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Publication date: 22.05.2024
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 referred to as the 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.
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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).
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 recognizing as invalid certain resolutions of the Cabinet of Ministers of Ukraine on part-time work of employees of state enterprises, institutions and organizations" recognized as invalid:
• 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 "On 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 duration of working hours at part-time work 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 to be adequate and the same for everyone, the NADS provided clarifications in the Methodological On establishing 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 to which he freely agrees.
Employees exercise the right to work by concluding an employment contract to work at an enterprise, institution, organization or with an individual - Article 2 of the Labor Code (hereinafter referred to as the Labor Code).
An employment contract is an agreement between an employee and an employer (the employer is an individual), according to which the employee undertakes to perform the work defined by this agreement, and the employer (the employer is an individual) undertakes to pay the employee wages and provide working conditions necessary to perform the work provided for 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 simultaneously at several enterprises, institutions, organizations, unless otherwise provided by law, a collective agreement or agreement of the parties. (Article 21 of the Labor Code).
According to Article 19 of the Law of Ukraine dated 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 an employment contract in his free time from the main job at the same or another enterprise, institution, organization or employer - an individual.Regarding restrictions on part-time work, it should be especially noted that from Article 102-1 of the Labor Code, the rule that the conditions for part-time work for employees of state enterprises and organizations is determined by the Cabinet of Ministers of Ukraine is excluded. In turn, the Cabinet of Ministers of Ukraine, by resolution of November 22, 2022 No. 1306 “On the recognition as invalid of certain resolutions of the Cabinet of Ministers of Ukraine on issues of part-time work for employees of state enterprises, institutions and organizations” declared invalid:
• Resolution of the Cabinet of Ministers of Ukraine dated April 3, 1993 No. 245 “On part-time work for 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 for employees of state enterprises, institutions and organizations that 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 “On approval of the Regulations on the conditions of part-time work for employees of state enterprises, institutions and organizations.”
The above regulations, in particular, established restrictions on the duration of part-time work - no more than four hours a day and a full working day on a day off. The duration of part-time work during a month should not exceed half of the monthly standard working time.
Thus, restrictions on the length of working hours at part-time jobs for employees of state enterprises, institutions, and organizations have been abolished. Law of Ukraine dated October 14, 2014 No. 1700-VII “On the Prevention of Corruption” (hereinafter referred to as Law No. 1700) obliges the application of work restrictions part-time to certain categories of workers and determines the conditions when such restrictions apply. To ensure that such restrictions under martial law are adequate and the same for everyone, NADS provided clarifications in the Methodological
