What employer shall know about organisation of labour relations during martial law – important changes to Ukrainian labour laws

On 24 March 2022, the Law of Ukraine “On Organisation of Labour Relations during Martial Law Status” (the “Law”) came into force.

The Law significantly expands the employer’s powers in labour relations during martial law, while significantly limiting labour rights and guarantees of employees. It is envisaged that the Law expires as of the date of termination or abolition of martial law status.

It shall be noted that certain wording of the Law, especially in terms of territoriality, causal links between armed aggression, hostilities, and the employer’s inability to perform certain duties or grounds for the employer to apply the relevant provisions of the Law are quite ambiguous. Issues concerning the range of employers that can legitimately refer to such rules and the procedures for proving that they have grounds to apply such rules seem to be problematic.

The Law stipulates that for the period of martial law status:

A new concept of “suspension of employment agreement” is introduced. It is defined as the employer’s temporary suspension of providing work to the employee and temporary suspension by the employee of work under the employment agreement caused by military aggression against Ukraine, which excludes the possibility of providing and performing work. The procedure for suspension of the employment agreement and its formalisation remain unregulated, as the Law provides only for the option of notification, if possible, by the employer and the employee of each other of the suspension of employment agreement in any available way. At the same time, the Law imposes the obligation to reimburse salary and other payments to employees on a country that carries out military aggression against Ukraine. Still, it does not say anything about the obligation to pay salaries and other payments to employees during the suspension.

Employers are permitted:

• to postpone salary payment until the resumption of the company’s activity in case of impossibility of its timely payment due to hostilities;
• change material working conditions without prior two months’ notice to employees. In other words, such changes may take effect immediately;
• to take a decision on dismissal of the employee on its own initiative during sick leave and vacation (except for maternity leave and child care leave for up to three years) and without trade union consent;
• transfer the employee without his/her consent to another job not stipulated in the employment agreement, including to another area (except the area where active hostilities continue) to prevent or eliminate the consequences of hostilities, as well as other circumstances that pose or may pose a threat to human life or normal living conditions;
• suspend certain provisions of the collective bargaining agreement.

The rights and guarantees of employees regarding norms of working hours and rest time are cancelled:

• normal working hours are increased to 60 hours per week and 50 hours per week (for reduced working hours regime) instead of 40 hours per week and 24/36 hours per week, respectively; the Law, however, is silent on of salary matters in connection with such working hours increase;
• the duration of weekly uninterrupted rest is reduced to 24 hours (instead of the usual 42 hours);
• any restrictions on overtime work are lifted (under the general rule, overtime work shall not exceed 4 hours for two consecutive days and 120 hours during the year);
• the restriction to use workforce during weekends, holidays and non-working days and, accordingly, the need to pay for such work in double amount, is cancelled;
• the reduced length of working day on the eve of holidays and non-working days and at night is cancelled.

The rights and guarantees for certain categories of employees are withdrawn:

• employees involved in critical infrastructure are not allowed to terminate employment on their own initiative within the period specified in the dismissal application on the basis of the conduct of hostilities in areas where a company is located and the existence of a threat to life and health of the employee, and vacation of any kind may be denied;
• the ban on setting a probationary period for certain categories of employees is lifted;
• it is allowed, with their consent, to involve in night work pregnant women and women with a child under one year of age, persons with disabilities, who are contraindicated for such work according to medical recommendations;
• it is allowed, with their consent, to involve women (except pregnant women and women with a child under one year of age) in heavy work and work with harmful or dangerous working conditions, as well as underground work;
• it is allowed, with their consent, to involve employees who have children in night and overtime work, work during weekends, holidays and non-working days, to send them on business trips.