Your question was filled with error!
ASK A QUESTION
What if the employer violates your employment rights, for example, sets long probationary period, or you will get a lower salary etc.
According to the general rule, the conditions which worsen the position of the employee in comparison with labor legislation, are invalid (art. 9 of the Code of Labor Laws of Ukraine). This also refers to probation period which can not exceed 1 month for workers and 3 months (in some cases, with the consent of the labor union - 6) for the rest of the employees. During this time the whole labor legislation applies the employee (p.2 of art.26 and art.27 of the Code of Labor Laws). That is why the conditions which restrict rights of the employee during the probation period are invalid.
Probation period shall not be established in case of employment of persons under eighteen years old; young employees upon graduation from vocational schools; young specialists upon graduation from higher educational institutions; persons retired from military or alternative (non-military) service; disabled persons directed to work according to recommendations of medical and social expert examination. Probation shall not be established also in case of employment in other locality and in case of transfer to work at another enterprise, institution or organization, as well as in other cases prescribed by legislation.
Even if the employee agreed under the employer's pressure to worse conditions than those provided by law, he/she is entitled to apply to the court for recognition of such contract conditions void under Art. 9 of the Code of Labor Laws of Ukraine and require the conditions established in the legislation to be extended to him/her.
What to do if employer offers to work (in general or for some time) without a labor contract or on a basis of civil law contract.
A labor contract is a ground of legal relationship and employee’s protection under labor laws. An employee, who works without the contract, has no warranties: to payment and its amount, to the length of working time, to the holidays and sick leave, to the state benefits. Moreover, this time of work is not included to the seniority.
The employer, in his turn, may not require observance of labor discipline, proper performance of work or establishment of material liability on the employee. So, in essence, such form of relations is not beneficial for both of the parties.
If, nevertheless, you have a civil law contract instead of a labor one (the most common version are works contract which focuses on the result or services which are consumed during execution), then such a contract is advantageous only for an employer. He/she is not obliged to fill a workbook, adhere to the procedure of hiring and dismissal, pay for a sick-leave certificate, give a holiday, can make up for all damage done. But such civil law contract worsens the employee’s status comparing with the labor one.
Filing the lawsuit it is possible that court can establish the fact of legal labor relationship and the full amount of salary (from which the employer will be obliged to pay contributions to the state funds), and also oblige the employer to legalize this relationship and to fill the workbook. Witnesses’ statements, workplace passes and other appropriate documents may be used as evidences of your work.
The term “insurance service period” was stipulated by the Law of Ukraine “On mandatory state pension insurance” dated 09.07.2003 (effective 01.01.2004). Now the term “insurance service period” is used instead of “seniority” and has influence on pension payment and its amount. “insurance service period” means a period (term) during which an individual or his/her employer pay mandatory state pension insurance contributions to the Pension Fund of Ukraine. That’s why, after January 1, 2004 period of service which is important for pension payment will comprise only those periods of work during which insurance contributions at an amount of not less than the minimum insurance contribution have been monthly paid to the Pension Fund.
What to do if there is discriminative clause in job adverts
According to art. 21 of the Constitution of Ukraine, Conventions of the International Labor Organization No 111 and 156 ratified by Ukraine, article 2-1, 5-1, 22 of the Code of Labor Laws, part 3 of article 17 of the Law of Ukraine “On ensuring equal rights and opportunities for women and men” restriction of rights or establishment of privileges based on origin, social and property status, racial and national affiliation, language, political views, religious beliefs, membership in a labor union or other association of citizens, type and nature of occupation or place of residence while hiring is prohibited.
BUT: requirements regarding age, education and health in certain cases may be established by law. For example, special requirements are stipulated for candidates for the position of head of the higher educational institution, the notary and intern notary, attorney, separate procedure and requirements are provided for public servants. Candidates who work of increased danger and those that require professional selection need to get positive conclusion of psychophysiological expertise. In addition, the employee may not be proposed the work, which is contradicted to him for reasons of health, and there are also prohibitions on the employment of women and teenagers on certain categories of work.
