The Ministry of Economy of Ukraine provided explanations on the most common questions of employers about remote and home-based work.
Is it necessary to use standard forms of employment contracts for home and remote work when applying home or remote work?
According to clauses 6-1, Part 1, Article 24 of the Labour Code, an employment contract shall be usually concluded in writing. Compliance with the written form is mandatory when entering into an employment contract for remote or home-based work. According to the Ministry of Economy, when concluding employment contracts for remote or home-based work, the parties to labour relations must use the standard forms of employment contracts for home-based and remote work and conclude them in writing.
The Standard Form of an Employment Contract for Home-Based Work and the Standard Form of an Employment Contract for Remote Work provide for cases when such contracts are concluded at a time when the employee is already in employment relations with the employer.
For example, in the Note to clause 39-1 of the Standard Form of an Employment Contract for Home-Based Work and the Standard Form of an Employment Contract for Remote Work, the following is established: “Only one of the items must be indicated, depending on whether an employee who is not in employment relations with the employer was hired (clause 39), or an employment contract was concluded for home-based/remote work with an employee who is already in employment relations with the employer under a different working mode (clause 39-1)”.
Clause 39-1 of standard forms of employment contractsprovides for the following: “This Agreement shall come into force after it is signed by the Parties from _________ and is concluded to replace other employment contracts that were previously concluded between the Parties”.
Taking into account the above, the Ministry of Economy believes that if an employee has already concluded employment contracts, in particular those that already contain provisions on remote/home-based work, it is advisable to renegotiate the employment contract on remote/home-based work with such an employee according to the standard form approved by Order No. 913-21.
At the same time, if during the implementation of such a renegotiation of an employment contract, the essential working conditions of the employee change (systems and amounts of payment, benefits, working hours, establishment or cancellation of part-time work, combining professions, changing categories and names of positions, etc.), the employer must comply with the requirements of Article 32 of the Labour Code regarding the two-month notice period for the employee.
Is it possible to make changes to the standard form of an employment contract and provide for additional working conditions for the employee there?
Standard forms of employment contracts for remote and home-based work provide for the possibility of the parties, by agreement, to establish additional conditions regarding the rights and obligations of the employee and employer, additional conditions for remuneration, additional characteristics of the work performed, and other provisions. At the same time, according to Article 9 of the Labour Code, the terms of labour contracts that worsen the situation of employees in comparison with the labour legislation of Ukraine shall be invalid.
Is it necessary in the employment contract for remote or home-based work in Section IV. “Terms of Remuneration” completely duplicate the provisions of the collective agreement and/or the employer’s regulatory act on remuneration?
According to Article 29 of the Law on Remuneration of Labour, when an employee enters into an employment agreement (contract), the employer shall inform him/her of the terms of remuneration, the amount, procedure and terms of payment of wages, the grounds according to which deductions can be made in cases stipulated by law. According to Parts 1, 2 of Article 29 of the Labour Code, when entering into an employment contract for remote work, the employer shall be obliged to inform against receipt about the working conditions, familiarize the employee with the collective agreement. At the same time, the working conditions that are established in the collective agreement or regulatory act of the employer do not need to be duplicated in each employee’s employment contract.
What actions should the employer take if he/she decides to change the employee’s working hours (transfer to remote mode or transfer from remote mode to another working mode)?
According to Article 32 of the Labour Code, the employee must be notified of changes in essential working conditions (in particular, systems and amounts of remuneration) no later than two months in advance. Therefore, if the employer makes a decision to change the employee’s working hours (transfer to remote mode or transfer from remote mode to another working mode), the employer must notify such employee at least two months in advance.
At the same time, according to Part 11, Article 60-2 of the Labour Code, at the time of the threat of spreading an epidemic, pandemic, or the need for self-isolation of an employee in cases established by law, remote work may be introduced by an order (decree) of the owner or an authorized body without the mandatory conclusion of an employment contract on remote work in writing. The employee must get acquainted with such an order (decree) within two days from the date of its adoption, but before the introduction of remote work. In this case, the norms of Part 3, Article 32 of the Labour Code don’t apply.
What should be the form of the employment contract when changing the employee’s working hours?
Part One of Article 24 of theLabour Codestipulates cases of mandatory conclusion of an employment contract in writing.
To avoid labour disputes, the Ministry of Economy recommends that in such cases, employment contracts must still be concluded in writing.
What is the procedure for the employer’s actions if the employee expresses a desire to transfer to remote work?
Based on the content of Articles 32, 60-1 and 60-2 of the Labour Code, remote and home-based work should be considered working modes, the change of which, at the initiative of the employer, the latter must notify the employee at least two months in advance.
At the same time, the labour legislation does not set a time limit for such a warning if changes in essential working conditions are initiated by the employee.