Date of publication: 29 July 2024
Valeriia Gudiy, Attorney at Law, Partner
Source: Ukrainian Law Firms 2023-2024
Ukraine has been facing hard times – firstly with the Coronavirus affecting many aspects of daily life, and then with Russia’s invasion of Ukraine. Since martial law was declared on 24 February 2022, Ukrainian laws had to be adjusted to the new legal regime.
On 24 March 2022 the Law of Ukraine On the Organization of Labor Relations Under Martial Law came into force. In particular, it limits certain guarantees and rights of employees and provides certain opportunities for employers.
There is no need to describe all the suffering that Ukrainians faced on the first days of war – the absence of understanding as what to do, how to save life, how to help others and how to stop the enemy’s invasion. Life was and is the priority. Businesses (employers) had to meet one of the hardest challenges.
The Ukrainian government is continuing its attempts to keep the economy afloat and for this it was necessary to help business return their staff to their jobs by implementing the necessary legislation.
In addition, to dealing with the current struggles, the lawmakers relying on European integration managed to update certain areas of labor legislation. The judicial practice of the Supreme Court of Ukraine also underwent new approaches in certain categories of disputes.
Martial law
The Law of Ukraine On Organization of Labor Relations Under Martial Law determines that during the period of martial law, labor legislation, the laws On the State Service shall not be applied in relations regulated by this Law.
In the main, this Martial Law introduces restrictions on the constitutional labor rights and freedoms of certain persons in wartime, including the right to work, equal opportunities in the choice of profession, the right to proper, safe and healthy work conditions, the right to strike for the protection of their economic and social interest and other rights provided for by Articles 43, 44 of the Constitution of Ukraine.
The legislator realized the possibility of labor shortages due to the absence of employees who were evacuated to another area, are on vacation, idle, temporarily disabled or whose location is temporarily unknown in another area and temporarily provide labor regulations for easiest relations.
In the period of martial law, the two-month advance notification of significant changes in the working conditions of employees is canceled and an employer is not liable for violating the terms of salary payment, if this is due to military activity or other force majeure circumstances.
A labor agreement may be suspended by an employer or either employee in some conditions and employer may, on its own, also suspend certain provisions of a collective agreement.
In general, the concept of suspending an employment agreement was new for Ukrainian legislation and there were questions on its implementation. Suspension does not terminate the relations and the law proposes to suspend the agreement for a while if military aggression excludes the possibility of performing work. It should be noted that for the period of such suspension the reimbursement of salary and compensation payments to employees is imposed upon the state, which carries out military aggression against Ukraine.
There is still no mechanism to reimburse lost earnings to employees but the required decision will be adopted by the Cabinet of Ministry of Ukraine, and we hope it will be in the near future.
Forms of work and working regimes
The COVID-19 pandemic activated legislative changes which played a good role for businesses facing war in 2022 – the start for flexibility and diversity of employment forms – flexible hours, remote work, working at home.
In particular, on February 2021 the Labor Code of Ukraine was supplemented with new articles 60-1 and 60-2, governing work at home and remote work. Such forms of work helped employers and employees continue their relations during the period of evacuations, shelling and bombings.
In July 2022 the legislator proposed to employees the labor agreement with non-fixed working hours, by supplementing the Labor Code with article 21-1 and amending the Code with the new section III-Б. Additional grounds for termination of employment were stipulated.
As mentioned above, legislation was amended with the right to suspend a labor agreement and during 2022-2023 it was a useful mechanism to avoid legal uncertainty with employees who could not continue their work duties because of military aggression. Also, during war unpaid vacation can be provided to an employee for the period agreed with the employer, even more than 15 calendar days.
But in 2023 employers faced the problem of employee shortages – part of the staff did not return to their jobs, the others were mobilized, the labor agreements were suspended and young specialists do not have sufficient experience and knowledge. In such situations it was the right decision for many companies to change their working regime to preserve employees due to their departure abroad or beyond the boundaries of places of work.
Other changes to labor law
Among other changes to the labor law related to war, it should be mentioned that lawmakers integrated mechanism to prevent harassment in day-to-day working activity.
Namely, the era of legal protection against mobbing (harassment) of employees began in the last days of December 2022. The proper definition was mentioned in Article 2-2 of the Labor Code and the rights of the employee to counteract harassment were stipulated.
The Labor Code prohibits mobbing. Forms of psychological and economic pressure were also described that help employees and employers better understand what behavior is unlawful, including the following:
- threats, derision, slanders, intimidating or humiliating behavior or any other kind of behavior that removes a person from his/her psychological balance;
- groundlessly preventing an employee from performing his/her work functions or not allowing to the workplace, transferring the workplace to unsuitable places or not inviting a staff member to meetings;
- unequal possibilities for professional studies and career growth; or unequal pay for the same work performed by employees possessing the same qualifications;
- unjustified, uneven distribution of work tasks between employees with the same qualification with equal work value.
Legislators have clearly decided to follow legal principles present in a democratic state, to respect Ukraine as a state and, therefore, to also respect the rights of employees in the labor field. Ukraine faces very difficult times, but this period is historic – a time of changes in the field of war and improvements in the field of legislation.
What the future holds
Businesses had to adopt to the challenges of war. Protection of Ukraine’s interests and borders together with support for the national economy are the main goals. The main topics at present and which will continue till the end of the war is mobilizing conscripts, keeping hold of employees and rehabilitating army personnel and, once the war has ended, returning them to their places of works once the war has ended.
