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Publication date: 17.05.2024
active and purposeful military lawyer with more than 4 years of experience
About the change of essential working conditions
A change in essential working conditions is:
• change of payment systems and rates;
• change of benefits and compensations stipulated by the collective agreement, local acts or current legislation;
• change of work mode
• establishing or canceling part-time working hours;
• combination of professions;
• change of ranks and job titles;
• change in the range of job duties;
• changing the term of the employment contract.
This list is not exhaustive. Other working conditions may also be considered significant.
When can it be changed?
In accordance with the third part of Article 32 and in accordance with Article 103 of the Labor Code of Ukraine (hereinafter referred to as the Labor Code of Ukraine), the employee must be notified no later than two months in advance of a change in essential working conditions.
According to Article 103 of the Labor Code, the employer must notify the employee of new or worsening current wage conditions no later than two months before their introduction or change.
During the period of martial law, the notification of the employee about the change in the essential working conditions and the change in the payment conditions provided for in the third part of Article 32 and Article 103 of the Labor Code shall be made no later than before the introduction of such conditions - Article 3 of the Law of Ukraine of March 15, 2022 No. 2136-IX "On the organization of labor relations during martial law".
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The procedure for changing essential working conditions
1. Order on changes in the organization of production and labor at the enterprise
Only in connection with changes in the organization of production and work, a change in essential working conditions is allowed while continuing to work in the same specialty, qualification or position (Part 3, Article 32 of the Labor Code).Changes in the organization of production and labor are the rationalization of workplaces, the introduction of new forms of labor organization, among them the transition to a brigade form of labor organization, and, conversely, the introduction of advanced methods, technologies, etc. » dated November 6, 1992 No. 9).
2. Order on changing essential working conditions
The order should specify for whom and what exactly changes, from when. Example:
To change the essential working conditions of the accountant Ivanova O.O., by establishing new terms of payment in the amount of UAH 15,000.00 monthly salary from April 10, 2023.
3. Written warning about new working conditions
A warning is a written offer to an employee to continue working after the employer, in compliance with the term established by law, changes the essential working conditions. The employee can accept this offer and continue working if the essential working conditions have changed, or he can refuse to continue working due to changes in the essential working conditions.
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The warning should explain to the employee that he can agree to work under new conditions or refuse, which he must notify the employer in writing.
4. The employee's written response about the agreement or refusal to continue working under the new conditions.
If an employee goes to work and works according to the new working conditions, this is an agreement, and such an employee cannot be dismissed under Clause 6 of Article 36 of the Labor Code.Dismissal under Clause 6 of Article 36 of the Labor Code in the event of an employee's refusal to continue working
If the former essential working conditions cannot be preserved, and the employee does not agree to continue working under the new conditions, then the employment contract is terminated according to paragraph 6 of Article 36 of the Labor Code — parts 3 and 4 of Article 32 of the Labor Code.
According to Clause 6 of Article 36 of the Labor Code, the employee's refusal to transfer to another location together with the enterprise, institution, or organization, as well as refusal to continue working due to a change in essential working conditions, is the basis for terminating an employment contract.
If the above-mentioned procedure for changing essential working conditions is followed correctly, but the employee refuses to work under them, the employer can fire the employee. For this, a dismissal order is issued. The order must specify the reason for dismissal and which working conditions the employee disagreed with.
According to Article 44 of the Labor Code, upon dismissal based on Clause 6 of Article 36 of the Labor Code, an employee is paid severance pay in the amount of at least the average monthly salary
Dismissal based on Clause 6 of Article 36 of the Labor Code can be challenged in court.
