We publish below a joint appeal to President Zelensky by all the trade union federations of Ukraine in opposition to the Law 5161 introducing “zero-hour” contracts and Law 5371 abolishing labour rights in Small and Medium Enterprises, which were approved in their second reading by the Ukrainian Parliament on July 19. These laws will abolish important labour rights and some of the very last protections safeguarding workers.
JOINT REPRESENTATIVE BODY OF REPRESENTATIVE ALL-UKRAINIAN ASSOCIATIONS OF TRADE UNIONS AT NATIONAL LEVEL
Mr Volodymyr Zelenskyi
President of Ukraine
On application of the right of veto
Dear Mr President,
On 19 July 2022, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Amendments To Some Legislative Acts Regarding Simplification Of Regulation of Labour Relations in Sphere of Small and Medium-Sized Enterprises and Reduction of Administrative Burden on Business” (draft law No 5371).
This law introduces extreme forms of labour relations liberalisation by significantly restricting the labour rights and guarantees of millions of workers who work at enterprises with up to 250 workers.
The Joint Representative Body of Representative All-Ukrainian Associations of Trade Unions at the National Level, starting from April 2021, repeatedly appealed to the Verkhovna Rada of Ukraine with a legal position regarding inadmissibility of the draft law No 5371, which contains a number of extremely threatening provisions that establish discriminatory norms for workers, significantly weaken the level of protection of t workers, narrow the scope of labour rights and social guarantees of workers in comparison with the current national legislation, level the representative and protective function of trade unions, which violates the provisions of Articles 8, 9, 21, 22, 24, 43, 64 of the Constitution of Ukraine and international acts, ratified by Ukraine, as well as Articles 291, 419, 420 of the Association Agreement between Ukraine and the European Union.
The UN Social and Economic Committee and the International Labour Organization warned the Ukrainian state’s leadership against such innovations.
Unfortunately, the mentioned reservations were not taken into account by the people’s deputies of Ukraine. Certain amendments introduced by the subjects of legislative initiative to the second reading, in particular regarding the limitation of the effect of this law during the period of martial law, did not change the discriminatory essence of the norms of this Law.
Thus, the separate Chapter III-B of the Labour Code of Ukraine introduced by the Law No 5371 provides for actual division of workers into several categories regarding level of protection of their rights by labour legislation. For workers of enterprises belonging to legal entities under public law (created by decisions of authorities or local governments), as well as workers of large private companies with more than 250 workers, it is expected to preserve the current regime of protection of labour rights, defined, in particular, by the Labour Code of Ukraine and relevant special laws and by-laws. It is proposed to establish a so-called simplified (contractual) regime for regulation of labour relations for workers of private companies of small and medium enterprises (referred to hereinafter as SMEs), as well as with wages above eight minimum wages.
Novelties of the Law No 5371 allow the employer and the employee to regulate their relations at their own discretion and by mutual agreement in terms of creation and termination of employment relations, wage system, labour standards, amount of wages, taking into account the minimum amount established by law, allowances, additional payments, bonuses, rewards and other incentive, compensation and guarantee payments, norms of working hours and rest in compliance with the norms of the total duration of working week, duration of weekly rest and other rights and guarantees.
At the same time, this Law directly provides for possibility of entering into employment contract between the employee and the employer, which is the subject of SMEs, provisions that will establish additional duties of the employee, grounds for his/her dismissal and responsibility (Article 49-8 of the Labour Code). Do not apply to such workers and Article 43 of the Labour Code, which guarantees trade union protection in case of illegal dismissal at initiative of the employer.
In addition to the above, individualisation of terms of employment contracts, provided for by Law No 5371, will lead to discrimination in the field of labour, in particular, violation of the principle of equality of rights and opportunities, restriction of the rights of workers at the same SME enterprise on grounds unrelated to the nature of work or conditions its execution. Since, the employer will be able to set different wages for workers for the same work, including different amounts of wages, allowances, additional payments, bonuses, different work regimes when performing the same work, different conditions for involving workers in overtime work, night work, holidays, non-working hours and weekends, etc.
According to Article 43 of the Constitution of Ukraine, everyone has the right to work, which includes the opportunity to earn a living by work that he freely chooses or freely agrees to (part one); the state creates conditions for citizens to fully exercise their right to work, guarantees equal opportunities in choosing profession and type of work (part two).
Freedom of work involves the ability of a person to engage in work or not to engage in work, and if engaged, to choose it freely, ensuring that everyone can enter into labour relations without discrimination in order to realise their abilities. For his own by its very nature, the right to work is inalienable and essentially means ensuring exactly equal opportunities for everyone to realise it.
According to the International Covenant on Economic, Social and Cultural Rights of 1966, the state may subject such rights only to such limitations as are determined by law only in so far as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in a democratic society (Article 4).
The Constitutional Court of Ukraine, in Decision No 15-рп/2004 dated 2 November 2004, noted that the rule of law is the rule of law in society. The rule of law requires the state to implement it in law-making and law-enforcement activities, in particular in laws, which in their content should be imbued primarily with the ideas of social justice, freedom and equality.
The second part of Article 64 of the Constitution of Ukraine establishes that the rights and freedoms of a person and a citizen cannot be limited, provided for in Article 24, according to which citizens have equal constitutional rights and freedoms and are equal before the law and there can be no privileges or restrictions for them in any respect.
Taking into account that further implementation of the Law carries real threats of discrimination of the fundamental human right to work, which violates Article 24 of the Constitution of Ukraine, In view of the above, guided by paragraph 30 of Article 106 of the Constitution of Ukraine, we call on you, Mr President, as a guarantor of compliance with the Constitution of Ukraine, to protect labour rights and guarantees of citizens of Ukraine, using the right of veto regarding the Law of Ukraine adopted by the Verkhovna Rada of Ukraine “On Amendments To Some Legislative Acts Regarding Simplification Of Regulation of Labour Relations in Sphere of Small and Medium-Sized Enterprises and Reduction of Administrative Burden on Business” (the draft law No 5371) as such, which does not correspond to Article 24 of the Constitution of Ukraine and the European integration course of our country.
Glory to Ukraine!
With respect and hope for a fair decision,
President of Federation of Trade Unions of Ukraine
President of Confederation of Free Trade Unions of Ukraine
President of Federation of Trade Unions of Transporter Workers of Ukraine
President of Association of All-Ukrainian Autonomous Trade Unions
President of Association of All-Ukrainian Trade Unions and Trade Union Associations “Unity”