See more
Publication date: 21.05.2024
active and purposeful military lawyer with more than 4 years of experience
Work of education seekers: everything you need to know
According to Article 62 of the Law of Ukraine dated July 1, 2014 No. 1556-VII "On Higher Education", persons studying in institutions of higher education have the right to: safe and harmless conditions of study, work, living and work activities during extracurricular hours.
That is, the legislation does not prohibit employers from willingly hiring students regardless of the form of their education. At the same time, the employee's right to work is realized precisely through the conclusion of an employment contract for work at an enterprise, institution, organization or with a natural person - Article 2 of the Labor Code of Ukraine (hereinafter - Labor Code).
That is, it is precisely on the basis of the conclusion of the employment contract that labor relations arise, as well as the corresponding obligations of the employer, for example, to provide paid annual leave, systematically pay wages for the labor process, etc.
According to the civil law contract (contract, provision of services), no employment relationship arises, the person is deprived of the right to paid vacation, accrual of compensation for unused vacation days, wage indexation, etc., although he has the right to the right to payment of temporary disability and maternity benefits and childbirth
You may be interested in reading articles on the following topics: collection of debt from wages recovery of wages through court recovery of wage arrears recovery of wages recovery of wages in court recovery of wages through court
Importantly! Employees - students have the same labor rights and obligations as other employees. However, if there are minors among the employees who receive education, then, in accordance with the legislation, special requirements for employment and performance of labor duties are provided (some of them will be discussed below).Conclusion of an employment contract.
The employment relationship between the employer and the student begins with the conclusion of the employment contract. If the employee — the student of education is a minor, then compliance with the written form when concluding an employment contract is mandatory (clause 5, part 1, article 24 of the Labor Code).
Please note that during the period of martial law, the parties shall agree on the form of concluding an employment contract.
Can a probationary period be established for an employee who is getting an education?
When concluding an employment contract, a test may be stipulated by the agreement of the parties in order to verify the employee's suitability for the work assigned to him. That is, if a student of education is employed, he may be given a probationary period on general grounds. But it is important that the test is not established when hiring persons who have not reached the age of eighteen.
During the period of martial law, probation can be established for any category of persons.
Work while studying: part-time or main job? This is one of the most pressing questions that an employee may have.
A student, even if he studies full-time, is accepted only at the main place of work, unless, of course, he does not work at the main place of work for another employer. During his studies, there are no labor relations between him and the educational institutions, and no employment contract is concluded. Education is the main type of activity for an education seeker, but not the main place of work. After all, in this case, the very fact of work is absent.
Such a position is expressed, in particular, in the third part of paragraph 14 of the resolution of the Supreme Court of Ukraine of December 24, 1999 No. 13 "On the practice of the application of legislation on remuneration by courts", which defines that work under an employment contract of persons who combine it with a full-time job training is not part-time and is paid on a general basis.
In addition, the Ministry of Social Policy adheres to this legal position in the letter dated July 25, 2014 No. 301/13/116-14 and dated May 25, 2015 No. 198/06/186-15, where it is stated that the labor legislation does not provide for restrictions on the combination students of higher education institutions, including those who study full-time, work and study. Therefore, the institution has the right to hire such employees, in particular, on a full-time basis. However, as a rule, part-time working hours are established for those seeking education so that they can attend classes at the educational institution.So, there is no reason to hire a student as a part-time worker, unless, of course, he works somewhere else under an employment contract and that particular place of work is his primary job.
Duration of working hours and work schedule
As a general rule, the normal duration of working hours of employees cannot exceed 40 hours per week (Part 1, Article 50 of the Labor Code).
But if the employee is an education seeker under the age of 18, then a reduced duration of working hours is established for such categories - 36 hours per week (for employees aged 16 to 18).
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 minors seeking education, employed at critical infrastructure facilities (in the defense sphere, the sphere of ensuring the livelihood of the population, etc.), the duration of working hours during the period of martial law may not exceed 40 hours per week.