Of course, if possible, it is better not to contact with an employer who ignores labor laws in the job advert already. But what actions to take, if there are not so many suitable vacancies and you are eager to defend your rights? Firstly, it is possible to address to the territorial State Labor Inspectorate and/or file a lawsuit. However, it might be problematic to prove that you were not hired because of discriminatory requirements, because the employer can claim that your inadequate qualification or professional qualities were the reason. The second option is to appeal to the Commissioner of the Verkhovna Rada for Human Rights. Thirdly, to apply measures of public influence – for example, to agree with all your friends not to buy goods in the store, which systematically refuses to hire women with children. Sometimes, especially in small localities, it can also be quite effective.
What to do if employer pays salary under the table
If an employer offers to pay salary “under the table” (in full amount or partly), then an employee is, in fact, deprived of payment for sick-leave certificates, including care after a sick child, social benefit during pregnancy and maternity leave, unemployment benefit payments, decent level of retirement income, disability benefits. Moreover, illegal wage - most often the absence of protection against illegal dismissal, lack of guarantees for safe and healthy working conditions, absence of payment in case of accident at work, lack of right to rest etc. An employer can unilaterally change the amount of wage “under the table”, claiming, for instance, the change in the profitability of the business, and in the case of wage arrears it is practically impossible to prove the amount of this wage in court, as it is not fixed in the documents.
In the case of payment wage “under the table” you can contact the State Labor Service of Ukraine, territorial authorities of the State Fiscal Service of Ukraine, or to impose responsibility on the employer-violator. A wage “under the table” is, firstly, an attack on future pensions and social protection of citizens.
A fixed-term, oral or not registered labor contract
A fixed-term labor contract, as it is less protective of the employee’s rights, under p.2 Art.23 of the Code of Labor Laws of Ukraine is concluded only as an exception when, taking into account the nature of work, labor conditions, or employee interests, an open-term employment relationship cannot be established, as well as in statutory circumstances. Generally, a labor contract should be set up for an indefinite period.
Law also stipulates mandatory written form of a labor contract: for organised staff recruitment; for works in regions with special geographic and geologic conditions, as well as conditions with an increased risk to health; for an agreement with a minor; for an agreement with an employer who is a natural person; for a special form employment contract; or when an employee insists or law requires to do so.
Pay attention! From 01.01.2015 an employee cannot be allowed to start work without labor contract made in form of an order of the company owner or an authorised body, and giving notice to the central executive body for securing of the unified social tax state policy development and implementation about an employee being hired under procedure outlined by the Cabinet of Ministers. That is, the employer is obliged to issue an order about hiring a person, as well as to notify state authorities.
If a fixed-term labor contract was concluded instead of an open-term one, such contract can be deemed void by court in the part of term thus being set up for an indefinite period. If the employer did not issue an order when hired you, you file the lawsuit for establishment of labor relationship regarding job execution without concluding a labor contract and defining the period of such job.
Besides, an employer who acts so is liable in accordance with Art.41 of the Code of administrative infractions of Ukraine, under which de facto allowing an employee to work without registering a labor contract (or a special form employment contract) leads to imposing an administrative fine on the company, facility or organisation executives regardless of the form of ownership, or on the natural persons-entrepreneurs who use hired labor, in the amount of from five hundred to one thousand citizens’ subsistence minimums.
What to do if employer requires any additional information or documents when hiring
According to p. 2 Art. 24 of the Code of Labor Laws of Ukraine while being hired for a new job a candidate must submit:
passport (or other document identifying a person)
workbook (if it is not the first workplace for a person)
Documents about the education (specialty, qualification), state of health and other ones shall be given only if cases stipulated by law.
For instance, diploma or other document about education or professional training, which proves the fact of the completed education, shall be submitted by those, who are going to be hired for the first time and have no workbook. Soldiers shall give a military ID, persons released from serving a criminal sentence — a certificate of release, persons aged 14 to 16 years — a birth certificate, and the ones, directed to work according to the jobs booking system - an order from the employment agency.
But, the law prohibits during the recruitment process to demand the information about the membership in political party and nationality, origin, registration of residence or stay (Art. 25 of the Code of Labor Laws of Ukraine).
If an employer demands from you information or documents, not envisaged by law, to give it or not depends on your own interest in this particular job and type of the demanded documents or information. If you voluntarily agree to give additional information, it will not be a violation. But remember that this information must not be used by an employer to discriminate you.
How and when wages should be paid
According to Article 43 of the Constitution of Ukraine: "The right to timely payment is protected by law." Article 97 of the Code of Labor Laws regulates that the salary of employees is carried out on a priority basis. The law also stipulates that wages should be paid to the employee regularly on working days in the period established in the collective agreement or regulation passed by an employer at least twice per month, no more than 16 days between. If the day of wages payment coincides with weekend, holiday or day off, wages are paid in advance.
