The Confederation of Free Trade Unions of Ukraine (KVPU) has sent the following submission in protest at the draft Labor code of Ukraine which violates the international labour standards to the International Labour Organization. The KVPU also wrote to the International Trade Union Confederation and the IndustriAll Global Union on this issue.
Observation regarding the draft Labor code of Ukraine
violating the labor standards set by ILO
The Confederation of Free Trade Unions of Ukraine has to draw Your attention once again to the draft law No. 1658 – the Labor Code of Ukraine. It violates the labor standards set by the International Labor Organization and threatens the existence of free trade unions in Ukraine.
Declaration concerning the aims and purposes of the ILO as an Annex to the ILO Constitution establishes the fundamental principles on which the Organization is based, in particular: labor is not a commodity, freedom of expression and of association are essential to sustained progress.
Article 22 of the Constitution of Ukraine stipulates that human and citizens’ rights and freedoms affirmed by this Constitution are not exhaustive. Constitutional rights and freedoms are guaranteed and shall not be abolished. The content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws or in the amendment of laws that are in force.
Unfortunately, the above-mentioned high principles still remain as declarations in Ukraine and have only some common features with real life. Ukrainian civil society faces increasingly legislative restriction of constitutional rights and freedoms on the part of the authorities, who declared in their pre-election slogans of loyalty to European values and the election of a civilized and legal vector of development of Ukraine.
On 5 November, 2015 the Verkhovna Rada of Ukraine adopted the draft Labor Code in the first reading. After receiving the Memorandum of technical comments to it by the ILO and after work on making changes in frames of the working group at the Committee on Social Policy, Employment and Pensions of the Verkhovna Rada it was introduced to Ukrainian Parliament for a second reading and vote in general.
Confederation of Free Trade Unions of Ukraine made a comparative analysis of two versions of the draft Labor Code contained in the “Comparative table to the second reading dated on 24 July 2017” available on the official web-site of the Verkhovna Rada
http://w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=53221. After analysis Confederation found that the last version of the draft Labor Code differs greatly from the previous one. And in most cases these amendments are worser.
Almost a third of 59 recommendations to the draft Labor Code noted by the ILO experts are remained unaccounted.
Particularly – the important ones on the prevention of discrimination against women and minors; inadmissibility of the use of labor as a commodity; misuse of employers’ rights and others.
Regulations of the employer adopted without proper monitoring by trade unions can absolutely substitute collective and contractual relationship between employer and employee and become the only single source of employer`s abuses and labor relations regulation.
The list of cases where labor relations can be established for a specified period (Article 58 of the draft) is even more extended without any ground.
Under Art. 82 of the draft Labor code, the employee may be transferred to work to another employer by agreement between employers. Such provision is a violation of the draft Labor Code itself. In particular, according to p. 1 of Art.31 of the draft, a labor contract is an agreement between an employer and employee. Under p. 2 of Art. 32 place of work (indicating the structural subdivision of the employer – legal entity) is a mandatory condition of the labor contract. And under par. 1 of Art. 60 an employer has no right to change conditions of the labor contract without employee’s consent.
The acceptance of an employee to work for another employer may be the result of the termination by the employee of the employment agreement with the previous employer, but not the “agreement of the employers” among themselves.
The Philadelphia Declaration, adopted at the General Conference of the ILO on May 10, 1944, proclaimed the principle of “labor is not a commodity” as one of the main principles on which the ILO is based. Therefore, any attempt to eliminate an employee from an independent, free decision on the change of employer as a party to a labor contract is a violation of this fundamental principle of the International Labor Organization.
Art. 86 of the draft Labor Code enshrines “needs of an employer” as a ground for dismissal. But such formulation makes absurd other grounds as all of them are somehow captured by the term “needs of an employer”. Refusal of an employee to continue working in connection with changes in essential working conditions is not related to reduction, and is an independent ground for
termination of labor contract (p.6 Art.36 of the valid Code of Labor Laws of Ukraine).
Amendments to Art. 88 of the draft Labor Code provide that notice on subsequent reduction can be replaced by monetary compensation. Procedure of notification in case of reduction provides extra time for an employee to find a new job and also an opportunity to obtain another position at the same employer for two months. Refusal from such a right is not an adequate substitute instead of compensation. Besides, an employer can insist on such condition of a labor contract when an employee usually wills to make concessions just to obtain a position.