Pay attention! A student studying on a full-time basis can perform work duties only during free time from studies, for example, on weekdays - after classes (in the evening or during "windows" in the class schedule), on weekends or during vacation
Can the employer request a certificate of free attendance at classes?
Legislation does not require students to provide certificates about the schedule of classes. According to the first part of Article 56 of the Labor Code, which stipulates that by agreement between the employee and the owner or a body authorized by him, it may be established both when hired and subsequently part-time or part-week.
That is why, in most cases, employees who are getting education are hired on a part-time basis. This mode can have different options:
• part-time work, i.e. reducing the duration of daily work;
• a part-time working week, i.e. a reduction in the number of working days per week with the normal duration of the working day;
• a combination of part-time work and part-time working week.
Thus, the mode of work of education seekers will depend on the study schedule, and the salary will depend on the duration of the performance of work duties.
Importantly! Payment of labor in cases of establishing a part-time working day or a part-time working week is carried out in proportion to the time worked or depending on the output.
How is seniority accrued during study and work?
Studying at a university is not considered work, as already mentioned, therefore it is not included in the insurance experience. However, work under an employment contract while studying is included in the insurance record — Article 12 of the Law of Ukraine dated July 9, 2003 No. 1058-IV "On Mandatory State Pension Insurance".
Is it possible to receive a salary at the company and a scholarship for studies at the same time?
The fact of employment does not affect the student's right to receive a scholarship (if any).Thus, in accordance with paragraph 4 of the Resolution of the Cabinet of Ministers of Ukraine dated July 12, 2004 No. 882 "Issues of Scholarship Provision" (hereinafter - Resolution No. 882), scholarships are awarded to education seekers based on the results of studies in vocational and technical and higher educational institutions (scientific institutions). Clinical residents, graduate students, doctoral students have the right to work part-time. At the same time, the academic scholarship is paid in full (clause 19 of Resolution No. 882).
Therefore, according to the current legislation, students have the right to work and receive a salary on a general basis under an employment contract during their free time from studying.
The scholarship received by the student at the place of study does not affect the salary.
Dismissal of an employee — a student
The employment contract with the student of education is terminated or terminated on the same grounds as with all other employees of the enterprise. That is, dismissal is possible:
• by agreement of the parties (Clause 1 of Article 36 of the Code of Criminal Procedure);
• after the expiration of the fixed-term employment contract (clause 2 of article 36 of the Labor Code);
• at the initiative of the employee (Article 38, Article 39 of the Labor Code);
• at the employer's initiative (Article 40, Article 41 of the Labor Code);
• on other grounds provided for by the Labor Code.
At the same time, the dismissal of a minor employee at the initiative of the employer has its own characteristics, which are established by Article 198 of the Labor Code, according to which the dismissal of employees under the age of 18 at the initiative of the employer is allowed, in addition to observing the general procedure for dismissal, only with the agreement of the district (city) service for children.Importantly! The employer is obliged to employ minors in the event of their dismissal:
• changes in the organization of production and work, including liquidation, reorganization, bankruptcy or repurposing of an enterprise, institution, organization, reduction in the number or staff of employees;
• revealed inadequacy of the employee to the position held or the work performed due to insufficient qualifications or health conditions that prevent the continuation of this work, as well as in the case of refusal to grant access to state secrets or cancellation of access to state secrets, if the performance of the duties assigned to him requires access to state secrets;
• reinstatement of an employee who previously performed this work (in accordance with Article 198, Article 40 of the Labor Code).
Failure to comply with the requirements of Article 198 of the Labor Code when dismissing a minor employee can be qualified as dismissal without legal grounds, which entails his reinstatement.
Importantly! In the case of dismissal of an education seeker on the grounds provided for in clause 6 of Article 36 and clauses 1, 2 and 6 of Article 40 of the Labor Code, he must be paid severance pay on the basis and in the amounts provided for in Article 44 of the Labor Code. In addition, regardless of the reasons for dismissal of the student, compensation is paid for unused days of annual basic and additional leave.
