Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.41 N° 79
Octubre
Diciembre
2023
Recibido 18/07/23 Aceptado el 12/09/23
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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Vol. 41, Nº 79 (2023), 485-497
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Organizational and legal aspects of the
protection of labor rights in the conditions
of martial law in Ukraine
DOI: https://doi.org/10.46398/cuestpol.4179.33
Pylyp Pylypenko *
Olena Rym **
Svitlana Synchuk ***
Volodymyr Burak ****
Oksana Hirnyk *****
Abstract
In this scientic research, with the help of general and special
methods, the main trends in the development of labor law in the
conditions of martial law introduced in Ukraine are determined.
It also discusses the establishment of individual personal
restrictions in the organization of labor relations, making the
legal regulation of labor relations more exible and the mobility of the
worker in the exercise of the right to work, strengthening the protection of
labor rights of workers, mainly of mobilized persons and guarantees of their
realization. The authors’ attention is focused on the fact that the legislative
approach to the regulation of labor relations should take into account not
only the interests of the state, but also the interests of individual citizens.
The obtained results allow concluding that even in these dicult conditions
the labor law prevails in the list of the basic rights of the subjects of labor
relations, in accordance with international legal standards and guarantees of
their implementation, along with the forms and methods of comprehensive
protection of labor.
Keywords: labor relations; forms of labor; labor contract; employment;
martial law.
* Head of the Department of Social Law of Ivan Franko National University of Lviv, Lviv, Ukraine.
ORСID ID: https://orcid.org/0000-0002-3382-3033. Email: pylyp.pylypenko@lnu.edu.ua
** Professor of the Department of Social Law of Ivan Franko National University of Lviv, Lviv, Ukraine.
ORСID ID: https://orcid.org/0000-0002-3364-2830. Email: olena.rym@lnu.edu.ua
*** Professor of the Department of Social Law of Ivan Franko National University of Lviv, Lviv, Ukraine.
ORСID ID: https://orcid.org/0000-0003-2711-5919. Email: svitlana.synchuk@lnu.edu.ua
**** Professor of the Department of Social Law of Ivan Franko National University of Lviv, Lviv, Ukraine.
ORСID ID: https://orcid.org/0000-0002-3511-0555. Email: volodymyr.burak@lnu.edu.ua
***** Asistent at the Department of Social Law of Ivan Franko National University of Lviv, Lviv, Ukraine.
ORСID ID: https://orcid.org/0000-0001-9062-325X. Email: Hirnyk.oksana@gmail.com
486
Pylyp Pylypenko, Olena Rym, Svitlana Synchuk, Volodymyr Burak y Oksana Hirnyk
Organizational and legal aspects of the protection of labor rights in the conditions of martial law
in Ukraine
Aspectos organizativos y legales de la protección de los
derechos laborales en las condiciones de la ley marcial en
Ucrania
Resumen
En esta investigacion cientíca, con la ayuda de métodos generales
y especiales, se determinan las principales tendencias en el desarrollo
del derecho laboral en las condiciones de la ley marcial introducida en
Ucrania. Ademas se discute el establecimiento de restricciones personales
individuales en la organización de las relaciones laborales, exibilizando la
regulación jurídica de las relaciones laborales y la movilidad del trabajador
en el ejercicio del derecho al trabajo, reforzando la protección de los
derechos laborales de los trabajadores, principalmente de las personas
movilizadas y las garantías de su realización. La atención de los autores
se centra en el hecho de que el enfoque legislativo de la regulación de las
relaciones laborales debe tener en cuenta no solo los intereses del Estado,
sino también, los intereses de los ciudadanos individuales. Los resultados
obtenidos permiten concluir que, incluso en estas condiciones diciles el
derecho laboral impera en la lista de los derechos básicos de los sujetos
de las relaciones laborales, de conformidad con las normas jurídicas
internacionales y de las garantías de su aplicación, junto a las formas y
métodos de protección integral del trabajo.
