Work on the challenge: is the “waiting time” for work – a time for rest?

2020 ◽  
pp. 53-58
Author(s):  
Iaroslava Svichkarova
Keyword(s):  
Waiting Time ◽  
Labor Law ◽  
Working Hours ◽  
Legal Regulation ◽  
Alcoholic Beverages ◽  
Main Body ◽  
Employment Contract ◽  
Labor Legislation ◽  
Rest Time ◽  
Atypical Employment

Problem setting. Today, one of the forms of atypical employment that has not been studied by the science of labor law remains work “on call”. At the end of 2019, the Verkhovna Rada of Ukraine registered the draft “Labor Law Codex”, which introduced an employment contract for work on call under the name “employment contract with non-fixed working hours”. Working hours when working on-call has certain characteristics, as for rest time, it can be noted that in the case of a contract with non-fixed working hours, after working a set number of hours for each call, the worker is without work, in a state of “waiting” the next call, which is impossible to predict. Therefore, the question arises whether can “waiting time” relate to the rest time? Analysis of resent researches and publications. The legal regulation of atypical employment has been analysed by S. Golovin, I. Kiselev, A. Lushnikov, M. Lushnikova, D. Morozov, O. Motsna, N. Nikitina, Protsevskyy O., O.Rymkevych, V.Soifer, O.Yaroshenko. However, there are a number of problems that do not have sufficient coverage, including the question of the ratio of call waiting time to rest time. Article’s main body. In the case of a contract with non-fixed working hours, after working out the set number of hours for each call, the employee is out of work, in a state of “waiting” for the next call, which is impossible to predict in advance. At this time, the employee is really free from performing their work duties, however, in our opinion, this time cannot be fully used by the employee at his discretion, since the latter is in the call standby mode and, if it is received, must start working. During this period, certain restrictions apply to the employee (for example, the inability to travel to another area, the use of alcoholic beverages). Therefore, we believe that the period of “waiting for a call” is not exactly a time of rest in the doctrinal sense. Conclusions and prospects for the development. n our opinion, the ability to use time at your own discretion is a defining sign of attributing the waiting time to rest time or a special type of off-duty time. In this context, the time period (number of days) for which the employee must be notified of his / her return to work is important. We believe that the longer the call notification period, the more opportunities the employee will have to use the waiting time at their own discretion (for example, if it is 7 days before the expected start date, the employee has the opportunity to travel to another area and return in advance, work for another employer, and so on), so the waiting time will be close to the signs of rest time. The study of such a category as “waiting time” for work in a contract for work with non-fixed working hours is important and requires further research in order to improve the current labor legislation.

scholarly journals Attempt № 2 on “improvement of labor legislation on the concepts of non-standard forms of employment” (zero-hours contract)

2021 ◽  
pp. 46-54
Author(s):  
Yaroslava Svichkarova
Keyword(s):  
Labor Law ◽  
Working Hours ◽  
Legal Regulation ◽  
Main Body ◽  
Protective Function ◽  
Employment Contract ◽  
Legal Structure ◽  
Labor Legislation ◽  
Atypical Employment ◽  
Economic Function

Problem setting. Nowadays one of the little-studied forms of atypical employment in the science of labor law is on-call work. At the end of 2020, the Ministry of Economic Development, Trade and Agriculture of Ukraine prepared a draft Law of Ukraine “On Amendments to the Labor Code of Ukraine to regulate some non-standard forms of employment”, which proposed the construction of a zero-hours contract. This was the second “attempt” to introduce the construction of such an employment contract. If we analyze the definition and content of the zero-hours contract contained in the project, we can see that it does not apply to the contract with zero working hours, nor to the contract “minimum-maximum”. This raises a number of questions about its legal regulation and its applicability in practice. Analysis of resent researches and publications. The legal regulation of atypical employment has been analysed by S. Golovin, I. Kiselev, A. Lushnikov, M. Lushnikova, D. Morozov, O. Motsna, N. Nikitina, O. Protsevskyy, O. Rymkevych, V. Soifer, O. Yaroshenko. At the same time, the scientific literature has not yet developed uniform approaches to defining on-call work, the agreements that apply to it, and possible ways of its legal regulation. Аrticle’s main body. “On-call work” is a generalizing concept in relation to both “zero hours” and “minimummaximum” contracts. Based on the etymological meaning of the word “challenge” – a request or demand to appear somewhere, “work on call implies that the employee performs labor functions only when he is invited (called) by the employer. What the minimum-maximum and zero-hour contracts have in common is that the employer has no obligation to hire the employee. The zero-hours contract, which was presented in the draft, does not fully apply to contracts with zero working hours, nor to contracts “minimum-maximum”, and in our opinion, its legal structure needs careful refinement. Conclusions and prospects for the development. In modern conditions, a contract on call can be attractive only to people who are unstable to work (for example, students, retirees, housewives) or those who are looking for an additional source of income. Therefore, we believe that the developers of regulations that will regulate the relations arising from non-standard forms of employment, it would be more appropriate to pay attention to the contract “minimum-maximum”, which is a more optimal form for regulating work on call. The introduction of a domestic employment contract on call will contribute to the legalization of this type of labor relations, while, in our opinion, the protective function of labor law should remain a priority in relation to the economic function.

