Concluding employment contracts under Martial Law
The Martial Law in Ukraine continues from 02/24/2022 until now. It heavily affects the internal regulations for the labor market. And as it is rapidly changing, international partners working through Ukraine may stress dealing with all the following issues. Our text is supposed to serve as a clarification piece.
According to Part 1 of Art. 24 of the Labor Code of Ukraine, the employment contract is usually concluded in writing. The written form is obligatory when: concluding a contract, if the employee insists on it, if the employee is a minor, an employment contract is concluded with an individual or for remote / home work.
However, during martial Law in Ukraine, the form of the employment contract is determined by the parties’ agreement. Even in the case of mandatory compliance with the written form, it is possible to conclude orally.
Also according to Art. 2 of the Law during martial Law may not apply restrictions on the establishment of the test (which are fixed in Article 26 of the Labor Code of Ukraine). And to set tests not only for “ordinary” workers but also for persons whom the Labor Code prohibited from taking tests for employment. In particular, persons with disabilities discharged from military or alternative (non-military) service, pregnant women, single mothers who have a child under 14 years of age or a child with a disability, persons with whom a fixed-term employment contract is concluded for up to 12 months, persons for temporary and seasonal work, internally displaced persons.
The Law contains a provision for the recruitment of new employees and the elimination of staff shortages and labor shortages, including due to the actual absence of employees who were evacuated due to hostilities, are on leave, downtime, temporary disability, or whose fate is temporarily unknown.
Employers may enter into fixed-term employment contracts with new employees for martial Law or the period of replacement of a temporarily absent employee. To this category should be added the types of workers mobilized to the Armed Forces and maintenance for the period of service.
It remains unclear why to replace an idle employee. Because downtime is declared since the company can not operate in certain circumstances, there is simply no need to replace one employee with another.
Transfer and change of significant working conditions
According to Art. 3 of the Law, for the period of martial rule, the employer has the right to transfer the employee to another job not stipulated in the employment contract without his consent (except for transfer to work in another area where active hostilities continue). And if such work is not contraindicated to prevent or eliminate the consequences of hostilities / other circumstances that threaten people’s lives or normal living conditions. Wages should not be lower than the average salary for the previous job.
Also, the employer may introduce a change in significant working conditions without notice for two months. These include changes in the system and amounts of wages, benefits, working hours, the establishment or abolition of part-time work, combining professions, changing ranks and names of positions, etc.
Application of this norm suspends action not only from the norm of Art. 32 of the Labor Code and Article 103 of the Labor Code. This gives the employer more freedom to change work schedules, working hours and transfer the employee to another job.
Accounting for working time and rest time during Martial Law
According to Art. 6 of the Law, employees’ regular working hours during martial Law may not exceed 60 hours per week (for employees for whom the Law provides for reduced working hours – no more than 50 hours per week).
The norm does not provide for the mandatory establishment of a 60-hour working week. Still, there are situations when employees, particularly in companies that offer water, gas, and electricity, can work longer hours than in peacetime. After all, employees of the next shift do not arrive on time, or the volume of repair or other work is increased.
However, the Law does not specify how such an increase in the length of the working week should be paid. It is advisable that this work, as it is not defined as overtime, be paid at least a single amount for the time worked and not included in the salary paid to employees during the 40-hour workweek. However, it is defined by the norm as an average working time and most likely will not be reimbursed.
Also, for the period of martial Law, the time of weekly rest may be reduced to 24 hours, and the rules of Art. 53 of the Labor Code (duration of work on the eve of holidays, non-working days and weekends), Part 1 of Art. 65 of the Labor Code, parts 3-5 of Art. 67 and Art. 71-73 of the Labor Code (holidays and non-working days) do not apply. That is, overtime work, holidays, and transfer restrictions are abolished.
During martial Law, the use of women’s labor (except for pregnant women and women with a child under one year of age) is allowed in heavy work and work with harmful or dangerous working conditions and underground work (with their consent). Also, employees who have children during martial Law may be involved in night and overtime work, work on weekends, holidays, and non-working days, and go on business trips with their consent (Articles 8-9 of the Law).
Exceptions are only pregnant women and, women with children under one year of age, persons with disabilities who are medically contraindicated for such work. Such persons are not engaged in night work during martial Law without extreme necessity.
Dismissal of employees and termination of employment contracts
According to Art. 4 of the Law, in connection with hostilities in the areas where the company is located, and the threat to the life and health of the employee. He may terminate the employment contract on his initiative without two weeks’ notice (except in cases of forced involvement in community service in the martial Law of work on critical infrastructure).
Since the norm of Art. 38 of the Labor Code did not contain an exhaustive list of reasons for dismissal without notice to the employer; the employer could, even before the entry into force of this Law, recognize the reasons for endangering the life and health of the employee as valid for dismissal without notice.
However, the territory of Ukraine has not been identified for such a reason. The Law regulated this circumstance and clearly stated that a valid reason for dismissal without warning due to the employee’s threat to life and health can be only in areas of hostilities, not throughout Ukraine.
The employer also acquires the right to terminate the employment contract with the employee in connection with the liquidation of the enterprise caused by the destruction due to hostilities of all production, organizational or technical facilities, or property. The employee is notified of such dismissal no later than 10 days with the payment of severance pay in the amount of not less than the average monthly salary. The rule applies only to enterprises that are liquidated due to destruction due to hostilities. You can track the legality of such a rule based on the territorial location of the enterprise in the area of hostilities, and possibly the availability of additional information about the destruction of the enterprise.
The Law introduces a new concept of “suspension of the employment contract.”
According to Art. 13 of the Law, the suspension of an employment contract is a temporary release of the employer from the obligation to provide the employee with work and a temporary release of the employee from the obligation to perform work under the concluded employment contract. Termination of the employment contract does not entail termination of employment.
The employment contract may be suspended due to military aggression against Ukraine, which excludes the possibility of work.
Reimbursement of wages, guarantees, 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.
An essential factor is that the employment relationship continues. In this case, the question arises as to whether the social tax is paid for the employee by the employer, whether this period is included in the length of service, which gives the right to annual leave, or how to get compensation from the aggressor’s country. Currently, the Law does not provide answers to these questions.