Palabras clave: relaciones laborales; formas de trabajo; contrato de
trabajo; empleo; ley marcial. protección de los derechos
laborales.
Introduction
The Constitution of Ukraine denes the key role of the principle of
equality of human and citizen rights and freedoms in any legal relationship
between the state and its citizens (CONSTITUTION OF UKRAINE, LAW
OF UKRAINE, 1996). In addition, the current legislation emphasizes the
undeniable importance of observing this aspect in the organization of
the functioning of every sphere of life, which also applies to the sphere of
labor relations. It is the Code of Labor Laws of Ukraine that enshrines the
unity of labor legislation regardless of race, color, political, religious and
other beliefs, gender, ethnic and social origin, property status, place of
residence, language or other characteristics, etc. (CODE OF LABOR LAWS
OF UKRAINE, 1971 ), labor relations between employer and employee
are regulated, guarantees are provided for the conclusion, change and
termination of an employment contract (Article 22), the grounds for
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CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 485-497
termination of an employment contract are dened (Article 36) (CODE OF
LABOR LAWS OF UKRAINE, 1971).
By entering into an employment contract, employees exercise their
constitutional right to work, the right to proper, safe and healthy working
conditions, to a wage not lower than that determined by law, the right to
timely remuneration (Article 43), the right to participate in trade unions
with in order to protect one’s labor and socio-economic rights and interests
(Article 36), the right to strike to protect one’s economic and social interests
(Article 44), the right to rest (Article 45), the right to social protection
(Article 46) (CONSTITUTION OF UKRAINE, 1996).
The introduction of martial law in Ukraine on the basis of the Law «On
the Legal Regime of Martial Law» (ON THE LEGAL REGIME OF MARTIAL
LAW, LAW OF UKRAINE, 2022) led to a new stage in the development of
legal relations in the labor sphere. After all, it was this area in which the
interests of citizens are intertwined that required an immediate response
from the legislator in order to ensure its stable functioning. Conicts
between the interests of employers and employees in the conditions of a
special legal regime required state intervention, the adoption of new laws,
the introduction of appropriate changes and additions to the current
legislative acts.
It must be stated that the introduction of changes to the labor legislation
somewhat complicated legal relations in the specied area regarding:
regulation of remote labor activity, legal regulation of the right to vacation,
actions of the parties to the employment contract in case of loss of contact
with one of them, responsibility for non-fulllment of the terms of the
contract, implementation fulllment of labor obligations in the status of a
refugee, etc.
1. Methodology of the study
The methodological basis of the research is represented by general
scientic methods of understanding social phenomena and special methods
of understanding state-legal phenomena and processes. Thus, among
general scientic methods, the following were used during the research:
dialectical (the process of establishing working conditions is studied in an
inextricable connection with the social policy and economy of the state),
analytical, and the method of specicity (applied during the analysis
of current legislation and the study of court decisions); systemic (the
analysis made it possible to determine the main organizational and legal
aspects of the protection of labor rights in the conditions of martial law in
Ukraine) and formal-logical (it made it possible to generalize problems and
formulate logical conclusions). Among the special legal methods used: the
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Pylyp Pylypenko, Olena Rym, Svitlana Synchuk, Volodymyr Burak y Oksana Hirnyk
Organizational and legal aspects of the protection of labor rights in the conditions of martial law
in Ukraine
comparative legal method, the method of interpreting legal norms, method
of legal modeling and others.
2. Analysis of recent research
The issues of the organization of labor relations were the subject of
many scientic works, and mostly related to the protection of the rights and
legitimate interests of employees and employers in peacetime conditions.
At the same time, the specied question became especially relevant in
the realities of wartime in Ukraine due to legislative changes in the legal
regulation of labor relations.
In this publication, we will make an attempt at a scientic analysis of
the organizational and legal aspects of the protection of labor rights in
the conditions of martial law in Ukraine, and we will nd out the trends
in the development of labor relations in the specied area. Achieving
the outlined goal requires a generalization of current changes in labor
legislation, determination of the basics of legal support for the activities of
persons who implement a remote form of work, analysis of the peculiarities
of the regulation of legal relations between employers and employees, in
particular, mobilized persons.
