Valeria Gudiy writes: Under new plan, the work week could increase to 48 hours.
After the brouhaha surrounding the government’s new tax code last year, the latest new piece of legislation to raise people’s hackles is the draft labor code.
The government is gallantly fighting for good standing in the international community, telling anyone who’ll listen that everything’s great here, that the rule of law and democracy are still going strong, that they are observing all principles of international law, the economy is growing and legislation is being improved in line with European standards.
But the draft of the labor code does not correspond with international standards, leaving legal loopholes for employers and others to exploit.
Most outrageously, it includes discrimination against workers by allowing employers to increase the working week to 48 hours (and even 60 hours in agreement with the worker) in spite of the fact that Ukraine has ratified a number of international documents that set the principle of decreasing the working week to 40 hours.
In Ukraine, there are several modes of work, including record of cumulative hours worked, used when there is no possibility to keep a daily or weekly duration of working time.
The current labor legislation strictly determines that if this mode of work is introduced (only after coordination with a trade union), then the duration of work shall not be more than 40 hours per week. For example, on Monday and Tuesday the employee works nine hours, on Wednesday and Thursday 10 hours, then on Friday the working day of the employee cannot be more than 2 hours.
The problem with the new bill is that it doesn’t say how long the normal duration of work should be for employees working according to this scheme.
Under plan, work week could increase to 48 hours
According to the provisions of the bill there is no need to coordinate with a trade union when introducing the record of cumulative hours worked if the duration of work is not more than 48 hours per week and 12 hours per day.
If the employer wants to increase the duration of work, the maximum may be set in its joint agreement with trade union, or, if there is no joint agreement, by order of the employer.
Not all employers have joint agreements with trade unions, thus this is the peculiar loophole that employers may exploit. This means that any firm can set its maximum duration of work per week.
By this logic, not only taxi drivers, long-distance truck drivers and nannies can have a 12-hour working day, but everyone else as well.
The bill’s authors wanted to make things better by limiting the duration of a worker’s shift. But it’s turned out as always, by allowing an increase in the working week to 48 or even 60 hours.
Many honest and responsible workers already work more than 10 hours per day without any or proper compensation for overtime. Perhaps the initiators of the bill wanted to legalize such relations, as the Code of Labor Laws of Ukraine is being violated anyway and it’s time to change it.
The key question is: How can the weaker side in labor relations – the worker – be protected without limiting the employer’s business activity and interests and, most importantly, allowing everyone to live amicably according to the law?
Many people assert that the remnants of the Soviet system does not protect the worker, instead leaving him alone against the all-powerful employer, thus it needs to be dismantled. Many are casting doubt on whether the current bill being considered is the right one to replace the current code.
Legislators need to carefully consider these factors and eliminate any misunderstandings that could arise in the new labor code. They should demonstrate and embed the practice of equality before the law, without exception, even for the country’s leaders.
Otherwise, everything will stay the same under the useless slogan: “The authorities are with the people.”
On the surface, the idea of systematizing labor relationships is a good one. The draft proposes, for example, to legalize the procedure of announcing a vacancy, thus increasing competition, and testing the jobseeker matches requirements for the vacancy.
From a legal point of view, of course, the process of “resetting” relations between the authorities and the middle class, between employer and employee, needs to be continued.
But that’s just part of the story. Included in this package should be a fair justice system, fair taxes, the resolution of questions in court (not in the office of judges or prosecutors), and compliance with the law for all, and not selectively.
In our case, a sharp change in labor laws could bring about an even greater storm of negative emotions. This could be connected with raising the legal culture of Ukraine’s citizens and finally changing Ukrainian mentality and recognizing the need to match up legislative acts with the equality of all citizens before the law.
And we shouldn’t forget about the examples of many years of history, which have shown that any new ideas or changes are received gratefully by people only if they are brought in gradually.
Valeriia Gudiy is a lawyer with Ilyashev & Partners, a Kyiv-based law firm. She can be reached at [email protected]
