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Publication date: 21.05.2024
active and purposeful military lawyer with more than 4 years of experience
Overtime during martial law
The use of overtime always raises many questions. They were relevant during the period of quarantine and do not lose it even during martial law.
During the period of martial law, the regulation of labor relations has its own peculiarities, provided not only by the Code of Labor Laws of Ukraine (hereinafter referred to as the Labor Code of Ukraine), but also by the Law of Ukraine of March 15, 2022 No. 2136-IX "On Peculiarities of Labor Relations During Martial Law" (hereinafter — Law No. 2136).
At the same time, the period of martial law does not give the employer the right to use the work of employees without limiting the duration of working hours, which is established by the norms of the Labor Code and Law No. 2136, as well as to involve employees in overtime work in cases not provided for by law and in violation of the relevant procedure.
Normative regulation of the use of overtime work.
Overtime is considered work beyond the established duration of the working day (Articles 52, 53 and 61 of the Labor Code).
Working day, in accordance with Article 62 of the Labor Code, means the duration of daily work established by the rules of the internal work schedule or the shift schedule.
The concept of overtime work applies to employees with normal and reduced working hours.
Article 6 of Law No. 2136 stipulates that the normal duration of working hours during the period of martial law may be increased to 60 hours per week for employees employed at critical infrastructure facilities (in the defense sector, the sphere of ensuring the livelihood of the population, etc.).For employees employed at critical infrastructure facilities (in the defense sector, in the sphere of ensuring the livelihood of the population, etc.), who are subject to reduced working hours in accordance with the legislation, the duration of working hours during the period of martial law may not exceed 40 hours per week.
Performing work beyond the established duration of working hours in accordance with parts 1 and 2 of Law No. 2136 will also be overtime work. At the same time, a 5-day or 6-day work week is set by the employer, the start and end time of daily work (shifts) is determined by the employer. The duration of weekly uninterrupted rest can be reduced to 24 hours.
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With regard to employees of enterprises, institutions, organizations (hereinafter referred to as the enterprise) that do not belong to critical infrastructure objects, employers are not empowered to increase working hours, and must comply with the length of working hours provided for in Articles 50, 51 of the Labor Code.
The above norm is often misunderstood due to a misunderstanding of the application of the norm of Part 6 of Article 6 of Law No. 2136. The use of overtime work is regulated by the relevant articles of the Labor Code (see the table above), and according to Part 6 of Article 6 of Law No. 2136 during the period of martial law in terms of regulation of overtime work, the provisions of the first part of Article 65 of the Labor Code do not apply. Thus, during the period of martial law, the norm, which determines that overtime work should not exceed 4 hours for an employee during 2 consecutive days and 120 hours per year, is suspended.However, non-application of the norm of the first part of Article 65 of the Labor Code should be understood not as the involvement of employees in work without observing the division of working hours during the week, its duration and rest breaks, but the possibility of involvement in overtime work in the manner determined by legislation, with the possibility of working overtime for more than 4 hours for 2 consecutive days and 120 hours per year.
Therefore, the remaining articles on the regulation of overtime work remain in force during the period of martial law and regulate the procedure for the introduction of overtime work.
We offer to consider the actions of the employer regarding the involvement of employees in overtime work, in particular for carrying out loading and unloading work in order to prevent or eliminate the idleness of rolling stock or the accumulation of goods at the points of departure and destination...
