As part of the implementation of the Memorandum of Cooperation, the Trade Union of Railway and Transport Builders of Ukraine, in order to raise the level of legal awareness of employees, has applied to the State Labour Service of Ukraine (SLSU) for clarifications on the conclusion of fixed-term employment contracts.
The Labour Department of the State Labour Service of Ukraine provided a response (letter No. 2245/2/2.1-24a dated 19.06.2024).
Here are the key points on concluding fixed-term employment contracts when hiring or transferring an employee to another job:
1. On the conclusion of fixed-term employment contracts
The employer has no right to force an employee to enter into a fixed-term employment contract. The employee has the right to refuse to enter into a fixed-term employment contract.
In accordance with para. 2 Art. 2 of the Law of Ukraine ‘On the Organisation of Labour Relations under Martial Law’, in order to promptly engage new employees in the performance of work, as well as to eliminate staff shortages and labour shortages, including as a result of the actual absence of employees who have been evacuated to another location, are on leave, idle, temporarily disabled or whose location is temporarily unknown, employers may conclude fixed-term employment contracts with new employees during the period of martial law or for the period of temporary replacement
According to Art. 23 of the Labour Code, a fixed-term employment contract is concluded in cases where the employment relationship cannot be established for an indefinite period, taking into account the nature of the work to be performed, or the conditions of its performance, or the interests of the employee, and in other cases provided for by law.
The employer is obliged to inform employees working under fixed-term employment contracts about vacancies that meet their qualifications and provide for the possibility of concluding an indefinite employment contract, as well as to ensure equal opportunities for such employees to conclude such a contract.
Under martial law, the employer has the right to conclude fixed-term employment contracts for the period of absence of employees who have been evacuated to another location, are on leave, are idle, temporarily disabled or whose whereabouts are temporarily unknown, as well as taking into account the nature of the work to be performed, the conditions of its performance, or the interests of the employee.
2. On transferring employees from indefinite to fixed-term employment contracts
Labour law does not provide for the possibility of changing an indefinite employment contract into a fixed-term contract.
Article 32 of the Labour Code provides that transfer to another job at the same enterprise, institution or organisation, as well as transfer to another enterprise, institution or organisation or to another location, even if together with the enterprise, institution or organisation, is allowed only with the employee’s consent, except in cases provided for in Article 33 of the Labour Code and in other cases provided for by law.
During the period of martial law, an employee’s notice of a change in essential working conditions and a change in remuneration conditions provided for in part 3 Art. 32 and Art. 103 of the Labour Code of Ukraine, shall be carried out no later than before the introduction of such conditions.
If there are changes in the organisation of production and labour that entail a reduction in the staff or number of employees, the employer may decide to dismiss employees on the basis of clause 3.1. 1 Art. 40 of the Labour Code of Ukraine.
In the event of production or other necessity, an employee, WITH HIS/her CONSENT, may be temporarily transferred to another job (in another profession, position) with subsequent return to his/her permanent job. An entry on temporary transfer to another job shall not be made in the employment record book.
