Dear Volodymyr Oleksandrovych!
On April 25, 2024, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Amendments to the Labor Code of Ukraine on Establishing Additional Grounds for Termination of Employment Agreement at the Initiative of the Employer and Some Other Issues” (hereinafter – the Law). According to the draft Law, registered in the Verkhovna Rada of Ukraine in September 2022, it was proposed to amend Article 41 of the Labor Code of Ukraine (hereinafter – the Labor Code of Ukraine) and to define additional grounds for termination of an employment contract at the initiative of the employer at the legislative level, provided that “the employee who works at state-owned facilities of strategic importance for the economy and security of the state and/or critical infrastructure facilities, commits an offense incompatible with the continuation of this work related to his support of the aggressor state.”
However, by the second reading, the content of this draft law had changed significantly: instead of introducing the aforementioned amendments to Article 41 of the Labor Code, the draft law provided for amendments to Articles 40, 43, 46, 142 of the Labor Code, according to which its effect would apply not only to employees of critical infrastructure facilities.
In particular, this Law amended Article 142 of the Labor Code of Ukraine, according to which the internal labor regulations may include rules of conduct at an enterprise, institution, or organization that contain provisions on “employees providing information on their ties with individuals whose place of permanent residence (stay, registration) is in the territory of the aggressor state or the temporarily occupied territory of Ukraine.” These rules of conduct are mandatory for enterprises, institutions and organizations of strategic importance for the economy and security of the state and/or critical infrastructure facilities or operators. At the same time, in accordance with the proposed amendments to Article 40 of the Labor Code of Ukraine, failure of an employee to comply with the rules of conduct at an enterprise, institution or organization in terms of the provisions provided for in part two of Article 142 of the Labor Code of Ukraine may be grounds for termination of the employment contract at the initiative of the employer.
Thus, the Law adopted by the Verkhovna Rada of Ukraine provides that enterprises, institutions and organizations may establish (and enterprises, institutions and organizations of strategic importance for the economy and security of the state and/or critical infrastructure facilities or operators must establish) labor regulations that oblige employees to provide information on their ties with individuals who permanently reside (stay, are registered) in the territory of the aggressor state or temporarily occupied territory. Failure to comply with this requirement is one of the grounds for dismissal (termination of the employment contract at the initiative of the employer).
We, the representatives of the coalition organizations that deal with the protection of people affected by the armed aggression against Ukraine, believe that the provisions of the Law adopted by the Verkhovna Rada of Ukraine create grounds for harassment and stigmatization of people who, like millions of our fellow citizens, have relatives and friends among the residents of the temporarily occupied territories, internally displaced persons, people who have moved abroad due to Russia’s armed aggression against Ukraine and are registered in the temporarily occupied territory.
First, the requirement to report “connections” with residents of the occupied territories or people registered in these territories contradicts the state policy of reintegration of these territories, and also effectively transfers millions of internally displaced persons and other citizens registered in the temporarily occupied territories to the category of people whose “connections” should be perceived as a threat to Ukraine’s national security and the functioning of Ukraine’s critical infrastructure. Undoubtedly, crimes against the foundations of national security, including collaboration, should be thoroughly investigated. However, these cases should be considered through the prism of national criminal law, not amendments to the Labor Code.
Secondly, the Law does not define “relations with individuals”. It is unclear whether this means family ties, contacts with colleagues and friends, or perhaps maintaining connections in social networks (such as discussing news, the current situation, etc. with unknown people). The ambiguity of the scope and content of the concept of “connections” that must be reported to the employer obviously violates the principle of legal certainty and predictability of the application of legal norms. Such a provision actually allows the employer to dismiss an employee without cause, since it is unclear what actions or inactions of the employee will be considered “failure to comply with the internal labor regulations” by the employer. This, in turn, will inevitably lead to judicial appeals against dismissal decisions, with further practice being formed and employees being reinstated in their positions.
Thirdly, the Law does not clearly explain whether, in order to satisfy the requirement to report “ties” with Ukrainian citizens in/from the temporarily occupied territory of Ukraine, which may/should be added to the rules of conduct at an enterprise, institution or organization, it will be sufficient to report the very existence of such ties, or whether the employer will have the right to demand personal data of the people with whom these “ties” are established. It is also important to note that the Law does not explain what the employer should do with the information provided to them. The absence of a legally established procedure for bringing an employee to disciplinary responsibility for committing the offense specified in the draft law, as well as the lack of authority of the employer to conduct a proper investigation, does not comply with the requirements of Article 19(2) of the Constitution of Ukraine, and may lead to an unlimited interpretation of this provision in law enforcement practice and violation of employees’ rights.
