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Publication date: 15.05.2024
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Will the mobilized workers be reimbursed the payment of the average salary: the Court will check the constitutionality of the legislative provisions on labor guarantees
On March 20, during the open part of the plenary session, the second senate began considering the case based on the constitutional complaint of Yury Prokopenko in the form of written proceedings.
During the plenary session, the judge-rapporteur in the case, Volodymyr Moysyk, outlined the content of the constitutional complaint and the applicant's reasoning. In particular, the judge noted that the citizen appealed to the Constitutional Court of Ukraine with a request to check the compliance with the Constitution of Ukraine of subparagraph 17 of paragraph 1 of Section I of the Law of Ukraine dated July 1, 2022 No. 2352-IX "On Amendments to Certain Legislative Acts of Ukraine on Optimizing Labor Relations" (hereinafter - Law No. 2352), which amended the third part of Article 119 of the Code of Labor Laws of Ukraine (hereinafter - the Labor Code of Ukraine), namely: the words "place of work, position and average salary are preserved" were replaced by the words "place of work and position are preserved" .In accordance with the third part of Article 119 of the Labor Code, for employees called up for fixed-term military service, military service by conscription of officers, military service by conscription during mobilization, for a special period, military service by conscription of reservists in a special period or accepted for military service under a contract, including by concluding a new contract for military service, during the validity of the special period for the period until its end or until the day of actual release, the place of work and position at the enterprise, institution, organization, farm, agricultural to a production cooperative, regardless of subordination and form of ownership, and to natural persons - entrepreneurs, for whom they worked during the draft. Such employees are paid financial support at the expense of the State Budget of Ukraine in accordance with the Law of Ukraine of December 20, 1991 No. 2011-XII "On social and legal protection of military personnel and members of their families."
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According to the author of the petition, the contested provision of Law No. 2352 is unconstitutional, as it narrows the content and scope of the existing rights to accrual and payment of average earnings to employees called up for military service during the special period, due to the entry into force of subsection 17, paragraph 1, section I of Law No. 2352 .
As can be seen from the content of the constitutional complaint and the materials attached to it, Yuriy Prokopenko is in employment with the Ministry of Economy of Ukraine from January 17, 2020 until now.According to the order of the Ministry of Economy of Ukraine, he was released from work from March 1, 2022 to perform duties related to conscription for military service in the Armed Forces of Ukraine, while retaining his place of work, position, and average salary. Due to the changes made to the third part of Article 119 of the Labor Code by subsection 17 of paragraph 1 of Section I of Law No. 2352, by order of the Ministry of Economy of Ukraine dated July 19, 2022, he was stopped from being charged and paid the average salary.
Therefore, Yuriy Prokopenko filed a lawsuit for recovery for non-payment of average earnings and cancellation of the order of the Ministry of Economy of Ukraine. The courts rejected his claim.
The judge-reporter informed that the Constitutional Court of Ukraine considers a number of cases related to the same issue, and during their consideration the judges receive answers to requests from scientific institutions, institutions of higher education, and state authorities.
After examining the case materials in the open part of the plenary session, the Second Senate moved to the closed part of the plenary session.
Yurii Prokopenko, the subject of the right to a constitutional complaint, and Maksym Dyrdin, a permanent representative of the Verkhovna Rada of Ukraine at the Constitutional Court of Ukraine, were present at the open part of the plenary session.
