I’ll tell a real story from real life. Recently, in one of, at first glance, solid Ukrainian publications, the leadership initiated a massive reduction of employees. I would not mention the real reason for this step (not the place and not the time), I will only say that for this purpose the reorganization procedure of the enterprise was started, cynically justifying it with the necessity of modernizing the publication. One employee, who was dismissed at the same time by agreement of the parties (the parties agreed on the initial allowance for the dismissal, provided for by the current Labor Code), there was a situation 12 years ago, when she was traveling for an interview, and her bag with an editorial recorder was stolen in transport.
In order not to have trouble, the girl immediately wrote an application to the police, which was the evidence of the theft. Law enforcers issued an appropriate certificate – a confirmation for the editorial board, then everything calmed down. However, now, issuing a work-sheet to the journalist, the head of the organizational department, referring to the order of the editor-in-chief, demanded from the girl… to return the stolen equipment. Like, “I know everything and understand everything, but go and buy something old”.
It is quite logical that a) she does not have a voice recorder, because it was actually stolen, b) there is a certificate from law enforcement agencies, c) the statute of limitations, even if there was no police certificate, in such cases is limited to three years, the answer was such “I’m a servant (heading of the editorial union, at that time, a person preferred not to remember which one), I was told – I’m carrying out…” The journalist went to the head, who, in spite of any of the arguments, offered her… to pay in cash 500 UAH. And when she refused, because such a requirement contradicts the norms of the current legislation, the head smiled and crossed out own resolution on the payment of a monthly salary on her statement of dismissal. Since it is a matter of dismissal by agreement of the parties, one could hardly expect that an impudent employer can be punished in court.
The main difference is the individualization of labor relations
You could ask, what is the moral of this “fable”? It’s all simple: the current Labor Code, adopted back in the Soviet Union in 1971, worked its own way, and it’s time to send it for a well-deserved rest. Therefore, the adoption of the new Labor Code of Ukraine (bill No. 1658, by Stepan Kubov and Mykhailo Papiev, must pass the second reading during the eighth session of the Verkhovna Rada of the VII convocation, approved by the March resolution of the Parliament) is indeed topical, but one of the main things that must not be forgotten, – in addition to the modern labor legislation of the pro-European direction, Ukrainians must also receive an effective mechanism for protecting their labor rights, because now the arbitrariness of employers, which sometimes consider themselves to be such “autocrats of a local kind”, is simply off the scale.
“The need for the adoption of the Labor Code is caused by the fact that now in Ukraine all labor relations are regulated by the Soviet code, which, although adapted to the present, does not change the vector of labor relations of the Soviet period, – Oleh Rachuk, the managing partner of the law firm “Oleh Rachuk law firm”, notes in a commentary to Opinion. – Since the registration of the draft law in the Parliament, technical remarks have been received from the International Labor Organization, the work on amending the working group under the Verkhovna Rada’s committee has been completed, so the most important thing is to consider it in the second reading and take the document that the country needs”.
It is clear that an ordinary Ukrainian, who does not have a father-oligarch and starts working, as soon as he finishes his study or even during it, is curious what will change for him with the adoption of the new Labor Code. The most important changes for a person, who works, concern not only the length of the working day – up to 12 hours with the consent of the employee, it became the most discussed norm in the media, but also, first of all, the rules for hiring and dismissal, the duration of the leave, the introduction of the opportunity to work remotely on completely legal grounds, new conditions of the probationary period, as well as the introduction of a norm on the inadmissibility of discrimination on the basis of racial, sexual, gender, religious or national orientations. However, if the employer takes into account the age or state of health, the level of education or the ability of the applicant for a position, such motives cannot be interpreted as discriminatory.
“In my opinion, – Lidiya Tkachenko, the Leading Researcher of the Institute of Demography and Social Research named after M. V. Ptukha of the National Academy of Sciences of Ukraine, economist, explains to Opinion. – The main difference is that the new code provides for the individualization of contractual relations, direct and explicit labor relations between a specific employee and his employer, taking into account the mandatory written execution of the individual labor agreement. The current code is more focused on collective-contractual relations, which extend the general rules of the internal labor regulations to all employees, and the obligatory conclusion of written individual labor contracts is provided only for a small number of cases”.