Fourthly, the requirement to supplement the internal labor regulations at critical infrastructure facilities with a provision requiring employees to report information about “connections” with residents of the occupied territories or people who are there or are registered is a disproportionate measure of state policy to protect Ukraine’s national interests in the context of armed aggression against Ukraine. Indeed, the Law pays special attention to security issues at enterprises, institutions and organizations of strategic importance to the economy and security of the state, as well as at critical infrastructure facilities. However, it remains questionable whether the proposed measures are adequate and proportional to the stated goal. If the authors of the draft law really believe that any “ties” with residents of the occupied territories or IDPs pose a potential threat to national security, what about the Ukrainian Defense Forces, since many Ukrainian soldiers not only have such ties, but are also IDPs from the occupied territories, have family and friends there, and are fighting to return to their homes. As for critical infrastructure facilities, there are tens of thousands of such facilities in Ukraine in various sectors (fuel and energy sector, digital technologies, information security, food industry and agriculture, state material reserve, healthcare, capital markets and organized commodity markets, financial sector, transport and postal services, life support systems, industry, state and local government, etc.) This requirement will affect hundreds of thousands of people. The authors of the draft law justify their special attention to critical infrastructure enterprises by saying that “the Russian military, with the assistance of collaborators, is carrying out mortar attacks on industrial areas of nuclear power plants,” and on the first day of the large-scale invasion, they seized the Chernobyl nuclear power plant, and “according to Ukrainian media, such a “success” of Russia in Chernobyl was not an accident, but part of a long-running operation by the Kremlin to infiltrate secret agents into the Ukrainian state.” Thus, the MPs’ proposals to introduce rules that will affect hundreds of thousands of people are based on media reports about “secret agents” rather than on law enforcement data or court verdicts.
In addition to questions about the content of the Law, we can also talk about procedural violations during the finalization of the draft law for the second reading. Voted on April 25, 2024, the Draft Law “On Amendments to the Labor Code of Ukraine on Establishing Additional Grounds for Termination of an Employment Agreement at the Initiative of the Employer and Certain Other Issues” (Reg. No. 7731) originally had a different title – “On Amendments to Article 41 of the Labor Code of Ukraine on Establishing Additional Grounds for Termination of an Employment Agreement at the Initiative of the Employer” – and provided only for amendments to Article 41 of the Labor Code of Ukraine in the part concerning the definition of “committing an act of misconduct by an employee working for the employer”.
Pursuant to Article 116(1) of the Law of Ukraine “On the Rules of Procedure of the Verkhovna Rada of Ukraine”, proposals and amendments to a draft law being prepared for the second reading may be made only to the text of the draft law (sections, chapters, articles, their parts, clauses, sub-clauses, paragraphs, sentences) that the Verkhovna Rada adopted as a basis. The Main Committee, as an exception, may decide to take into account the proposals and amendments submitted to correct, clarify, eliminate errors and/or contradictions in the text of the draft law, other structural parts of the draft law and/or other legislative acts that were not considered in the first reading, if the need for their introduction was mentioned in the conclusions of this Main Committee and/or the expert unit of the Verkhovna Rada Secretariat and announced by the chairman of the plenary session during the consideration of such a draft law in the first reading. Such proposals and amendments must be in line with the subject matter of the legal regulation of the draft law.
Instead, when the text of the draft law was finalized for the second reading, the number of provisions of the Labor Code of Ukraine to be amended increased significantly (from proposals to amend Article 41 of the Labor Code of Ukraine to amendments to Articles 40, 43, 46, 142 of the Labor Code of Ukraine), and the amendment proposals themselves also differed significantly. This is a clear violation of the Rules of Procedure of the Verkhovna Rada of Ukraine.
According to Article 94 of the Constitution of Ukraine, the Law is signed by the Chairman of the Verkhovna Rada of Ukraine and immediately sent to the President of Ukraine. Within fifteen days after receiving the law, the President of Ukraine signs it into law and officially promulgates it or returns the law with his motivated and formulated proposals to the Verkhovna Rada of Ukraine for reconsideration.
We, the representatives of the coalition of organizations concerned with the protection of the rights of victims of the armed aggression against Ukraine, appeal to the President of Ukraine to veto the Law of Ukraine “On Amendments to the Labor Code of Ukraine on Establishing Additional Grounds for Termination of Employment Agreements at the Initiative of the Employer and Certain Other Issues” of 25.04.2024 and return the Law to the Verkhovna Rada of Ukraine with the following proposals
to exclude from the text of the Law paragraph 14 of Article 40 of the Labor Code of Ukraine;
to exclude from the text of the Law the first paragraph of part two of Article 142 of the Labor Code of Ukraine.
We believe that the state should fully facilitate the maintenance of relations with the residents of the occupied territories, and not outlaw these relations, as maintaining relations with our citizens under occupation is not a crime. Such legislative initiatives and the accompanying justifications undermine the state’s reintegration policy. We are convinced that the course of reintegration of residents of the territories currently under Russian occupation is the most acceptable vector for the development of a democratic state. Changing this vector, creating norms that actually equate Ukrainian citizens who suffered as a result of armed aggression against Ukraine with criminals, whose “connections” must be reported to their employers, are unacceptable. They negatively affect our fellow citizens under occupation and their resistance, which continues despite the actions of the aggressor country.
May 1, 2024
ZMINA Human Rights Center
NGO “Donbas SOS”
NGO “Public Holding “GROUP OF INFLUENCE”
CF “Right to Protection”
CO “CF “Stabilization Support Services”
NGO “CRIMSOS”
Crimean Human Rights Group
CHARITABLE FOUNDATION “VOSTOK-SOS”