scholarly journals Types of Rest According to the Labor Legislation Applied by the Employees of the National Police of Ukraine

2019 ◽  
Vol 87 (4) ◽  
pp. 42-53
Author(s):  
O. V. Veklіyk
Keyword(s):  
Police Officers ◽  
Labor Law ◽  
Working Hours ◽  
Legal Regulation ◽  
Correct Definition ◽  
Labor Legislation ◽  
State And Society ◽  
Rest Time ◽  
The Right ◽  
National Police

The author has researched one of the directions of the modern formation and development of the rule of law state related to the improvement of various branches of law and the relevant legislation in the field of labor law. Among the most important features of applying the rest time is the correct definition and use of its legal regulation in respect to the employees of the National Police of Ukraine, which will allow the police officers to fully fulfill the tasks assigned to them by the state and society. The subject of the right to rest is everyone who works, and therefore everyone who has the right to work. The labor legislation of Ukraine does not define the concept of the rest time. It is opposed to the concept of “working time”. All the time beyond of working hours is considered to be the rest time. Having analyzed the current labor legislation of Ukraine, we state that labor law norms in regard to the types of rest are also applied to the police officers, taking into account the specificity of their activity, which is regulated by a special law. While analyzing scientific literature, regulatory base and international legal acts the author has established and revealed the types of rest time of the employees of the National Police of Ukraine. Based on the views of certain authors, the nature and content of the types of rest time of the employees of the National Police of Ukraine have been revealed. The author has determined the use of the types of rest time and its legal regulation concerning the employees of the National Police of Ukraine.

Historical Foundations of Development of the Institution of Employment Contract

2019 ◽  
pp. 68-75
Author(s):  
Yuliya Chernenilova
Keyword(s):  
Russian Federation ◽  
Labor Relations ◽  
Civil Law ◽  
Labor Law ◽  
Legal Regulation ◽  
Economic Management ◽  
Persons With Disabilities ◽  
Employment Contract ◽  
Labor Legislation ◽  
The Russian Federation

This article describes the periods of development of the legal institution of employment contract in Russia. The characteristic features for each of them are defined. The first period was the longest and was marked by develogment of the contract of personal employment as the origin of the modern institution of employment contract. In the second period, the contract of personal employment represented the institution of civil law, and later became the subject of study of the civil law science. At that time the industrial law of the country was forming. A distinctive feature of the third period was the adoption of codified acts, as well as differentiation in the legal regulation of labor relations of temporary and seasonal workers. The fourth period is characterized by changes in state-legal methods of economic management. With the adoption of the Constitution of the Russian Federation labor legislation was assigned to the joint jurisdiction of the Russian Federation and its subjects. It is concluded that the adoption of the Labor Code of the Russian Federation necessitates a more accurate study of the problems arising in the application of specific rules of law governing the peculiarities of labor of certain categories of workers (for example, labor relations with persons with disabilities are not yet perfect because of the youth of the labor law), conflict of laws issues arising in practice, contradictions that occur in a huge array of legal documents not only in labor law, but also in other branches of law.

