The Labor Code of Ukraine will be changed. Analysis of the Labor Lawyer.
In February of this year, the Parliament of the country (VRU) registered the Draft Law on the rights of workers, namely: “On Amendments to the Labor Code of Ukraine regarding the definition of the concept of labor relations and signs of their existence” No. 5054.
We will try to analyze the changes, what new norms will be introduced, and it is worth employers to think about adaptation to new conditions right now.
As we know, the labor market usually distinguishes 2 main forms of interaction – an employment contract with an individual, or a civil law contract / business contract with business entities.
In Ukraine, more than once they tried to determine the signs of labor relations at the level of the Law, but so far this has not been possible.
But, for example, the Supreme Court in its decisions (in case No. 200/929 / 19-a of 09.24.2020) determined the signs of labor relations, referring to the Recommendations on labor legal relations No. 198 of the International Labor Organization.
What does the Cabinet of Ministers of Ukraine propose in this draft law?
The key point is to establish the principle of the presumption of labor relations.
This is dictated by the desire of the state to provide all de facto workers with protection tools provided for by the Labor Code, such as sick leave, vacation, various guarantees and compensations, measures aimed at protecting motherhood, etc.
This principle will work as follows:
1) Signs of labor relations are fixed in the Labor Code
2) If there are 3 of them, the relationship is considered labor, despite their legal registration.
In this case, the employer must conclude an employment contract in order to prevent the imposition of a fine by the supervisory authority.
A labor law lawyer will help you to draw up the documentation correctly.
Signs of an employment relationship:
- If working conditions were organized (creation and arrangement of a workplace, provision of any tools or other means provided for the performance of such work) and all this was created by a person who is a certain customer (interested).
- If the duration of working hours, and, of course, the time for rest is set by the employer / customer.
- If there is a reimbursement of travel, travel, business trips and other expenses directly related to the performance of work
- If the payment of remuneration for work in cash or in kind is systematic.
- If the work that is being performed relates to a specific position, profession or qualification and is performed on behalf of or under the supervision of a person (customer, employer, etc.)
- If there is no specific definite result to be achieved within a certain period of time; and is the regulation (constant) of the labor process by the person in whose interests the work is performed
- If the person adheres to the established internal labor regulations;
Who will determine labor relations? Spoiler alert: don’t judge.
It will be the State Labor Service to determine whether it is an employment relationship, or an economic one, civil law.
So, inspectors, based on the results of the inspection visit, will have the right to recognize work as such that is performed within the framework of an employment relationship, regardless of the name of these relationships and the nature of their legal registration.
If you need advice from a labor law attorney, please contact Kapustin & Partners.