3. Results and discussion
The development of an eective sectoral mechanism for ensuring the
labor rights and interests of employers and employees is the main task of
labor law. First of all, it is about the proper legal denition of the system
of labor rights of the employer and the employee in accordance with
international standards, about guarantees of their implementation, forms,
methods and means of protection and protection.
During martial law, labor legislation was adapted to new realities, as
a result of which two important laws were adopted: «On the organization
of labor relations under martial law» dated 15.03.2022 No. 2136-IX (ON
THE ORGANIZATION OF LABOR RELATIONS UNDER MARTIAL LAW,
LAW OF UKRAINE, 2022) and «On Amendments to Certain Legislative
Acts of Ukraine on Optimizing Labor Relations» dated 01.07.2022 No.
2352-IX (ON AMENDMENTS TO CERTAIN LEGISLATIVE ACTS OF
UKRAINE ON OPTIMIZING LABOR RELATIONS, LAW OF UKRAINE,
2022). The specied laws dene the procedure for public service, service in
local self-government bodies, specics of labor relations of employees of all
enterprises, institutions, organizations in Ukraine regardless of the form of
ownership, type of activity and branch aliation, representative oces of
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CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 485-497
foreign economic entities in Ukraine, as well as persons, who work under
an employment contract concluded with natural persons (hereinafter –
employees) during the period of martial law introduced in accordance with
the Law of Ukraine «On the Legal Regime of Martial Law».
Law of Ukraine No. 2136-IX «On the Organization of Labor Relations
in the Conditions of Martial Law» (ON THE ORGANIZATION OF LABOR
RELATIONS IN THE CONDITIONS OF MARTIAL LAW, LAW OF
UKRAINE, 2022) denes that the norms of the labor legislation in the
part of relations regulated by the adopted Law do not apply , and certain
constitutional rights of citizens may be restricted during the entire period
of martial law. The law denes the main aspects of the legal regulation
of the processes of concluding and terminating an employment contract,
establishing and accounting for the time of work and rest of employees,
wages, vacations and suspension of the employment contract in the
conditions of martial law.
In the conditions of war, it is dicult to deny the importance of non-
standard, remote or home-based forms of work. The legal basis of labor
relations is also a typical labor contract, but the key distinguishing feature
is that these types of employment are built on the principle of exibility of
the working time regime, which allows the establishment of a dierent work
regime than that dened by the rules of the internal labor procedure, but on
the condition of compliance with the law of Ukraine «On the Organization
of Labor Relations in the Conditions of Martial Law» of daily, weekly or
other working hours determined for a certain accounting period (ON
THE ORGANIZATION OF LABOR RELATIONS IN THE CONDITIONS
OF MARTIAL LAW, LAW OF UKRAINE, 2022). The principle of self-
regulation of working hours allows the employee to adjust the time of the
start and end of work and the length of the working day, which is especially
important in war conditions and determines the level of safety and security
of the individual.
According to Art. 119 of the Labor Code of Ukraine, during the
performance of state or public duties, if, according to the current legislation
of Ukraine, these duties are performed during working hours, employees
are guaranteed the preservation of the place of work and all conditions
stipulated by the labor contract already concluded between the employer
and the employee (CODE OF LABOR LAWS OF UKRAINE, 1971).
This means that for employees called up for xed-term military service,
military service by conscription of ocers, military service by conscription
during mobilization, for a special period, military service by conscription of
reservists in a special period, or accepted for military service by contract,
including by concluding a new contract for military service, during the
validity of the special period for the period before its end or until the
day of actual release, the place of work, position and average earnings at
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Pylyp Pylypenko, Olena Rym, Svitlana Synchuk, Volodymyr Burak y Oksana Hirnyk
Organizational and legal aspects of the protection of labor rights in the conditions of martial law
in Ukraine
the enterprise, institution, organization, farm, agricultural production
cooperatives, regardless of subordination and form of ownership, and at
individual entrepreneurs, in which they worked at the time of the draft.