Employment contract with non-fixing working hour: peculiarities of working time

2021 ◽  
pp. 35-40
Author(s):  
Yaroslava Svichkarova
Keyword(s):  
Working Hours ◽  
Legal Regulation ◽  
Working Time ◽  
Time Interval ◽  
Main Body ◽  
The European Union ◽  
Minimum Duration ◽  
Employment Contract ◽  
Mode Of Operation ◽  
Working Hour

Problem setting. On-call work is today a poorly-investigated by science of labor law form of non-standard employment. Since 2019, there are several draft laws developed in Ukraine that deal with on-call work. These drafts describe it such as employment contract with non-fixing working hour. The latest draft No. 5161 of 25.02.2021 "On Amendments to Certain Legislative Acts of Ukraine on the regulation of some non-standard forms of employment" has been submitted to Parliament. This bill was developed according to the Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union. However, we believe some provisions of this bill on the establishment of working time need further adaptation. Analysis of resent researches and publications. The issue of legal regulation of non-standard employment has been analysed by V.Venedidikov, N. Vyshnevska, I. Gorgoriev, I. Kiselev, A. Lushnikov, D. Morozov, O. Mozna, N. Nikitina, O. Process, O. Rimkevich, V. Soyfer, M. Sorokishin, O. Yaroshenko. On-call work was the subject of doctor’s and candidate’s thesis of V. Gnidenko, O. Korkin, O.Pilipko, M. Shabanova. At the same time a number of legal problems were arised after the project No. 5161 had been adopted. For instance, peculiarities of the establishment of working time, the legal regulation of new legal categories in an employment contract with non-fixed working time need further adaptation. Аrticle’s main body. In the employment contract with non-fixing working hour the maximum working hours of the employee is determined, fixed in the contract, however the minimum working time is not defined due to the fact that the employer does not have a duty to provide employee work. The minimum duration of working time defined in the draft law depends only on the amount of the wage or compensation for staying in a state of waiting. In order to strengthen the coherence of terminology and better reconcile the typology and character of this non-standard employment form with the provisions of Directive (EU) 2019/1152, the draft law should enter and (or) determine the terms, such as a schedule of work, basic hours and days, mode of operation. Conclusions and prospects for the development. In the contract with non-fixed working hours, the installation and distribution of working time has specific features: maximum duration of the employee's working time is determined, fixed in the contract, and the minimum working time is not determined at all, since the employer does not have a duty in the employer to provide employee work. The minimum duration of working time defined in the draft law depends only on the amount of the wage or compensation for staying in a state of waiting. In such an employment contract basic days and hours should be establishes, that is, a time interval when an employee must perform its labor duties in case of a demand. The employee's calling on work, in turn, must be carried out by the employer in compliance with the conditions established in the contract itself (for example, the method and minimum term of the employee's notice of the start of work). The mode of operation is predictive to the employee, the one can predict "theoretically" that he can be called on in certain days and hours. The schedule of work with each call on work is really unpredictable. This schedule should be agreed between the employee and the employer before the work is started, although we believe such agree does not matter because the schedule is made within the basic days and hours that are already known to the employee.

scholarly journals Newest factors in economic development and labor law reform problems

2019 ◽  
Author(s):  
V. Zhernakov
Keyword(s):  
Economic Development ◽  
Public Relations ◽  
Labor Relations ◽  
Labor Law ◽  
Legal Regulation ◽  
Main Body ◽  
Radical Innovations ◽  
Stage Of Development ◽  
Labor Legislation ◽  
The Social

