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Publication date: 21.04.2024
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Questions regarding the effect of certain provisions of the Law "On the Organization of Labor Relations in Martial Law": updated answers
The National Agency of Ukraine for Civil Service Issues has provided updated answers to questions regarding the Law of Ukraine dated March 15, 2022 No. 2136 "On the Organization of Labor Relations in Martial Law" (hereinafter - Law No. 2136) for local self-government officials.
Do the provisions of Article 3 of Law No. 2136 (regarding specifics of transfer to another job and changes in essential working conditions under martial law) apply to local self-government officials who are appointed on a competitive basis?
Part three of Article 1 of Law No. 2136 stipulates that during the period of martial law, the norms of labor legislation, laws of Ukraine "On Civil Service", "On Service in Local Self-Government Bodies", other legislative acts regulating the activities of civil servants, officials persons of local self-government in terms of relations regulated by this Law.
In addition, Law No. 2136 is part of the labor legislation, and local self-government officials are subject to the labor legislation of Ukraine, taking into account the peculiarities provided for by Law of Ukraine No. 2493-III of June 7, 2001 "On Service in Local Self-Government Bodies" (further — Law No. 2493).
Thus, the provisions of Article 3 of Law No. 2136 apply to local self-government officials.Can a local self-government official resign at his own will within the period specified in his application in connection with the conduct of hostilities in the areas where the local self-government body is located?
In addition to the general grounds provided for by the Labor Code of Ukraine (hereinafter referred to as the Labor Code), service in local self-government bodies is terminated on the basis and in the manner specified by the Law of Ukraine of May 21, 1997 No. 280/97-BP "On Local Self-Government in Ukraine", Law of Ukraine dated June 7, 2001 No. 2493-III "On service in local self-government bodies" and other laws of Ukraine (part one of Article 20 of Law No. 2493).
Law No. 2136 is a part of labor legislation, and its norms, defined in Article 4 of this Law, contain a case in which an employee can terminate an employment contract on his own initiative within the period specified in his application.
In the opinion of the NADS, in connection with the conduct of hostilities in the areas in which the local self-government body is located, and the existence of a threat to the life and health of a local self-government official, such a person may terminate the employment contract on his own initiative within the period specified in her statement (except for cases of forced involvement in socially beneficial works under martial law, involvement in the performance of work on critical infrastructure objects).
Will the basic annual leave of a local self-government official be reduced from 30 to 24 days in connection with the entry into force of the Law of Ukraine dated July 1, 2022 No. 2352-IX "On Amendments to Certain Legislative Acts of Ukraine on Optimizing Labor Relations"?
In accordance with the first part of Article 12 of Law No. 2136, during the period of martial law, the provision of annual basic leave to an employee by the employer's decision may be limited to 24 calendar days for the current working year.
Therefore, there is no automatic reduction of vacation days in connection with the extension of the provisions of Law No. 2136 to local self-government officials. Reduction of the number of these days is possible by the decision of the relevant head (village, settlement, city mayor, head of the district, district in the city, oblast council).If the duration of an employee's annual basic leave is more than 24 calendar days, the provision of unused days of such leave during the period of martial law shall be transferred to the period after the termination or cancellation of martial law.
Can a local self-government official take seniority leave during martial law?
Part six of Article 21 of Law No. 2493 stipulates that officials with more than 10 years of service in local self-government bodies are granted additional paid leave of up to 15 calendar days. The procedure and conditions for granting additional paid vacations are established by the Cabinet of Ministers of Ukraine. According to Article 12 of Law No. 2136, during the period of martial law, the employer may deny the employee unused annual leave days.
Please note that the provisions of Law No. 2136 do not provide for the manager's authority to limit the number of days of additional vacations, unlike the number of days of annual basic vacation.
However, the manager can refuse to grant unused days of annual both basic and additional vacations during the period of martial law.
Therefore, annual additional vacations for the current period, in particular vacations for years of service, can be granted to local self-government officials in accordance with the established procedure. Instead, the manager can refuse to grant unused days of such leave in previous periods.
Separately, we draw your attention to the fact that the second part of Article 12 of Law No. 2136 establishes that during the period of martial law, the employer may refuse to grant the employee any type of leave (except leave in connection with pregnancy and childbirth and leave to care for a child up to the age of she is three years old), if such an employee is involved in the performance of work on critical infrastructure facilities.
Are additional and social vacations of local self-government officials preserved for the past and current years? And what about the vacation schedule?
According to the first part of Article 12 of Law No. 2136, during the period of martial law, the employer may deny the employee unused days of annual basic leave.
The provisions of Law No. 2136 do not affect the granting of additional (non-annual) and social leave.Therefore, such vacations for the past and current calendar years can be granted to local self-government officials in accordance with the established procedure.
During the period of martial law, additional and social holidays are accrued in accordance with the procedure established by law.
At the same time, we emphasize once again that in accordance with the second part of Article 12 of Law No. 2136, during the period of martial law, the employer may refuse to grant the employee any type of leave (except leave in connection with pregnancy and childbirth and leave to take care of a child until reaching Article 26 of Law No. 504. At the same time, such leave is granted until the termination / cancellation of martial law.
Also, the third part of Article 12 of Law No. 2136 applies to the entire territory of Ukraine, even if there are no active hostilities in a certain region. Such leave can be granted to local self-government officials regardless of the location of the local self-government body in which they work.
Is the time spent on leave without pay for the period of martial law included in the length of service that gives the right to annual basic leave?
In accordance with Article 9 of Law No. 504, the length of service entitling to annual basic leave (Article 6 of this Law) includes, in particular, the time when the employee actually did not work, but his place of work (position) was kept and he was not paid salary in accordance with the procedure specified in Articles 25 and 26 of this Law.
According to the third part of Article 12 of Law No. 2136, during the period of martial law, the employer may, at the request of the employee, grant him leave without salary without the time limit established by the first part of Article 26 of Law No. 504.
Since leave without pay for the period of martial law is granted in accordance with Article 26 of Law No. 504, it is included in the length of service that gives the right to annual basic leave.At the same time, we draw your attention to the fact that Article 12 of Law No. 2136 has been supplemented by a new part four, according to which, during the period of martial law, the employer, at the request of an employee who has left the territory of Ukraine or has acquired the status of an internally displaced person, shall obligatorily grant him leave without retention of wages for the duration specified in the application, but not more than 90 calendar days, without counting the time spent on vacation to the length of service, which gives the right to annual basic leave, provided for in clause 4 of the first part of article 9 of Law No. 504.
Therefore, the period of leave granted to an official of local self-government on the basis of the third part of Article 12 of Law No. 2136 is included in the length of service, which gives the right to annual basic leave, and the period of leave granted on the basis of the fourth part of this article is not included in such length of service.
