No return to serfdom…

Ukrainian authorities promised citizens to complete the three reform-oriented legal codes before long. The MPs plan to adopt the Tax, Customs, and soon-to-be-submitted Labor Codes by the end of this year. The Labor Code will cause no less consternation in society than the Tax Code did. Moreover, the changes might be even more shocking than in the latter’s case. For example, working hours, wage levels, conditions of hiring and firing employees, liability for delays and non-payment of wages, protection of workers’ rights are all being fundamentally changed. While unions are spreading fear, the Code’s authors and employers are trying to quiet the populace. An average Ukrainian is hardly able to discern the truth in the Code’s 444 articles, or to understand them correctly. Indeed, even experienced experts state that the Labor Code was written too “technically,” so that they themselves have to spend hours dealing with one norm or another, and sometimes even they are left wondering what an article means. However, experts say the chances are that from January 1 next year, Ukrainians will work according to new and confusing labour regulations. Thus, the chairman of the National Forum of Trade Unions of Ukraine Myroslav Yakibchuk is convinced that the ten-year-long process of adopting a new version of the Labor Code is most likely to be finished now.

“I think the adoption of the Labor Code is at hand,” he says. Yakibchuk went on to explain that with the elections being over, the effective majority is formed in the parliament, the opposition, which could block the vote, is weak, and unions are excluded from the fight altogether.

However, the consequences of this decision for the labour market and society are ambiguous. Unions warn people of waves of massive abuses of employees’ right by employers to come, resulting in protests of indignant employees and mass strikes; they are calling the new Labor Code unconstitutional. Employers say instead that the new Tax Code is a compromise to which they have agreed to “satisfy the demands of employees.”

The authors and proponents of the new Code, in turn, emphasize the need for changes in labour legislation and its adaptation to modern realities. The current Labor Code, they note, was adopted 40 years ago! So lawyers consider it outdated. According to one of the Labor Code’s authors, the chairman of the Federation of Trade Unions of Ukraine, deputy from the Party of Regions’ list Vasyl Khara, the new Labour Code is really focused on business development and takes into account the interests of the employer. But society, and hence the employee can only benefit from such norms, as they will stimulate investments and create jobs.

For its part, the National Forum of Trade Unions (NFTU) of Ukraine argue the new Labor Code is a step back to The Days of “wild capitalism” that would deprive the employee of his or her rights and legal protection, and erase the distinction between the employee and the slave of yore. “Unfortunately, the bill is a prime example of cynical narrowing of the content and scope of existing rights and freedoms of citizens of Ukraine in the sphere of industrial and labor relations,” emphasizes Yakibchuk.

He said the draft code enables all employers, not just government agencies, to regulate labor relations by adopting their own regulations without consultating employees, unions and government. This, according to Yakibchuk, will give employers the ability to evade collective bargaining. According to the NFTU’s representatives, during the first six months after the Code’s entry into force only, up to 70 percent, or 2,5 million will try to terminate the agreements already concluded or to evade the new ones. The NFTU has also criticized the division of unions into “representative” and “nonrepresentative” ones, calling it “an attempt to split the trade union movement.”

They do not agree with introducing veto power in commissions of labor disputes’ work, too. This, they argue, will allow any of the parties to block commissions’ work in case of disagreement.

And the most pressing issue is the duration of the working week according to the new Labor Code; unions argue that with the new labour regulations, the employer is legally free to force employees to work more than 48 hours per week and 12 hours a day.

The Head of the analytic bureau of the legal department of the Federation of Trade Unions Valentyna Pozinich does not agree with such conclusions at all and suggests trade union leaders “learn how to properly read the laws without inventing politically motivated horror stories.” She notes that in most cases, some employers already offer to institute the 24-hour-shift work regime for an employee who works on the basis of hourly pay. “But people should be able to recuperate before the next workday. With this goal in mind, the new Labor Code introduces restrictions on summary working time, which should not exceed 48 hours per week. In some cases, at the request of the employee, or taking into account the special nature of the job, as in agriculture — while they do planting or harvesting, a longer working week may be set,” explains Pozinich. Thus, she says, the monthly rate of working time should not exceed 40 hours per week, i.e., 160 hours per month. At the same time, the employer’s right to unilaterally determine the length of working hours of employees, which is so resented by trade unions’ leaders, can only be used in certain cases, in coordination with trade unions, said the expert.

Hence, the introduction of the 48-hour rule, according to Pozinich, goes contrary to the critics’ allegations, limiting the rights of employers towards people who are now employed in jobs that do not allow to rigidly fix the duration of the workday, like taxi and long-distance cargo drivers, or seasonal workers in agriculture.

“There is no problem. It is artificially created, because the idea is imposed on society that working hours will be increased,” summed up the FTU’s representative.

For her part, Pozinich is genuinely outraged that the unions are not raising the really important issues which were left unresolved in the draft Labor Code. For example, the minimum wage. “I personally wanted to ensure that this [minimum wage level] is calculated taking into account the ‘cost of living.’ Unfortunately, agreement on this has not been reached. Therefore, it is not included in the new Tax Code. However, for some reason unions are silent about it” Pozinich told The Day.

The issue of employer’s liability for delaying wages also remained unresolved in the new Labor Code. Instead, firing the employee or sending him or her on unpaid leave was made much easier.

However, preliminary findings of the International Labour Organization (ILO) contain no comment on the content of these articles, which are now discussed at rallies and in the media as significantly worsening the situation of workers in comparison with current legislation. Instead, as Pozinich told The Day, they (the ILO) accused the labour law of Ukraine of excessive liberalization of the labor market: a large number of public holidays, long paid vacations. The ILO doesn’t like, the expert says, the obligatory paid training leave, too. “According to the Constitution of Ukraine, we have no right to limit or abolish the rights of citizens provided earlier, so we were able to defend these positions and retain them in the new version of the Labour Code,” explains Pozinich.

And despite the fact that unions threaten mass protests, such as the small- and medium-business community held in relation to the Tax Code, such protests are yet to be seen. Chairman of the Federation of Small and Medium Enterprises’ Trade Unions of Ukraine Viacheslav Roy explains: “The negative consequences of adopting such a Labor Code are not that obvious, because they will not become clear immediately. And today, what new norms should frighten an employee? Deregulated working day duration? But he is already working as much as the employer orders him to. Wage levels are too low? Now he needs to receive wage as such, have at least some work. Diminished role of trade unions? Today, he believes he can make do without them at all. Therefore, although leaders of independent trade unions are constantly talking about the unacceptability of the draft Labor Code, we aren’t heard...”