A REVIEW OF THE DRAFT LABOUR CODE OF UKRAINE

Ukrainian workers face the serious threat of a major attack on their employment rights under new a draft Labour Code of Ukraine (draft law №1658) which is on the agenda of the parliament – the Verkhovna Rada.  The Confederation of Free Trade Unions of Ukraine Confederation of Free Trade Unions (KVPU) has declared its opposition to this retrogressive new law and demanded measures to “improve to improve the socio-economic and labour rights of workers”.  On May 1^st an even worse labour code was imposed in the Russian sponsored Luhansk Peoples Republic which copies from the draft Labour Code of Ukraine.  Branded a ‘slave Labour Code’ by leading union lawyer Vitaliy Dudin.  Creating a situation where workers and trade unionists across partitioned Ukraine face attacks on their rights at work.  Published below is an exclusive analysis by the KVPU.

Christopher Ford

There is the threat that the next week Verkhovna Rada of Ukraine will try to consider the draft Labor Code of Ukraine (№ 1658 dated 20.05.2015, revised), the norms of which worsen the workers` rights. The Confederation of Free Trade Unions of Ukraine have been repeatedly stressing that labor legislature cannot be worsened during the crisis and the absence of the solved issues of the social protection of citizens.

The Confederation of Free Trade Unions of Ukraine with the community organization  Labour Initiatives  have prepared a short analysis of the draft Labor Code.

1. The draft Labor Code of Ukraine provides broad unilateral power to employers to adopt regulations in the sphere of labor, which contradict the current legislation (Article 12)

The Constitution of Ukraine governs labor relations in Ukraine, followed by international treaties, the code of labor laws, other laws of Ukraine, acts of President of Ukraine and the Cabinet of Ministers of Ukraine. At the same time, Article 12 of the draft Labor Code of Ukraine, allows the employer to adopt his own regulations in the sphere of labor by issuing orders, decrees, decisions. The employer shall adopt regulations independently. With right to adopt own regulations in the sphere of labor, the draft Code gives employers the possibility to avoid collective bargaining.

2. The violation of the inviolability of the workplace (Article 30)

Under the code, the employer has the right to monitor the performance of the employees` job duties, including the use of technical means (e.g., video surveillance), due to the peculiarities of production, but the concept of “peculiarities of production” is not specified (Article 30). Unclear language is an entry point for abuse and it may lead to the unjustified psychological pressure on the worker during his work.

3. The employer is given the right to transfer employees to another employer (Article 68)

Under the draft code, the employer has the right in case of downtime and by agreement with another employer to temporarily transfer an employee given his consent to work for another employer. However, such transfer in practice will be forced, because the employee may consent under pressure or in fear of losing his job. In addition, the period of such transfer is not settled (article 68).

4. Expanded, poorly defined, and unilateral grounds for dismissal:

– Disclosure of commercial secrets, which in accordance with the article 505 of the Civil code can be information of technical, organizational, commercial, industrial and other nature (p. 2 p. 2 art. 93). Such a broad wording of a clause can give the employer a right to dismiss a worker for example, for disclosure of their own salary rate.

– Insufficient qualification of employee confirmed by results of attestation, other evidences (art. 94). This clause provides an unclear standard, open to manipulation. It may allow employers to conduct attestation, in particular, for dismissal of undesirable employees, where the impartiality of attestations is unchallengeable. Moreover, the concept of “other evidence” in the section is not defined, which in practice can let an employer confirm or deny the qualifications of an employee for wholly arbitrary and subjective reasons.

– An employee is subject to dismissal without notification in case the worker refused preventive inoculation or medical inspection (Article 74).

5. Unilateral assignment of overtime work

Under the draft code the assignment of overtime work does not require the consent of the representing trade union. According to Article 150 of the draft LC, the consent of the employee is required, and the union is only notified.

This is another example where the draft code interferes with collective bargaining industrial relations in favour of one-on-one relations between the employer and employee. Again, this in effect makes decisions unilateral as individual employees have no real negotiating power absent collective bargaining. In case of engaging of employees to work on their days-off, public, and religious holidays the approval of the union is not required at all, a copy of the order on engaging is transmitted to the union the next day after signing it (articles 159 and 161).

6. Long term of the unpaid leave may become the subject to abuse (Article 199)

Article 199 of the draft LC assumes that for family reasons and other grounds, the employee, at his request may be granted leave without pay for up to three months. However, establishing such a long leave without pay contains risks of violation by employers, as it actually provides the ability to use such long term and the “consent” of the employee to resolve other issues of activity of the enterprise, institution, organization, without the payment of wages to the employee. With current labor law employers successfully use the opportunity to issue employees a leave without pay and extend its period, despite the fact that according to the art. 84 such leave shall not exceed 15 calendar days in a year. Protections from such abuse are necessary, including consent of the relevant trade union.

7. Assignment of additional duties

Under the draft code the employer is provided with the power of assigning the worker to perform additional duties, if the volume of work by employment function does not ensure full employment. And if “additional function” is lower paid than the main, no extra payments will be carried out (article 37).