Such employees have the right to receive nancial support from the State
Budget of Ukraine in accordance with the Law of Ukraine «On Social and
Legal Protection of Servicemen and Members of Their Families» (ON
SOCIAL AND LEGAL PROTECTION OF SERVICEMEN AND MEMBERS
OF THEIR FAMILIES, LAW OF UKRAINE, 1991).
One of the characteristic trends in the development of labor law and
the reform of labor legislation in the conditions of martial law is the
strengthening of the protection of the labor rights of employees and
guarantees of their implementation.
It should be emphasized that the Law of Ukraine «On Amendments to
Certain Laws of Ukraine Regarding the Functioning of the Employment
Spheres and Mandatory State Social Insurance in Case of Unemployment
During Martial Law» No. 2220-Х of 04/21/2022 established a number of
additional guarantees in the spheres of employment and mandatory state
social insurance in case of unemployment in a special period. Among the
novelties introduced by the specied law, in particular, the introduction
of one-time nancial assistance for the organization of entrepreneurial
activity, simplication of the procedure for awarding unemployment
benets, regulation of the procedure for providing benets for partial
unemployment, etc. (ON AMENDMENTS TO CERTAIN LAWS OF
UKRAINE REGARDING THE FUNCTIONING OF THE EMPLOYMENT
SPHERES AND MANDATORY STATE SOCIAL INSURANCE IN CASE OF
UNEMPLOYMENT DURING MARTIAL LAW, LAW OF UKRAINE, 2022).
Special attention will be focused on the key moments of the organization
of labor relations during the war, in particular, we will consider the
peculiarities of the organization of downtime, the conclusion of xed-term
contracts, transfers and changes in essential working conditions.
The concept of downtime is legislated in Articles 34 and 113 of the Labor
Code of Ukraine. Downtime is a stoppage of work caused by: the lack of
organizational or technical conditions necessary for the performance
of work; inevitable force; other circumstances. Therefore, layo is an
exceptional case in the production process (enterprise activity) when an
employee is temporarily unable to perform his or her job functions for an
objective reason. Most often, during martial law, the reasons (grounds)
for the introduction of downtime are: the location of the enterprise in the
temporarily occupied territory; location of the enterprise in the war zone;
complete or partial destruction of the enterprise as a result of hostilities
(CODE OF LABOR LAWS OF UKRAINE, 1971).
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CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 485-497
Equally relevant is the issue of payment for idle time, which is regulated
by Article 113 of the Labor Code of Ukraine, in particular: idle time not
due to the employee’s fault is paid at the rate of no less than two-thirds of
the tari rate of the employee’s grade/salary; during idle time, when an
industrial situation has arisen that is dangerous for the life or health of the
employee or for the people surrounding him and the natural environment
through no fault of his, the average earnings are kept for him; idle time
due to the fault of the employee is not paid (CODE OF LABOR LAWS OF
UKRAINE, 1971).
The analysis of court practice conrms the typical mistakes of
employers when registering downtime. In particular, in the Decision of
the Ordzhonikidze District Court of the city of Zaporizhzhia dated August
10, 2022 in case No. 335/3371/22, the court found signicant violations of
the requirements of the current legislation during the declaration of idle
time, in particular: lack of objective reasons for declaring idle time; illegal
establishment of payment for downtime in the amount of 2/3 of the ocial
salary; failure to acquaint the employee with the layo decision (Decision
of the Ordzhonikidzev District Court of the city of Zaporizhzhia in case No.
335/3371/22).
We believe that it is necessary to pay attention to the circumstances
that would indicate the absence of organizational or technical conditions
necessary for the employee to perform the work, as well as to cite evidence
of such circumstances, in particular to those that would indicate the
objective impossibility of the employee to perform the work precisely due
to the introduction of martial law. This is a question, in particular, about
the motivation and justication of the decision and compliance with the
grounds for introducing downtime.
