Date of publication: 1 April 2014
Valeriia Gudiy, Attorney at Law
Source: The Companion
We believe Ukraine will manage to avoid the declaration of martial law. But later in future we ought to be ready for all possible developments.
With mobilization announced or martial law imposed nationwide or over designated regions, there comes a special period during which Ukrainian citizens will have to comply with the constitutional duty to defend their country, and enterprises and organizations, private and public, will operate under conditions of national emergency.
In effect, mobilization is the systematic transition of economy, government, local authorities and enterprises to operate in a national emergency, as well as assembling troops and supplies and making them ready for war.
In this situation, employment relations are something that needs to be regulated as well. According to the law, mere declaration of martial law is no good reason for firing people.
In a hypothetic national emergency, all working citizens in Ukraine fall into 3 categories:
• Those enlisted in the military during mobilization;
• Reservists not enlisted in the military;
• Those not involved in defence sector or otherwise engaged in providing essential services to civilian population, and not reserved by enterprises for the period of mobilization and martial law.
For each of the above categories, there are different legal implications with regard to employment.
During mobilization, citizens are called to military service at a local level through the so called “military commissariats”, or draft board induction centres.
Where they must take time away from their civilian job, employees must be excused from work for military registration and enlistment or to attend medical check-ups ordered by military commissariats. Employers are required to hold jobs for those employees, including their seniority and average salary.
However, under Ukrainian Code of Labour Laws enlisted or deployed employees can be terminated. In this case, they are entitled to a severance pay of twice the minimum subsistence wage.
Reservists not deployed or enlisted in the military can be involved in works of a defensive nature. They are in effect treated as “labour resources” of an enterprise, reserved by the same to ensure its proper operation during mobilization or under martial law.
As the law has it, where martial law is imposed nationwide or over some designated areas, the military command is free to use the capacities and human resources of public and private enterprises for the needs of defence, to change the their working regimes and to make other changes to their operations and working conditions in accordance with the labour legislation.
Where human resources of an enterprise are used by the military command for the needs of defence, such employees shall retain their jobs.
Employees not involved in defence sector or reserved by enterprises may be subjected to general public works.
“General public works” means temporary employment of the able-bodied citizens under martial law, other than business or other profit-seeking activity, to provide support to Ukrainian Army or other military formations, ensure the functioning of the national economy and provide essential services to civilian population.
General public works include the wide range of works and services which, as a rule, do not require special or professional training. This type of works is a labour conscription of citizens during mobilization and under martial law. Employees subjected to general public works are officially transferred from their current employer under fixed-term employment contract.
Employees subjected to general public works are guaranteed the minimum subsistence wage (UAH 1218 as at January 1, 2014), minimum leave, reasonable rest time between shifts and maximum working time. As soon as general public works are over, employees shall be restored at their previous jobs or, where such jobs no longer exist, offered an alternative job with the same or other employer, with the consent of the employee in question.