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Publication date: 27.05.2024
Lawyer, graduated from the National University "Odesa Law Academy" with honors. Since 2017, I have been specializing in legal and educational and general legal issues. I am the author of legal articles, scientific publications and articles in the educational environment. Mentor of the "Veritas" legal clinic. The owner of the legal blog "Educational_law_ua" on Instagram.
Labor relations in Ukraine are traditionally regulated by an employment contract concluded between an employee and an employer. However, there are situations where labor relations arise without the formal conclusion of an employment contract. This issue is of significant importance as it directly impacts the rights and obligations of employees and employers.
Concept and Essence of Labor Relations
Labor relations are defined as a system of legal relationships that arise between an employee and an employer regarding the performance of work by the employee, for which they receive wages, and which is carried out under the subordination of the employee to the internal work schedule of the enterprise, institution, or organization. The main features of labor relations include:
- the presence of an employee and an employer;
- the performance of specific work by the employee;
- payment of wages to the employee;
- performance of work under the subordination to the internal work schedule.
Grounds for the Emergence of Labor Relations
According to Article 21 of the Labor Code of Ukraine (LCU), an employment contract is the main basis for the emergence of labor relations. However, in some cases, labor relations may arise without the formal conclusion of an employment contract. Such cases are provided for by current legislation and judicial practice.
Actual Admission to Work
One of the most common grounds for the emergence of labor relations without the conclusion of an employment contract is the actual admission of the employee to work. This means that the employee started performing work duties with the knowledge or at the request of the employer, and wages are paid for this work.
The third part of Article 24 of the LCU provides that in the case of the actual admission of the employee to work without formalizing the employment contract, labor relations are considered to have arisen from the first day of work. In this case, the employer is obliged to formalize the employment contract in writing.
Performance of Work under Civil Law Contracts
Sometimes employers use civil law contracts (contracts for services, service contracts) to regulate relations with employees. However, if such relations have the characteristics of labor relations, they may be recognized as such. The main criteria for labor relations, which are considered by the judicial practice, include:
- systematic performance of work duties by the employee;
- performance of work by the employee under subordination to the internal work schedule;
- provision of the employee with a workplace, tools, materials, etc.;
- regular payment of wages to the employee.
The courts of Ukraine, when considering disputes regarding the nature of relations between the parties, rely on the factual circumstances of the case and may recognize such relations as labor relations even in the absence of a written employment contract.
Legal Consequences of the Emergence of Labor Relations Without an Employment Contract
The emergence of labor relations without concluding an employment contract entails a number of legal consequences for both parties - the employee and the employer.
Employee Rights
An employee who is actually admitted to work without formalizing an employment contract is entitled to:
- receive wages for the work performed;
- social guarantees provided by labor legislation (annual paid leave, sick leave, unemployment benefits, etc.);
- protect their labor rights in court.
Employer Obligations
An employer who admits an employee to work without concluding an employment contract is obliged to:
- formalize the employment contract in writing;
- ensure timely payment of wages;
- fulfill other obligations provided by labor legislation (granting leave, paying sick leave, etc.).
Employer Liability
For violations of labor legislation, including admitting an employee to work without formalizing an employment contract, the employer is held liable. This may include:
- administrative liability (fines provided by the Code of Ukraine on Administrative Offenses);
- criminal liability for gross violations of labor legislation (including the use of forced labor or gross violations of employee rights);
- civil liability (obligation to compensate for damages caused to the employee).
Conclusion
The analysis of documents determines that the emergence of labor relations without concluding an employment contract is a fairly common practice in Ukraine, which has both positive and negative consequences for both parties. On the one hand, it allows employees to get a job and a salary even without formal registration of labor relations. On the other hand, it creates risks for employees, as their rights may be violated, and for employers, who may be held liable for violations of labor laws. It is worth noting that if you need written advice from a lawyer or the help of a lawyer online or a certain legal opinion on labor issues written consultation , contact qualified specialists.