In accordance with the provisions of Art. 5-1 of the Labor Code of
Ukraine, the state guarantees able-bodied citizens permanently residing
on the territory of Ukraine, in particular, legal protection against illegal
dismissal, as well as assistance in keeping a job. In particular, according to
the content of Art. 22 of the Labor Code of Ukraine, any direct or indirect
restriction of rights or the establishment of direct or indirect advantages
when concluding, changing or terminating an employment contract is not
allowed (LABOR CODE OF UKRAINE, 1971).
An employment contract may be terminated, and an employee may
be dismissed from work only on the grounds and in the manner specied
by labor legislation. According to Clause 4 of Art. 40 of the Labor Code
of Ukraine, an employment contract concluded for an indenite period,
as well as a xed-term employment contract before the expiration of its
validity period, may be terminated by the owner or an authority authorized
by him only in case of absenteeism (including absence from work for more
than three hours during a working day ) without valid reasons (CODE OF
LABOR LAWS OF UKRAINE, 1971).
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Pylyp Pylypenko, Olena Rym, Svitlana Synchuk, Volodymyr Burak y Oksana Hirnyk
Organizational and legal aspects of the protection of labor rights in the conditions of martial law
in Ukraine
It is worth noting that the Law of Ukraine «On the Organization of
Labor Relations in Martial Law» does not cancel or change the norms of the
Labor Code of Ukraine regarding grounds for dismissal at the initiative of
the employer. It is important that the labor law provides for the termination
of the employment contract at the initiative of the employer in case of
absenteeism precisely «without valid reasons».
In particular, the decision of the Supreme Court dated 09.11.2021 in
case No. 235/5659/20 states that: «absence of an employee from work both
during the entire working day and for more than three hours continuously
or in total during the working day without valid reasons is recognized as
absenteeism ( for example, arbitrary use without agreement with the owner
or his authorized body of days o, regular vacation, leaving work before the
end of the term of the employment contract or the period that the employee
is obliged to work as assigned after graduating from a higher or secondary
special educational institution). Therefore, determining the legality
of dismissal for absenteeism is not only the establishment of the fact of
the employee’s absence from work for more than three hours during the
working day, but also the establishment of the seriousness of the reasons
for the absence (Decision of the Supreme Court in case No. 235/5659/20).
It can be seen from the foregoing that the determination of the validity
of the plainti’s absence from work is a determining factor for resolving
the issue of the legality of the plainti’s dismissal from work under Clause
4, Part 1 of Article 40 of the Labor Code of Ukraine. An exhaustive list of
valid reasons for absence from work is not dened in the labor legislation of
Ukraine, therefore, in each individual case, an assessment of the validity of
the reasons for absence from work is given based on specic circumstances.
According to established judicial practice, the reason for absence from work
can be considered serious if the return to work was prevented by signicant
circumstances that cannot be eliminated by the employee himself.
Reasons that exclude the fault of the employee are recognized as
valid. Important reasons for absence from the workplace include such
circumstances as: natural disasters, illness of the employee or members of
his family, irregular operation of transport, participation of the employee in
the rescue of people or property, refusal of illegal transfer and absenteeism
in connection with this for a new job. The following are not considered
absenteeism: absence of an employee not at the enterprise, but at the
workplace; refusal of illegal transfer; refusal to work, contraindicated due
to health conditions, not stipulated by the employment contract or in
conditions dangerous to life and health; failure to report to work after the
expiration of the warning period upon termination of the employment
contract at the initiative of the employee (CODE OF LABOR LAWS OF
UKRAINE, 1971).
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Therefore, failure to report to work as a result of military operations
and related circumstances cannot result in dismissal under Clause 4 Part 1
of Art. 40 of the Labor Code of Ukraine on the grounds of «absenteeism»,
because it is due to the need to preserve the life and health of employees and
their families and is considered to be absent from work for valid reasons,
in such a case, the employees retain their workplace and position. And the
lack of proper notication of the termination of the previously introduced
layo is also a valid reason for absenteeism, since the announced layo
relieves the employee from the obligation to be present at the workplace.
