours of employees may not exceed 60 hours per week (instead of 40 hours), and for employees who are required by law to reduce working hours – 50 hours per week;
– a 5-day or 6-day working week is established by the employer at the decision of the military command together with the military administrations;
– the time of beginning and end of daily work (changes) is determined by the employer;
– the minimum duration of weekly uninterrupted rest – 24 hours (instead of 42 hours);
– the norms of Art. 53 (duration of work on the eve of holidays, non-working days and weekends), Part 1 of Art. 65 (on the number of overtime hours), Part 3-5 of Art. 67 (transfer of weekends) and Art. 71-73 (holidays and non-working days) of the Labor Code do not apply.
Special conditions for work at night time for the period of martial law:
– pregnant women and women with children under one year of age, persons with disabilities who are contraindicated according to medical recommendations are not involved in the work at night time without their consent;
– Part 1 and 2 of Art. 54 of the Labor Code (on the reduction of night shifts) do not apply.
8. Special conditions for involvement of some categories of workers:
– the use of women’s labor (except for pregnant women and women with a child under one year) in heavy, underground work and work with harmful or dangerous working conditions with their consent is allowed;
– workers who have children (except pregnant women and women with children under one year of age, persons with disabilities who are contraindicated according to medical recommendations) may be involved in night time and overtime work, work on weekends, holidays and non-working days, business trips with their consent.
Special conditions for collective agreements action and work of trade unions:
– for the period of martial law action of certain provisions of the collective agreement may be suspended on the initiative of the employer;
– own contributions of the enterprises to the activities of trade unions is temporarily suspended (Article 44 of the Law “On Trade Unions, their rights and guarantees of activity” and the relevant provisions of collective agreements).
Suspension of the employment contract for the period of martial law
It should be noted that the Law introduces the definition of “suspension of the employment contract“: temporary termination by the employer of providing the employee with work and temporary suspension by the employee of the performance of work in connection with military aggression against Ukraine, which excludes the possibility of work, but does not entail termination of employment.
The employer and the employee, if possible, has to notify each other of the suspension of the employment contract by any available means.
Reimbursement of wages, guarantee and compensation payments to employees for the period of suspension of the employment contract is fully entrusted to the state, which carries out military aggression against Ukraine.
This rule legalizes the critical situation when the company (or part of it) ceased operations, employees were evacuated and both parties are completely unable to perform their duties. At the same time, as in other cases of narrowing the rights of employees and non-payment of wages, the company must be ready to prove and confirm the circumstances that led him to introduce the suspension of employment contracts.
As for the procedure and mechanism for introducing such a suspension, it is not provided by Law. However, we recommend at least to draw up the suspension of employment contracts by order and by stating who it affects (all employees or individuals) and, if possible, to notify employees of the content of the order by all possible means (e-mail, messengers, etc.).
Therefore, this rule is applied in critical situations where the company can not fully provide work and wages. However, for less critical situations, when the company partially continues its work, for the purpose of reducing wages, other mechanisms described by us in our previous consultation of 15.03.2022 (to introduce downtime, part-time, etc.) remain relevant.
2 Critical infrastructure according to the definitions of the Law “On Critical Infrastructure” includes: objects of government and provision of public (administrative) services; energy supply and heat supply; water supply and sewerage; food security; health care; pharmaceutical industry; biolaboratories; information services; electronic communications; financial services; transport support; defense, state security; law and order, administration of justice, detention; civil protection of the population and territories, rescue services; space and research activities; chemical industry.