What is especially important for those Ukrainians, who have long worked in freelance, for the first time in the history of domestic legislation, parliamentarians decided to listen to common sense beliefs and recognize in the Labor Code of Ukraine workers, who do not sit out time in the office or at work, but actively work remotely, most often at home. Moreover, on hiring such an employee, the employer must be prepared to partially pay utility bills for that person and funds for depreciation of equipment. However, the bill stipulates that remote work can only be carried out under the terms of a civil law agreement. This means that neither the paid sick leave nor the paid leave for those, who work at home, should not be counted. According to Oleh Rachuk, such organization of work in a number of institutions actually took place before, but it was not settled by law. The draft Labor Code stipulates that “at the conclusion of an employment contract or later the parties can agree on the performance of the work by the worker at home (home-based work), if the worker has the necessary conditions for this, meeting the requirements of labor protection, fire safety and sanitation” (Article 44).
The length of working time could be the stumbling block
The current Labor Code of Ukraine provides a 40-hour working week, that is, an 8-hour working day. Newest Labor Code of Ukraine proposes to increase the duration of the working week to 52 hours, that is, to enter 10-11-hour – up to 12-hour – working day. But the duration of working time can only increase with the consent of the team. The overwhelming majority of the rules on the duration of working hours in the new code, in Lydia Tkachenko’s opinion, does not differ from those that exist in the current one, there are no terrible dangers there. “The Art. 141 notes, – the expert explains, – that the collective agreement can continue the duration of daily work, but not more than up to 12 hours, provided that the working hours established by law are observed. That is, a 12-hour working day is possible only with an additional “permission” from the collective agreement, and the total amount of work time should not exceed the standard 40 hours per week”.
Although, given the level of implementation by employers of the current legislation, Ukrainians, with whom they managed to communicate, express fears that employers will use this position in the way, which is more comfortable for them. After all, it is offered to pay for overtime three times more, starting with 120 hours worked. But in the heat – for those, who work in rooms without air conditioning, – offer to introduce the day siesta. And the sweet “zest” is not even in the possibility of a longer rest during the day, but the fact that a shorter working day should not affect the wages of employees, which, of course, is unlikely to please employers.
“The bill proposes a clear definition of the very concept of working time, – the lawyer Oleh Rachuk adds. – This is the time during which the employee, in accordance with the rules of the internal labor regulations and the terms of the employment contract, must perform labor duties. In its composition, the legislator not only determines the time, when the employee fulfills his or her job duties together with the preparatory-final period (the time of obtaining the job assignment, materials and tools, goods, familiarization with the technical documentation, according to which the work should be carried out, preparation and cleaning of the workplace, delivery of finished production, etc.), but also breaks for rest, personal needs, heating, etc.”.
If this Labor Code is adopted, then it will be possible to earn money on legitimate grounds, in fact, even for teenagers, who now are trying to earn at least for pocket expenses in various ways. So, the draft LCU provides that the employer will be able to conclude employment agreements with adolescents up to the age of 14 years. And in this case, we are talking about clearly delineated areas of employment of minors, this is primarily the film and concert activity and the sphere of advertising.
Important innovations also relate to the conditions for the dismissal of an employee from work. First of all, we are talking about mass reductions, which the employer usually cleverly disguises as “reorganization”. An example of such a “reorganization”, together with the creation of conditions to “push” people to dismissal by agreement of the parties (and even better – to split up voluntarily!), were given at the beginning of this material. So, if in accordance with the current Labor Code, when reorganizing, an employer must warn a person 2 months before the start, the draft LCU proposes to double this period, that is, to warn the employee not in 2, but at least in 4 months.
They want to change the size of the so-called initial payment. If today a person, dismissed while reorganization, that is, due to the reduction in the number of employees (paragraph 1 of article 40 of the Labor Code), receives one average monthly salary, then bill No. 1658 suggests “sweetening” the lay-off pill. That is, the one, who worked in the last place of work less than 5 years, will be paid the average monthly salary on dismissal (as it is now). For those, who have worked from 5 to 10 years – 2 average monthly salaries. And workers, who have more than 10 years of experience in the company, from which they are released – 3 average monthly salaries.
And commercial secrets of uncertain content
The reason for dismissal, as lawyers say, can also be the disclosure of commercial secrets. Art. 92 of the draft LCU provides for dismissal for the disclosure of state secrets, commercial or other legally protected information that has become known to the employee, signed an obligation of non disclosure, or an employment contract is concluded with the condition that this information, non disclosure, is not disclosed. That is, the employee must be warned that it is a commercial secret, and must sign a duty to not disclose exactly this information. In the draft law, there is no clear definition of what should be considered a secret, therefore employers will be able to treat this norm as it seems appropriate to them in case of disputable situations.