The court in case No. 554/2454/22 dated 06/28/2022 came to the
conclusion that there are grounds for declaring illegal and canceling the
orders on bringing to disciplinary responsibility and terminating the
employment contract (contract), since there was no room for «absenteeism»
as such, but the employee had good reasons for not showing up to work.
The employee was reinstated at work, and the average earnings for the
period of forced absenteeism were also collected (Court decision in case
No. 554/2454/22).
Dismissal of an employee for absenteeism is possible only if there are
credible circumstances that conrm absence from the workplace without
valid reasons. The decision to end the downtime must be communicated to
the employee in advance so that the latter has the opportunity to start work
on time. The lack of notication of the employee about the termination of
the downtime excludes his responsibility for not appearing at work.
In order to quickly attract new employees to work, as well as to eliminate
personnel shortages and labor shortages, in particular due to the actual
absence of employees who were evacuated to another area, are on vacation,
idle, temporarily disabled, or whose whereabouts are temporarily unknown,
the employer may conclude with new employees, xed-term employment
contracts during the period of martial law or for the period of replacing a
temporarily absent employee (On the organization of labor relations under
martial law, Law of Ukraine, 2022). In this way, the legislator established
the right of the employer during the absence of a «permanent» employee to
conclude a xed-term employment contract with a new employee without
the consent of the permanent employee.
Also, Article 3 of the aforementioned Law regulates the specics
of transferring and changing essential working conditions in wartime
conditions. In particular, during the period of martial law, the employer has
the right to transfer the employee to another job that is not stipulated by the
employment contract, without his consent (except for transfer to another
area where active hostilities are ongoing), if such work is not contraindicated
for the employee due to the state health, only to avert or eliminate the
consequences of hostilities, as well as other circumstances that pose or may
pose a threat to life or normal living conditions of people, with wages for
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Pylyp Pylypenko, Olena Rym, Svitlana Synchuk, Volodymyr Burak y Oksana Hirnyk
Organizational and legal aspects of the protection of labor rights in the conditions of martial law
in Ukraine
work performed not lower than the average wage for previous work (ON
THE ORGANIZATION OF LABOR RELATIONS UNDER MARTIAL LAW,
LAW OF UKRAINE, 2022).
According to Art. 13 of the Law of Ukraine «On the Organization of
Labor Relations in the Conditions of Martial Law», the suspension of
the employment contract is a temporary termination by the employer of
providing the employee with a job and a temporary termination of the
employee’s performance of the work under the concluded employment
contract. The employment contract may be suspended in connection with
military aggression against Ukraine, which excludes the possibility of
providing and performing work.
The suspension of the employment contract does not entail the
termination of the employment relationship. If possible, the employer and
the employee must notify each other of the suspension of the employment
contract in any available way. Reimbursement of wages, guarantee and
compensation payments to employees during the suspension of labor is
fully entrusted to the state carrying out military aggression against Ukraine
(ON THE ORGANIZATION OF LABOR RELATIONS UNDER MARTIAL
LAW, LAW OF UKRAINE, 2022).
It should be emphasized that the provisions of the Law of Ukraine «On
the Legal Regime of Martial Law», which regulate some aspects of labor
relations dierently, the Code of Labor Laws - have priority application
during the period of martial law. The existence of a threat to the life
and health of the employee, as a result of which the employer is unable
to guarantee the safety of the latter, the lack of the ability to perform
the indicated work remotely is a reason for suspending the employment
contract even if there is a desire of the employee to continue working at his
own risk (Court decision from 18.08.2022 in case No. 279/1611/22).
The legislative approach to solving the issue when an employee has lost
contact with an employer who, as a result of hostilities, cannot organize
work for such an employee (destruction, destruction of the premises of a
legal entity, death or disappearance of a natural person-entrepreneur) is
relevant in the aspect of the investigated problems.