Problem setting. The Cabinet of Ministers’ submission to the Verkhovna Rada of Ukraine of the draft Law “On Labor” caused significant changes not only in the mechanism of regulation of social and labor relations, but also in the subject and system of labor law. By this, the liberal model of the economy is extended to relations in the sphere of labor, and labor itself is unreasonably regarded as a procedure for engaging in work on the basis of individual employment contracts. However, some of the legal mechanisms proposed in the project contradict international labor standards. Target of research. Based on the doctrine of the system of relations in the social-legal sphere and generally accepted legal codifications, it is necessary to research the mechanism of updating the labor legislation proposed by the Cabinet of Ministers of Ukraine. Object of research. Public relations in the sphere of labor and mechanism of systematization of labor legislation. Analysis of recent researches and publications. Issues related to the reform of labor law, which has been going on for many years, have been researched by leading scholars in the field of labor law. Among them are: Amelicheva L.P., Burak V.Y., Zhigalkin P.I., Pylypenko P.D., Prylypko S.M., Simorot Z.K., Silchenko S.O., Simutina Ya. V., Khutoryan N.M., Chanisheva G.I., Yaroshenko O.M. and many other scientists. In their works the substantive moments of the development of labor legislation are analyzed, but they do not affect radical innovations in the legislative activity of the Cabinet of Ministers of Ukraine. Article’s main body. The Cabinet of Ministers’ submission to the Verkhovna Rada of Ukraine of the bill (draft Law) “On Labor” (registration No. 2708 of 28.12.2019) introduces radical changes in the mechanism of regulation of social and labor relations. They require scientific reflection and the formation of approaches to solve the complex problems facing the labor law community. The article analyzes the processes and problems in the reform of the labor legislation. On the basis of researches of scientists-economists, lawyers of different specialties the author’s vision of the situation is formed; the most important problems that need to be solved at this stage of development of the social and labor sphere are singled out. The main shortcomings of the draft Law of Ukraine “On Labor” are indicated and the ways of their solution are overcome. Conclusions and prospects for the development. To the common factors of economic development (globalization, European integration processes) that influence the formation of the legal mechanism of regulation of relations, formed in recent years in Ukraine, were added such realities as the spread of non-standard forms of employment, liberalization of economic processes. If new forms of employment are objective realities that require awareness and appropriate legal regulation, then the implementation of the liberal model in the economy as a whole and in the regulation of social and labor relations in particular is subjective. It can worsen the human rights situation in the social and labor sphere. The process of reforming labor law must be consistent with the systematic nature of legal regulation and professionalism in the preparation of regulations. The Government’s draft Labor Law cannot be recognized as being in accordance with the above requirements.

scholarly journals Features of seafarers employment contracts

2019 ◽  
Vol 9 (11) ◽  
pp. 455-465
Author(s):  
Iryna Pidpala
Keyword(s):  
Labor Relations ◽  
Labor Law ◽  
Legal Regulation ◽  
Employment Contracts ◽  
Employment Contract ◽  
Legal Literacy ◽  
Labor Legislation ◽  
Employment Agreement ◽  
Subjective Rights ◽  
Compensation Payments

This article has explored the features of the employment contract of seafarers. The parties to this contract are the seafarer and the shipowner, who have their own subjective rights and obligations, which are defined as contracts of tax and labor law in general. Legal regulation of contracts is carried out by both international and labor legislation of the sailor's country. Objective features of seafarers' labor relations necessitate the establishment of special norms regulating working crew members of seagoing vessels, because they perform the labor functions of seafarers, attract grounds for sectoral differentiation of legal regulation of their work. Certainly, seafarers must be very attentive when concluding a contract, pay attention to the minimum list of clauses of the employment agreement, do not sign an incomplete agreement, make sure about the specified wages, compensation payments, and other conditions, show legal literacy.

scholarly journals CONCEPT AND SPECIFICS OF REST TIME OF THE NATIONAL POLICE OF UKRAINE

2019 ◽  
pp. 66-73
Author(s):  
O.V. Veklyuk
Keyword(s):  
Rest Period ◽  
Working Hours ◽  
Legal Framework ◽  
Legal Regulation ◽  
Scientific Article ◽  
Correct Definition ◽  
Labor Legislation ◽  
Rest Time ◽  
The Right ◽  
National Police

A scientific article devoted to one of the directions of the modern formation and development of the rule of law is related to the improvement of various branches of law and the relevant legislation in the fields of labor law. One of the most important features in the use of rest time is the correct definition and use of its legal regulation in relation to the National Police of Ukraine. This will allow the National Police to fully fulfill the tasks set by society. The subject of the right to rest is everyone who works, and therefore everyone who has the right to work. The concept of rest time is not defined by the labor legislation of Ukraine. It is opposed to the concept of “working time”. All-time outside working hours is considered to be rest time. Having studied the scientist’s thoughts, we can point out that during the rest period one must understand the statutory, collective, and employment contract the period of time during which the employee is released from the performance of his / her job function and which he/she can use at his / her discretion for the purpose of restoration of working capacity, health promotion, birth and the upbringing of children, the satisfaction of their own needs and interests, as well as the comprehensive development of the individual. During the analysis of scientific literature, legal framework, international legal acts, the concept of rest time of the National Police of Ukraine employees was established and revealed. Based on the views of individual authors, the nature and content of the rest time of the National Police of Ukraine employees are revealed. The use of rest time, its legal regulation against the National Police of Ukraine employees is determined. Keywords: vacation time, employee, National Police of Ukraine, service relations.

