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Publication date: 17.05.2024
active and purposeful military lawyer with more than 4 years of experience
Regarding the establishment of restrictions on part-time work during martial law
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.
Employees exercise their right to work by concluding an employment contract for work at an enterprise, institution, organization or with an individual - Article 2 of the Code of Labor Laws (hereinafter - Labor Code).
An employment contract is an agreement between an employee and an employer (employer - a natural person), according to which the employee undertakes to perform the work specified in this agreement, and the employer (employer - a natural person) undertakes to pay the employee wages and provide working conditions necessary for performance of work provided for by labor legislation, collective agreement and agreement of the parties.
An employee has the right to realize his abilities for productive and creative work by concluding an employment contract at one or at the same time at several enterprises, institutions, organizations, unless otherwise provided by legislation, a collective agreement or an agreement of the parties. (Article 21 of the Labor Code).
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According to Article 19 of the Law of Ukraine of March 24, 1995 No. 108/95-VR "On Remuneration", Article 102-1 of the Labor Code, part-time work is considered to be the performance by an employee, in addition to the main one, of other paid work under the terms of the employment contract in the time free from the main job at the same or another enterprise, institution, organization or employer - a natural person.Regarding restrictions on part-time work, it should be noted separately that Article 102-1 of the Labor Code excludes the rule that the conditions of part-time work for employees of state enterprises and organizations are determined by the Cabinet of Ministers of Ukraine. In turn, the Cabinet of Ministers of Ukraine, by Resolution No. 1306 dated November 22, 2022, "On Recognition of Some Resolutions of the Cabinet of Ministers of Ukraine on Part-time Work of Employees of State Enterprises, Institutions and Organizations" as having lost their validity, recognized as having lost their validity:
• Decree of the Cabinet of Ministers of Ukraine dated April 3, 1993 No. 245 "On part-time work of employees of state enterprises, institutions and organizations";
• Resolution of the Cabinet of Ministers of Ukraine dated March 4, 2015 No. 81 "On part-time work of employees of state enterprises, institutions and organizations who move from the areas of the anti-terrorist operation";
• order of the Ministry of Labor of Ukraine, the Ministry of Justice of Ukraine, the Ministry of Finance of Ukraine dated June 28, 1993 No. 43 "About approval of the Regulation on the conditions of part-time work of employees of state enterprises, institutions and organizations".
The aforementioned regulatory acts, in particular, set limits on the duration of part-time work - no more than four hours a day and a full-time working day on a day off. The total duration of part-time work during a month should not exceed half of the monthly norm of working hours.
Thus, restrictions on the length of working hours at part-time jobs for employees of state enterprises, institutions, and organizations have been canceled.
Law of Ukraine dated October 14, 2014 No. 1700-VII "On Prevention of Corruption" (hereinafter - Law No. 1700) obliges to apply restrictions on part-time work to certain categories of employees and defines the conditions when such restrictions are applied. In order for such restrictions under martial law conditions to be adequate and the same for everyone, the NADS provided explanations in the Methodological Recommendations (hereinafter - Explanations). As of August 3, 2022, the Law* came into force, which amends Law No. 1700 and which, among other things, establishes the specifics of the application of restrictions on co-operation and co-operation with other types of activities during the period of martial law.
* Law of Ukraine dated July 8, 2022 No. 2381-ХХ "On Amendments to the Law of Ukraine "On Prevention of Corruption" regarding the peculiarities of the application of legislation in the field of prevention of corruption under martial law" (hereinafter - Law No. 2381).In particular, Law No. 2381 was supplemented by a new clause 28, Chapter XIII "Final Provisions" of Law No. 1700, which defines which of the officials during the period of martial law are not subject to restrictions on co-operation and co-operation with other types of activities (persons authorized to perform functions state or local self-government), established by clause 1 of part one of article 25 of Law No. 1700, and under what conditions.
Therefore, the peculiarities of the application of restrictions during the period of martial law apply only to certain categories of persons, subject to the simultaneous observance of the following conditions:
• the prohibition to work part-time and/or engage in entrepreneurship does not apply only to civil servants of categories "B" and "B" and officials of local self-government, whose positions are assigned to the fourth - seventh categories (clause 4.1 clause 4 of the Explanations );
• the specified persons are on leave without pay or on layoff (clause 4.3 clause 4 of the Explanations);
• it is allowed to receive income only from legal entities under private law or natural persons - entrepreneurs, in respect of which the relevant civil servants and officials of local self-government have not carried out during the last year authority to control, supervise or prepare or make appropriate decisions regarding the activities of these legal entities or individual entrepreneurs (item 4.4, item 4 of the Explanations);
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• employment in other paid or business activities should be stopped within 15 working days from the day of termination of idle time or the end of vacation (clause 4.5 clause 4 of the Explanations).
The legislation allows (Part 2, Article 21 of the Labor Code) to establish separate restrictions for part-time work in a collective agreement or labor agreement. The establishment of such restrictions may be justified in cases where part-time work cannot be combined with work at the main place of work, leads to excessive overload and fatigue of the employee, when performing heavy work and work with harmful and dangerous working conditions and taking into account other conditions
Example
The driver of vehicles, working at the main place of work for a total of 10 hours, decided to work as a driver at another company in the night shift. It is obvious that such an employee's desire to earn more money poses a threat not only to his own health, but can also create danger for others.
Therefore, when making a decision to conclude an employment contract on part-time work, the parties to the employment contract should discuss in detail and define all its conditions, objectively assess the real capabilities of the employee to perform such work without the risk of creating a threat to safety and health at the workplace, and as well as harming the health of the employee or the interests of production.