In accordance with Part 1 of Art. 21 of the Labor Code of Ukraine, an
employment contract is an agreement between an employee and the owner
of an enterprise, institution, organization, or a body or natural person
authorized by him, under which the employee undertakes to perform the
work specied in this agreement, and the owner of the enterprise, institution,
organization or an authorized with it, the body or individual undertakes to
pay the employee a salary and provide the working conditions necessary for
the performance of work, provided for by the labor legislation, the collective
agreement and the agreement of the parties. In view of the above, as rightly
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noted by some specialists, if the employer is unable to provide the employee
with the necessary working conditions, the latter is not obliged to perform
his labor duties (Bakonina, 2022).
In the case of communication with the employer, as well as the possibility
of this, the employment contract may be terminated in accordance with
Art. 38 of the Labor Code of Ukraine within the period requested by the
employee (LABOR CODE OF UKRAINE, 1971). In our opinion, the conduct
of hostilities in the relevant area is a valid reason for such a shortening of
the deadline. In the absence of any contact with the employer, in particular,
in the case of the death of the employer of a natural person-entrepreneur
or for other reasons that make it impossible to terminate the employment
contract, we believe that the fact of termination can be established in the
order of a separate proceeding provided for by the Civil Procedure Code of
Ukraine labor relations.
In accordance with Part 7 of Art. 19 of the Civil Procedure Code of
Ukraine, a separate proceeding is intended for consideration of cases on
conrmation of the presence or absence of legal facts that are important
for the protection of the rights and interests of a person or the creation of
conditions for the exercise of personal non-property or property rights by
him or conrmation of the presence or absence of undisputed rights (CIVIL
PROCEDURAL CODE OF UKRAINE, 2004). Clause 5, Part 2, Art. 293 of
the Civil Procedural Code of Ukraine stipulates that the court considers in a
separate proceeding cases on the establishment of facts of legal signicance
(CIVIL PROCEDURAL CODE OF UKRAINE, 2004).
Conclusions
Modern labor law in the conditions of martial law introduced in Ukraine
remains the guarantor of ensuring the labor rights of employers and
employees and does not change its essence, social signicance and social
purpose. Its main task is the proper legislative consolidation of the list of
basic rights of subjects of labor relations in accordance with international
legal standards and guarantees of their implementation, forms and methods
of protection and protection.
In the conditions of a special legal regime, when the freedom of labor
has a limited nature of work in favor of the public needs and interests of the
state, the key task of modern labor law is the development of an eective
sectoral legal mechanism for ensuring the labor rights and interests of
employers and employees.
The main trends in the development of labor law in Ukraine include:
the establishment of individual personal restrictions in the organization
496
Pylyp Pylypenko, Olena Rym, Svitlana Synchuk, Volodymyr Burak y Oksana Hirnyk
Organizational and legal aspects of the protection of labor rights in the conditions of martial law
in Ukraine
of labor relations with an emphasis on the implementation of state needs
in their regulation; increasing the exibility of the legal regulation of
labor relations and employee mobility when exercising the right to work;
strengthening the protection of labor rights of workers, primarily mobilized
persons, and guarantees of their implementation.
Analysis of the current legislation that regulates labor relations allows us
to conclude that its optimization during the war in Ukraine made it possible
to signicantly organize the order of interaction between the employee and
the employer, eliminate the potential occurrence of labor disputes, and
ensured the appropriate level of exibility of labor relations. At the same
time, the legislative approach to the adoption of new laws, amendments
and additions to current regulations should regulate labor relations taking
into account not only public interests, but also the interests of individual
citizens.
Bibliographic References
ON THE ORGANIZATION OF LABOR RELATIONS UNDER MARTIAL LAW.
2022. Law of Ukraine No. 2136-IX. Government Courier. No. 69.
ON MAKING CHANGES TO SOME LAWS OF UKRAINE REGARDING
THE FUNCTIONING OF THE SPHERES OF EMPLOYMENT
AND MANDATORY STATE SOCIAL INSURANCE IN CASE OF
UNEMPLOYMENT DURING MARTIAL LAW. 2022. Law of Ukraine
No. 2220-IX. Available online. In: https://zakon.rada.gov.ua/laws/
show/2220-IX#Text. Consultation date: 04/07/2023.