The new code, according to Lidiya Tkachenko, is much better suited to the current conditions than the one that we had before, because, according to the State Statistics Service of Ukraine, a quarter of full-time employees are not covered by collective agreements, that is, they work in enterprises, where such a contract does not exist at all. In activities, where small enterprises predominate (trade, hotels and restaurants, business services, private services), more than half of the employees work without collective agreements. The new code makes it possible to make the regulation of labor relations both more flexible (taking into account, on the one hand, the features of a particular workplace, on the other hand, the needs and capabilities of a particular employee) and more universal (covering absolutely all types of labor relations and all employees).
“But it seems inappropriate, in my opinion, to preserve paper Work Books, – the expert emphasizes. – Labor records are of practical value only until 2000, when the Pension Fund and the Fiscal Service have not yet had electronic registers. This is, rather, a historical document, but now the conduct of Work Books only creates an additional administrative burden”.
The lawyer Oleksandr Migdal considers the work on the conditions of an unregulated working time, its flexible regime and the possibility to work remotely the positive of the project (Article 44, 144, 153 of the draft LCU), as well as an exclusively written form of the employment contract (Article 34 of the draft). But human rights activist Eduard Bagirov is outraged by the fact that this bill provides for the possibility to dismiss a person in case of refusal of medical vaccination.
Some experts note that it is the current Labor Code that maximally protects the rights of the employee. But the project, on the contrary, takes more into account the interests of employers: if they do not make the appropriate changes, they will get too many opportunities to turn workers, figuratively speaking, almost to slaves. This, by the way, is also mentioned in the conclusion of the Main Scientific and Expert Department of the Verkhovna Rada, which is accompanied by the bill No. 1658. “The separation of the regime of work under conditions of irregular working hours (Article 153 of the draft) does not agree with the general principles of certainty and predictability of the legal regulation of public relations, and with the principle of labor law in favorem (priority of the employee’s interests), the document says. – In addition, there are sufficient grounds to consider delimitation of overtime work and work in conditions of irregular working hours artificial, because overtime is considered all work in excess of the established duration of working hours (Article 62 of the current Labor Code). The attractiveness of the non-standardized working day for the employer is determined by the ability to force the employee to work more than 40 hours a week without additional payment. However, such work objectively falls under the category of forced labor”.
And this remark is far from the only thing in this conclusion. There, for example, it is noted that “By the art. 199 of the project it is assumed that for family reasons and for other reasons an employee may be granted leave without pay for up to 3 months on his application… Establishing such a long vacation without pay keeps the risks of abuse of the employee’s right since, in fact, it allows the employer to use the employee’s “consent” to resolve other issues of the enterprise, institution, organization without taking into account the employee’s interests”.
Taking into account the number of comments, it is clear that it will not be possible to resolve all disputable issues in one fell swoop – they need to work a lot more on the bill. In particular, foreseeing a mechanism that disciplined employers, so that there are no situations, one of which is described at the beginning of the material. Speaking about the shortcomings of the current Labor Code, which allegedly stands guard over the interests of the employee, Lidiya Tkachenko rightly wondered: where did the massive violations of labor rights come from, starting with the non-registration of the fact of employment and ending with scanty wages that are not paid on time? Apparently, not everything is so good, if the norms of the code are not met. “There were also reproaches, – the economist recalls – that the new code detracts from the role of trade unions. This, too, cannot be said unambiguously, because references to the agreement of the employer’s decisions with trade unions remain practically in all those cases, as now. But the mechanisms for supervision and control over compliance with labor legislation, in particular through the powers of state labor inspectors, define a new code in more detail. That is, it cannot be said that it was written from the positions of employers, otherwise, it would have been pushed long ago”.
The main problem is probably that the new code, besides modernizing the norms and provisions of the labor legislation, also provides for the awareness and independence of the employee, who not only must know his rights a priori, but also be able to defend them, including in court. Unfortunately, Ukrainians, who say “it is not in my backyard” until the last, still have a lot of problems with this. Therefore, employers allow themselves to violate the rights of employees. Will the situation change for the better with the new Labor Code of Ukraine, let’s see, when the parliamentarians will accept it.
By Larysa Vyshynska