Art. 92 of the draft Labor Code missed the definition of the length of time for which, as a result of absenteeism, the employee can be dismissed. In such a way, employer has an opportunity to dismiss an employee for any period of absence at work (for example, a 15-minute delay).
Amendments to Article 93 of the draft Labor Code divide the term for employee’s notice of dismissal at the initiative of the employer – from one month to two weeks.
Considering that the non-compliance of the employee with the position or work to be performed will be established by the employer himself (the certification, which will result in the release of the employee, will be conducted by the commission, the composition of which will be determined by the employer, and appeal of the decision of such commission is possible only to the employer himself (Article 329 and 330) is a direct path to employer’s abuse of his rights.
Article 96 of the draft Labor Code has also been amended – twice the shortened time period an employee has to provide to the employer information on the reasons for his absence – from four to two months. In conditions of unpublished war against Russia, a person may fall into such circumstances, when providing information about her stay is impossible. Two months later, the employer will be completely entitled to terminate the employment relationship without the right to renew.
Amendment to Art. 107 of the draft Labor Code extends the ability for an employer to dismiss an employee during the period of temporary disability (for example, during sick leave).
Art. 109 allows to dismiss on the initiative of an employer pregnant women and women with children under three years or children with disabilities. Such provision violates Art. 6 of the ILO Maternity Protection Convention No. 103 (revised in 1952).
Under Art. 141 the duration of daily work is extended from ten to twelve hours.
Changes to Article 168 of the draft Labor Code are deprived of the right to additional social holidays for victims of the Chornobyl catastrophe. The right to receive additional paid leave for 14 working days per year is defined as compensation for the victims of the Chernobyl disaster and enshrined by the Law of Ukraine “On Holidays” and the Law of Ukraine “On the Status and Social Protection of Affected Citizens as a result of the Chernobyl disaster “.
Due to amendments to Article 175 of the draft Labor Code childcare leave for a child under the age of three is excluded from seniority giving entitlement to annual basic leave.
The amended Art. 199 of the draft Labor Code deprives the employee`s right to receive childcare allowance until the child reaches three years old. This provision narrows the rights of an employee, because such childcare allowance is provided by par. 3 Art. 179 of the current Code of Labor laws of Ukraine.
Amendments to Article 201 of the draft Labor Code – the list of vacations that are carried over to another period are excluded: social leave for family-related workers that has not been used in the current calendar year.
Article 205 of the draft Labor code was modified in such a way that the employer will be entitled to establish additional unofficial duties for the worker.
Art. 210 was amended by the phrase “as a rule” to the definition of wages that allows the employer to pay wages by goods or services that are not needed worker.
An amendment to Art. 214 gives an opportunity to reduce benefits which form part of an employee’s wage.
A provision on the priority order of wages payment to employees from the funds received on account of the employer in banks, as well as funds obtained from the sale of property of the employer, and from other sources in case of renewal of the debtor’s solvency or declaring its bankruptcy.
The following compensation for unused annual leave will be excluded from Art. 251 of the draft Labor Code:
– compensation for all unused days of annual paid leave, as well as social leave to employees with family responsibilities who have children or adult children disabled since childhood (subgroup A group I);
– compensation for unused days of annual paid leave for the entire duration in case of dismissal of managerial, pedagogical, scientific, scientific and pedagogical employees, specialists of educational institutions who has worked at least 10 months before dismissal.
Article 253 does not contain a provision concerning preserving the place of work (position) and average wages for employees recruited during mobilization for the special period and who are subject to discharge from military service in connection with the demobilization announcement but continue military service because they signed an enlistment contract.
Due to amendments to Art. 255 provision regarding progressive severance benefits based on seniority in case of termination of the labor contract because of reduction was eliminated.
An amended Article 315 of the draft Labor Code diminishes the role of collective agreement between employer and employees as the possibility to provide an increased duration of the vacation was cancelled.
Article 322 of the draft Labor Code excludes a state guarantee of availability and free of charge education in public and communal educational institutions and the development of vocational, higher and postgraduate education.