About the amount, as well as on the procedure for wages payment, the employee and employer agree at the conclusion of the employment contract, and the employee must be informed about any changes that planned 2 months in advance (Art. 29 of the Law of Ukraine "On work remuneration").
In case of termination of labor relations management should make full payment to the employee on the last day of work. If it didn’t - the company must pay the employee his average salary for all the days of delays ("forced absence").
What to do if you have doubts about the accuracy of payment
During each payment of wages under article 110 of the Code of Labor Laws employees should be informed about:
Therefore, if you have doubts about the correctness of calculation you have been paid - request this information from employer and check it.
If you found that you was underpaid, it is necessary to clarify and resolve this situation with the employer. If such actions does not help - contact the State Service for Labour to bring the perpetrators to administrative responsibility under Art. 41 of the Code of Ukraine on administrative violations and apply to the court - for recovery of wages. contact the NGO "Labour initiatives" for advice.
What does wage consist of:
Wages in Ukraine consists of :
The maximum salary is not limited by anything but the minimum set by the state each year (according to the Law of Ukraine "On the State Budget of Ukraine for 2016" as of 01/01/2016 - 1378 UAH., 05/01/2016 - 1450 UAH., 01.12.2016 - 1600 UAH., not including bonuses, allowances and compensation). As a general rule, the salary can not be lower than the minimum, except for reasons such as failure of rate production, making defective products and other have occurred by the fault of the employee.
The salary is subject to indexation - the increase in the growth of the consumer price index above a certain limit (according to the Law of Ukraine "About indexations of cash income"). If your employer does not index wages, contact the NGO "Labour initiatives" for advice.
At each payday the total amount of all deductions can not exceed 20 % and in cases specifically provided by Ukrainian labour law - 50% or maximum 70% of the wage, which belongs to employee (see. Article 128 of the Code of Labor Laws).
What to do if you you are not paid wages
We advise you to make a written application to the employer with request to pay wages. You should register the original application at the secretary, and the secretary will make a mark of acceptance, will affix the date of receipt and signature (you will take a copy of the application with you). You can also send your application by registered mail and keep the receipt for sending. This will serve as proof of the existence of the debt and the fact of appeal to the employer. In case of absence of response or any reaction, we recommend you to appeal to the department of regional State service for labour issues at the place of violation, which officers are entitled to impose administrative sanctions (fines) on persons responsible for violation of terms of wages payment or for payment not in full amount (article 41 of the Code of administrative offences).
Moreover, article 175 of the Criminal code of Ukraine prescribes criminal liability for non-payment of wages, which is carried intentionally, groundlessly and for more than one month by the head of an enterprise. If there are grounds to consider that that is exactly like this, you may claim to the regional Department of internal affairs with an application regarding non-payment of wages and accountability of violators. A check will be held as a result.
But the most effective mean filing a lawsuit about the recovery of owed wages. Defendant in such case would be an enterprise, institution or organization, but not the head such institution. We would also like to pay your attention to the fact that employees, who file such claims about recovery of owed wages and reinstatement, are exempt from paying the court fees (Art.5 of the Law of Ukraine “On court fees”).
If an employer does not pay wages, justifying it with the fact that an enterprise does not have enough funds, it is possible to check if it is really so. According to the Art. 251 of the Code of Labour Laws an owner or an authorized body on demand of trade unions are obliged to provide a written permission to obtaining at bank information regarding the availability of funds on accounts of an enterprise, institution or organization or to gain such information at banks and providing it to the trade union. In case of owner’s or authorized body’s refusal to provide with such information or to give a permission to obtaining such information their acts or inaction can be appealed to the court.
According to Art.34 of Law of Ukraine “On labour remuneration” in case of wage arrears an employee has a right to claim to an employer demanding the compensation of losses of the part of salary in connection with infringement of terms of its payment according to the indices of prices for consumer goods and tariffs for services. According to the Law “On compensations for wage delays” the employee is able to get a compensation in any case of delayed payment of salary for one or more calendar months regardless of whether it's employer's’ fault or no. If the owner or authorized body refuses to pay compensation, the employee has the right to appeal to the court for the compensations.