Vitaliy Dudin, Translation by Patrick Le Tréhondat
A new draft amendment to the Labour Code has emerged. According to Vitaliy Dudin, a labour lawyer and member of the Social Movement, "This is far from being the first attempt to repeal the Ukrainian labour code in recent decades, but it is clearly one of the boldest".
TOP-5 challenges of the new Labour Code
The draft of the new Labour Code of Ukraine recently published by the government represents the greatest attack on workers' rights during the period of martial law. This comprehensive document of 264 articles could undermine the implementation of many of the rights guaranteed to employees by the European Social Charter and European labour law. This is far from the first attempt to repeal the Ukrainian Labour Code in recent decades, but it is clearly one of the boldest. It may cause deep resentment among workers who are trying to lead a normal life or serve in the armed forces.
Millions of people employed under labour contracts risk losing their protection against dismissal and their ability to resist the arbitrary actions of their employers. The authors seek to perpetuate the "temporary" restrictions on rights from the war period, offering Ukrainians the chance to endure injustice even after victory. Separate provisions will legalise shameful practices such as dismissal for divulging trade secrets, the 12-hour working day or the unexpected interruption of holidays. If the Code is adopted this year, it will come into force in 2025 (Article 1 of the Final and Transitional Provisions).
As far as is known, the draft was hastily drawn up by a small circle of authors under the direction of Economy Minister Yulia Svyridenko and People's Deputy [Zelenski's party] Halyna Tretyakova, without the participation of trade union representatives. The result is a law that is poor in form and antisocial in content.
1. Haphazard compilation. Based on neo-liberal approaches, the authors seek above all to make labour legislation practical for the capitalist and to render the employee incapable of protecting himself as the weakest party in the employment relationship. The document contains the norms of Ukraine's draft laws "On Collective Agreements and Contracts", "On Collective Labour Disputes" (Book 4), "On Safety and Health of Employees at Work" (Book 3) and, of course, the Mylovaniv Draft of the law "On Labour". The length of the regulatory text can easily confuse the employee. But at the same time, many labour law institutions have not found their own regulations in it: this applies in particular to the examination of individual labour disputes, as only Article 192 is devoted to judicial remedies. "Rights and guarantees of activity" is not repealed, but its practical significance will be levelled out by the fact that the new code envisages the functions of trade unions in a very different way. The provisions are inconsistent in places: art. 24 contains the employer's right to bring disciplinary action against the employee, but its design and application procedure are not disclosed. There is also a general prohibition on moral harassment at work, but the employer's obligation to combat this phenomenon is not included (as in the current article 158 of the Labour Code). It should be noted that Article 18 of the draft allows the employer to issue regulations in the manner it determines. They may extend the employee's duties (article 22). There is no need to involve the unions in this process, as such "self-regulation" will lead to chaos.
2. Working until death. In accordance with art. 84, employees may not work more than 48 hours in any 7-day period, including overtime. The number of hours of overtime in a calendar year is limited to 360 hours (currently 120 hours). At the same time, the law provides employers with an extremely convenient opportunity to introduce a summary breakdown of working time (Article 88), where it is permitted to work, for example, a year's worth of working time over a shorter period. In this case, work can last up to 12 hours a day. All that needs to be done is to "inform the workers' representatives". In the area of working time, the employer decides on: the length of shifts (article 84), working hours (article 88), shift schedules (article 90), etc. Such extensive powers for the employer to determine the duration of working time will lead to abuses and unjustified overtime.
3. Threatening flexibility. The authors' intention to give the parties excessive freedom in determining the terms of the employment contract gives rise to great concern. By accepting certain working conditions, the employee risks finding himself in a disadvantaged position vis-à-vis the employer. For example, the employment contract may include: grounds for suspension of the employment contract without payment of wages (article 60), grounds for overtime (article 88), cases of recall during periods of leave (article 96), division of annual leave into instalments (article 96), payment of leave (article 104), etc. Employees will be obliged to fulfil these obligations, and in the event of a flagrant breach they will be liable to immediate dismissal (article 68). For example, this could be an article following the disclosure of a trade secret. Article 54 allows the employer, without any justification, to propose a change in working conditions and to introduce it within one week. Although the employer can dispense with "unnecessary" obligations without even changing the terms of the employment contract with an employee. Indeed, in the presence of "circumstances of force majeure", it may suspend the obligations of collective agreements and (sectoral) collective agreements (articles 176, 184).
4. Accelerated redundancy. The termination of the employment contract will be formalised by the conclusion of a supplementary agreement (article 62). In particular, an employer may dismiss an employee for abstract "economic reasons" subject to 60 days' notice (if the employment contract is concluded for a period of up to 4 months, then 5 days). Among the guarantees afforded to employees in the event of termination of the employment contract at the employer's initiative (article 74), there is no prohibition on dismissal during holiday or sick leave. Workers with children over the age of one and a half may be dismissed on general grounds, which considerably lowers the level of guarantees compared to the current article 184 of the Labour Code. The employer's obligation to take into account the overriding right to remain at work when dismissing employees has been removed (in particular, the level of qualification, seniority, family situation, etc. do not have to be taken into account). At the same time, it is not necessary to offer another vacant post! All this will save you from having to prove a breach of the law in the event of unlawful dismissal. If an employee has a fixed-term employment contract of up to 4 months, he or she may be dismissed if he or she is absent due to illness for 15 consecutive working days (article 69 of the draft). Set out in article 73 of the draft, the procedure for agreeing the employee's dismissal with the union has virtually no effect: the employer has the right to inform the union 6 working days before the planned date of dismissal, and may initiate consultations. Article 83 considerably weakens the incentives for timely final payment in the event of termination of employment. Instead of a penalty corresponding to the average daily wage for each day of delay, a penalty of 0.5% of the amount due for each day of delay is introduced.
5. Health savings. Compared to Article 4 of the current Holiday Act, Article 94 of the draft does not provide for holidays such as: additional holidays for work in adverse and difficult working conditions; additional leave for the particular nature of the work; sabbatical leave; holidays for preparation for and participation in [sporting] competitions. This will have a negative impact on the well-being and motivation of employees. The minimum amount of expenditure for work protection is cancelled! Employers are only required to fund measures for the safety and health of employees at work up to the amount necessary for this purpose (Article 155 of the draft). There is no standard similar to that set out in Art. 160 of the Labour Code, specifying that the employer is responsible for constantly monitoring employees' compliance with the requirements of regulatory acts on work protection. As a result, it will be more difficult to prove that industrial damage has occurred as a result of the employer's failure to fulfil his duties, and to obtain moral damages from him.
So when the state demands a sacrifice from its citizens, it is infringing their right to earn a living and provide for their families. The approval of such a document by the Cabinet of Ministers of Ukraine and its subsequent transfer to the Verkhovna Rada of Ukraine is a sign of contempt for European standards and the fate of Ukrainian trade unions. Ukraine's new Labour Code will help the most insolent employers to "fight back" against the growing demands of their employees, but it will not bring economic growth any closer. The current economic crisis is caused, among other things, by the shortage of labour, and such reforms will only make it worse. The owners of capital have chosen the most propitious moment to promote their reforms: when the Ukrainian people's attention is focused on the ongoing war and politicians are not stopped by the prospect of elections or demonstrations. We would like to believe that under the conditions of European integration, all these issues will be properly assessed by the international community and that Ukrainian workers will find a new incentive to unite in force to save their rights from the capitalist predators.