KAIDA, Natalia. 2023. Certain aspects of the protection of labor rights under
martial law. Available online. In: https://advokatpost.com/okremi-
aspekty-zakhystu-trudovykh-prav-v-umovakh-voiennoho-stanu-
advokat-nataliia-kajda/. Consultation date: 04/07/2023.
DECISION OF THE ORDZHONIKIDZE DISTRICT COURT OF THE CITY
OF ZAPORIZHIA. 2022. In case No. 335/3371/22. Available online.
In: https://reyestr.court.gov.ua/Review/105725481. Consultation date:
04/07/2023.
RESOLUTION OF THE SUPREME COURT. 2021. In case No.
235/5659/20. Available online. In: https://verdictum.ligazakon.
net/document/100956877?utm_source=biz.ligazakon.net&utm_
medium=news&utm_content=bizpress05. Consultation date:
04/07/2023.
497
CUESTIONES POLÍTICAS
Vol. 41 Nº 79 (2023): 485-497
COURT DECISION. 2022. In case No. 279/1611/22. Available online. In:
https://reyestr.court.gov.ua/Review/105810619. Consultation date:
04/07/2023.
COURT DECISION. 2022. In case No. 554/2454/22. Available online. In:
https://reyestr.court.gov.ua/Review/105204539. Consultation date:
04/07/2023.
BAKONINA, Olena. 2022. Information on the eld of labor relations under
martial law. Available online. In: https://jurliga.ligazakon.net/ru/
news/209854_nformatsya-shchodo-sferi-trudovikh-vdnosin-v-
umovakh-vonnogo-stanu. Consultation date: 04/07/2023.
CONSTITUTION OF UKRAINE. 1996. adopted by the Verkhovna Rada of
Ukraine No. 254к/96-ВР. Available online. In: https://zakon. rada.gov.
ua/laws/show/254%D0%BA/96-%D0%B2%D1%80/. Consultation
date: 04/07/2023.
THE LABOUR CODE. 1971. Approved by Law No. 322-VIII dated 10.12.71 of
the State Government, appendix to No. 50, Art. 375. Available online. In:
https://zakon.rada.gov.ua/laws/show/322-08#Text. Consultation date:
04/07/2023.
ABOUT THE LEGAL REGIME OF MARTIAL LAW. 2015. Law of Ukraine
No. 389-VIII. Available online. In: https://zakon.rada.gov.ua/laws/
show/389-19#Text. Consultation date: 04/07/2023.
ON MAKING CHANGES TO SOME LEGISLATIVE ACTS OF UKRAINE
REGARDING THE OPTIMIZATION OF LABOR RELATIONS. 2022.
Law of Ukraine No. 2352-IX (entered into force on July 19, 2022).
Available online. In: https://zakon.rada.gov.ua/laws/show/2352-
IX#Text. Consultation date: 04/07/2023.
ABOUT SOCIAL AND LEGAL PROTECTION OF MILITARY PERSONNEL
AND THEIR FAMILY MEMBERS. 1991. Law of Ukraine. Resolution
of the Verkhovna Rada No. 2012-XII dated 12.20.91. Available online.
In: https://zakon.rada.gov.ua/laws/show/2011-12#Text. Consultation
date: 04/07/2023.
CIVIL PROCEDURE CODE OF UKRAINE (Reports of the Verkhovna Rada of
Ukraine (VVR) . 2004. Nos. 40-41, 42, Article 492) 1618-IV. Available
online. In: https://zakon.rada.gov.ua/laws/show/1618-15#Text.
Consultation date: 04/07/2023.
www.luz.edu.ve
www.serbi.luz.edu.ve
www.produccioncienticaluz.org
Esta revista fue editada en formato digital y publicada
en octubre de 2023, por el Fondo Editorial Serbiluz,
Universidad del Zulia. Maracaibo-Venezuela
Vol.41 Nº 79