The draft Labor Code provides a broad individual power for employers to adopt regulatory acts in the field of labor, which contradicts the Constitution of Ukraine and current legislation.
Labor relations are regulated by ILO Conventions, Constitution of Ukraine, international treaties, laws of Ukraine, acts of the President and the Cabinet of Ministers. However, article 12 of the draft Labor Code entitles employer to issue own labor regulatory acts in form of orders, decisions etc. In such a way an employer will be entitledto avoid collective bargaining.
The draft Labor Code legitimizes the creation of “pocket” trade unions – monopolists, with which the employer will coordinate their regulations. In violation of the current legislation of Ukraine, in particular, the law “On trade unions, their rights and guarantees of activity”, the employer’s regulatory acts will be approved only with the election body of the primary trade union organization (trade union representative), which unites the majority of employees who work with this employer (part 3 of paragraph 2 of Article 12 of the draft).
Thus, draft Labor Code violates p.3 Art. 36 of the Constitution of Ukraine concerning equal rights of all trade unions as well as the ILO Convention No.87 “Freedom of Association and Protection of the Right to Organise” which provides in Art. 2 that workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation. Part 2 of Article 8 of the ILO Convention No. 87 establishes that
national law shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.
The draft Labor Code creates a legal opportunity to conduct competitions for any workplace. In accordance with part 3 of Article 25 of the draft, the employer has the right to recruit employees by conducting a competition in cases provided for by its own regulations or constituent documents. The draft Labour code violates the right to freedom and personal inviolability. Under Art.29 an employer will be entitled to monitor the performance of the employees` job duties, including through the use of technological means (not only surveillance, but also other means to control employee`s behaviour) if it is caused by “production peculiarities”. But the last term is not specified. The vagueness of the term will be a ground for abuse and can lead to unnecessary psychological pressure on the employee at the workplace.
The draft Labour code legitimize additional obligations for an employee which are not provided by the labor contract. Under p.3 Art. 32 additional conditions can be “included” to the labor contract after its conclusion. Among them provisions concerning “working conditions, probation, limitations on disclosure of commercial and other information protected by law, vocational and advanced training etc”.
The draft Labor Code significantly expanded the possibility of concluding fixed-term employment contracts. According to Article 35 of the draft, labor contracts may be concluded for an indefinite period of time. For an indefinite period, it is considered to be concluded only if the law or the labor contract does not stipulate another (Part 2 of Article 35 of the draft). Thus, any labor contract can be concluded for a definite period of time.
The draft Labor code legalized modern slavery. Under Art. 66 of the draft employer is entitled to transfer an employee temporarily to another employer including to free or vacant position for a period of six months. Part 2 Article 66 gives the right to an employer to transfer an employee for a period of three months in case of downtime (temporary suspension of work due to lack of organizational or technical conditions required for its performance, force majeure or other circumstances).
Art. 58 provides a broadened list of grounds for concluding fixed-term labor contracts.
The draft Labour code introduces discrimination at the workplace. Under Art.88 of the draft employees of small enterprises will be warned one month
before reduction instead of two for other categories of employees. The definition of the “small business entity” is missed. The draft law adds a number of poorly defined grounds for dismissal at the initiative of the employer. For instance, under par.2 p.2 Art. 92 an employee can be dismissed for disclosure of commercial information. The draft does not contain the definition of “commercial information”. According to Art. 505 of the Civil code of Ukraine, such information can be considered the technical, organizational, commercial, industrial and other nature. Such broad definition will entitle to dismiss an employee for instance for the disclosure of the employee’s own salary etc.
According to the draft Labor code, an employee may also be dismissed due to lack of qualifications, which is confirmed not only by the results of attestation, but also by other evidence (paragraph 2 of part 1, Article 93 of the draft). This wording implies an incomprehensible standard that provides opportunities for abuse and will allow employers to conduct certification, in particular to release undesirable workers. Objectivity and impartiality of these attestations can be questionable. In addition, the term “other evidence” in the article is not specified, which in practice will enable the employee to confirm or refute the qualifications by any absolutely arbitrary evidence and may lead to dismissal for subjective reasons.