8. The draft Code excessively expands the possibility of concluding fixed term contracts

Article 60 of the draft LC provides extended range of grounds for the conclusion of fixed-term labour contracts, in particular, during the execution of a specific amount or type of work, a deadline which cannot be defined by a specific date; to perform work associated with the temporary (up to one year) expansion of production or volume of services provided by the relevant employer; as well as with teaching staff, appointment to which is made on the results of the competition for a specified period, which, as rightly mentioned main scientific and expert Department, does not automatically specifies the limited nature of their work. The likely result is that employers shall be more interested in the expansion of the volume of work, defined in the fixed term contract, than in the full employment.

9. Excessively broad authority of the employer to define the contents of labor contracts

Article 31 of the draft LC determines that labor contract is the ground for emergence of labor relations. Along with the obligatory conditions, additional conditions, relating to the conditions of work, probation period, reservations concerning the impossibility to disclose any commercial secrets or other information protected by law, professional training, retraining, advanced training etc., can also be determined in the labor contract (paragraph 3 of Article 33). The proposed mechanism can have negative consequences for the employee as the employer shall be able to elaborate advantageous labor contracts, deliberately biased, as one of the parties is practically deprived of its right to put out proposals. Given clause is too broad, that may lead to the situation when the conditions, which may possibly put the employee to the discriminatory and dependent position, shall be unilaterally included to the labor contract.

9. Inadequate mechanism of protection from unlawful dismissal

Article 110 of the draft LC provides opportunities to the employee for protection against unlawful dismissal, by providing possibility to present the proofs of qualification level, performance, commitment to work, legality of their actions or omissions, to give explanations on violations if any or improper performance of employment duties. However, this procedure in practice does not allow the employee to avoid dismissal, because there is no mechanism of consideration of such explanations. Usually they are perceived formally, therefore do not affect the decision on dismissal.

10. Weakening or removal of trade union role in dismissals

According to the draft code, approval of the trade union for the dismissal of employees is required only in case of staff reduction. (Article 86), health status of employee confirmed by corresponding medical conclusion; insufficient qualification of employee confirmed by results of attestation, other evidences (subparagraphs 1,2 of paragraph 1 of Article 93). Approval of the trade union is not required on grounds provided by articles 92-97 of the draft LC such as “non-fulfilment or improper fulfilment of employment duties by employee”, “disclosed inadequacy of the employee to the position”, “absence of the employee at work as a result of his temporary disability”, “disclosure of the commercial secret”, etc. This would significantly weaken the role of trade unions, provides peremptory power to the employer and deprives the employees with possibilities to negotiate an agreeable outcome with the employer. Such clauses can be destabilizing to industrial relations.

11. Restriction of the rights of women with children

–  according to the article 108 of the draft LC, it is permitted to dismiss single mothers having children aged under 15 on the general grounds provided in article 92 of the Code such as non-fulfilment or improper fulfilment of employment duties by employee (by the way, two disciplinary sanctions per year (which were not cancelled) shall be considered to be regular non-fulfilment or improper fulfilment of employment duties by employee); absence (including for more than three hours during working day without justifiable reasons); disclosure of commercial or other information protected by law etc;

– according to the draft code article 291, women who have children to the age of fourteen or a disabled child may be involved in night work, overtime work and work weekends, days of public and religious holidays, time when work not done with their written consent. According to the current labor legislation, mothers with children under three years may not be involved in night work, overtime work and work weekends, days of public and religious holidays.

12. The possibility to expand the working day by the establishing the work regime under conditions of the irregular work hours (Article 153)

Employers are interested in establishing the regime of the irregular work hours because they can make employees work more than 40 hours per week without additional payment.

13. The draft LC introduces discriminatory (for the employee) rules of work of the commission on labor disputes

Decisions of the commission on labor disputes is taken by the agreement of all the members of the commission participating in the session, and in case of disagreement of at least one of the members, the decision is considered as non-adopted (Article 389). This makes the functioning of the commission an inappropriate mechanism of settling labor disputes, as commission on labor disputes is formed on parity basis from the representatives of employers and employees. Furthermore, decisions of the commission on labor disputes, is obligatory for the parties to a labor dispute and shall be subject to voluntary compliance (Article 392). In other words, it is not understandable who shall carry out the decisions of the commission on labor disputes and how.

14. The draft LC establishes discrimination on the place of work

Employees of small companies shall be notified of their dismissal in connection with staff reduction one month prior to their dismissal, not two months (Article 88).

According to the Civil Code, small companies are those where usually work up to 50 people, that`s why it will be advantageous to the employer to fictitiously diminish their companies and conclude with employees fixed term labor contracts, as the employee, who concluded the contract for two months, can be fired by the employer and notified about that two weeks before (Article 61).

15. Almost all the norms of the current Code on labor laws of Ukraine and laws governing trade union relations are not included to the draft Labor Code

This puts an average employee into the discriminatory and dependent position, violationg Article 22 of the Constitution of Ukraine, which defines that narrowing of the contents and scope of the existing rights and freedoms are not permissible during the adoption of new laws and modification of the existing ones.

This next draft LC almost doesn`t differ from the previous variants and its adoption may lead to the narrowing of the rights of workers in Ukraine. That`s why this edition of the draft LC also deserve the most decisive protest against its adoption.

(Translation by Tristan Masat, Solidarity Centre, Kyiv, )