In accordance with the draft Labor code, in case of non-implementation of preventive vaccination or without medical examination, the employee is subject to dismissal without notice (Part 3 of Article 93 of the draft).
Article 109 of the Draft Labor Code allows to fire single mothers with children under the age of 15 on the general grounds provided for in Article 92 of the draft. For example, in the case of a systematic failure to perform or improper performance by the employee of employment duties (incidentally, systematic failure to fulfill or improper performance of labor duties by an employee, to which at least twice a year the disciplinary measures were applied, and they have not been removed on the day of violation); absenteeism (absence of work during the working day without valid reasons); disclosure of commercial or other information protected by law, etc.
The draft Labor Code establishes a non-effective mechanism for protecting workers from unlawful dismissal. Part 1 of Article 112 of the draft, which provides the employee with the opportunity to protect against unlawful dismissal, is not supported by the mandatory procedure for the assessment and consideration of evidence provided by the employee.
The draft Labor code restricts the scope of women’s rights with children. Out of the category of workers who are prohibited from engaging in work at night, (Article 142) women with children under three years of age (Article 55, Article 176 of the current Labor Code) are excluded; women except in cases stipulated in Article 175 of the current Labor Code (Article 55 of the current Labor Code).
Pursuant to p. 2 Art. 153 of the draft Labor code overtime works may be performed without the permit of trade union. It is sufficient to notice trade union and get formal consent of an employee. This is another example when the rules of the draft Labor code bypass collective labor relations, preferring the relationship between the employer and the employee without the protection of a trade union. This will lead to the adoption of the employer’s unilateral normative acts, because the employees have no real influence on this process, except through collective bargaining.
According to p. 5 of Art. 164 of the draft engagement of certain employees in work on days-off, national and religious holidays will be possible without the union permit. The copy of the order was transferred to trade union next day after its signing.
The draft Labor Code eliminates trade unions and significantly weakens their role in agreeing on the release of workers. According to the draft, the consent of the union to dismiss workers is necessary only in case of their layoff (Article 86), according to the state of health, which is confirmed by the relevant medical report, and due to lack of qualifications, which is confirmed by the results of attestation, other evidence (subitem 1.2 of the part 1 Article 93). Of all other grounds stipulated by Articles 92-97 of the draft, among which “failure to perform or improper performance by the employee of his employment duties”, “a mismatch of the employee’s position has been detected”, “Non-appearance of an employee for work as a result of temporary disability”, “disclosure of commercial secrets” and others trade union agreement is generally not needed. t provides unlimited power to the employer and deprives employees of the opportunity to negotiate with him. This provision may have a destabilizing effect on labor relations.
The draft Labor Code introduces discriminatory rules for the work of the Сomission on labor disputes. The decision of the Commission on labor disputes is adopted unanimously by all members of the commission who participate in its meeting. And in case of disagreement with at least one member of the commission with a decision that is proposed for adoption, it is considered unacceptable (Article 377 of the draft). Such a rule makes the functioning of the
commission unnecessary as a mechanism for resolving labor disputes, since the commission is formed on a parity basis from representatives of employers and employees. In addition, the decision of the commission on labor disputes is voluntary, and not obligatory for execution (Article 379 of the project).
According to the draft Labor Code, the employer will be able to claim full compensation of the employee for pecuniary damage in any case, simply by including such a clause in the employment contract, or if the property damage was caused as a result of the disclosure of commercial secrets (Article 355 of the draft).
The draft Labor Code contains many articles that have a legal interpretation and will be used by employers to put pressure on workers and mislead them, as employers have more opportunities to interpret labor laws.
The draft Labor code violates fundamental rights established by the ILO, in particular: freedom of association – ILO Convention No.87, right to collective bargaining – ILO Convention No.98, abolishment of forced and compulsory work – ILO Convention No.26 and 105, prohibition of employees discrimination – ILO Convention No.100 and 111.
We draw your attention to the existing features in Ukraine that affect the processes of social and labor relations: corrupt and non reformed courts, which the population does not trust, lack of real social dialogue in Ukraine and low level of protection on behalf of trade unions. In such circumstances, it is impossible to change fundamental rules of interaction between the state, business and society. This will inevitably lead to negative consequences.