UNITY AND DIFFERENTIATION OF LEGAL REGULATION OF LABOR RIGHTS OF EMPLOYEES OF THE PROSECUTOR'S OFFICE

2017 ◽  
Author(s):  
Leonid Mohilevskyi ◽  
◽  
Olha Sіevidova ◽  
Keyword(s):  
Legal Status ◽  
Labor Relations ◽  
Labor Law ◽  
Legal Regulation ◽  
Labor Rights ◽  
Work Activity ◽  
Theoretical Approaches ◽  
Labor Legislation ◽  
Protection Of Human Rights ◽  
Definition Of

The Public Prosecutor's Office in Ukraine plays a major role in the protection of human rights and freedom, of general interests of the society and the country, and in the strengthening of law and order, thus facilitating the establishment and development of the democratic constitutional state. The effectiveness of performing the duties put onto the prosecution of Ukraine is directly dependent on the prosecutor's offices' employees that are empowered to fulfill their professional responsibilities. The legal status of an employee of a prosecutor's office is specified in the Law of Ukraine “On Public Prosecutor’s Office”. Although, some aspects of these employees' work activity are normalised in the general labor law. This expresses the principle of unity and differentiation of the legal regulation of prosecutor's office's employee's labor relations. This article researches theoretical approaches to the definition of the concepts "unity" and "differentiation". The unity of the legal regulation of labor relations is manifested in the legally established equality of all employees. Differentiation is not opposed to the principle of unity, but takes into account the characteristics of different categories of workers and working conditions to ensure equality. The relationship between the general labor law and the special law on the prosecutor's office regarding the adjustment of the labor rights of the employees of Ukraine's prosecutor's offices had been analysed. The key to effective legal regulation of labor rights of employees of the prosecutor's office of Ukraine is compliance with unity and differentiation. It had been determined that the differentiation of the legal regulation of prosecutor's office's employee's labor rights determines the mandatory and priority application of the special legislation norms. In turn, the unity of the legal regulation of prosecutor's office's employee's labor rights determines the subsidiary usage of labor legislation norms in cases of an employee's individual labor rights not being determined in the special law on Public Prosecutor's Office. Unification of labor law norms governing the labor activity of this category of workers will make it possible to achieve an optimal balance of unity and differentiation.

scholarly journals Theory and practice of legal regulation labor incapable employees

Pravovedenie ◽  
2018 ◽  
Vol 62 (3) ◽  
pp. 465-483
Author(s):  
Larisa V. Zajceva ◽  
◽  
Oksana A. Kursova ◽  
Keyword(s):  
Russian Federation ◽  
Labor Relations ◽  
Labor Law ◽  
Legal Regulation ◽  
Theory And Practice ◽  
Legal Capacity ◽  
Work Activity ◽  
Legal Personality ◽  
Labor Legislation ◽  
The Russian Federation

The study of the legal personality of citizens recognized as legally incompetent by the court is timely and relevant in the light of the recent changes in the civil legislation of the Russian Federation, as well as the emerging trends in the development of judicial practice. In the doctrine of labor law, the legal personality of individuals is observed as an independent category of labor law, differing in this capacity from other related legal categories, in particular from civil legal capacity and legal capacity. At the same time, the labor legislation of the Russian Federation has made an unsuccessful attempt to receive the norms of civil legislation in relation to the employer — an individual who is recognized incapable by the court. At the moment, the Russian legislator with regard to the possibility of concluding an employment contract on the part of an employee recognized as legally incompetent took the position of “qualified silence”, which today can hardly be called successful for a number of reasons indicated in the proposed study. The study of the legal personality of citizens recognized as incapable makes it possible to assess the level of compliance of Russian legislation with international social and labor standards, determine the vectors for its further development and improvement in terms of optimal protection of human rights and citizenship. The main methods of the research were system and complex analysis of regulatory legal acts of the Russian Federation and a number of other countries and international organizations; Comparative method, which made it possible to compare the international regulation of the participation of incompetent citizens in the work activity with Russian labor legislation, as well as the labor legislation of certain countries of the near and far abroad; Method of expert assessment, based on the analysis of court decisions and scientific publications on the participation of incapacitated persons in labor relations. The results of the study are both theoretical and practical, and suggest some directions for improving the labor legislation of the Russian Federation on the participation in labor relations of citizens recognized by the court as legally incompetent.

Russian Labor Law: System-Related Problems in its History and Modernity

2015 ◽  
Vol 3 (11) ◽  
pp. 0-0
Author(s):  
Николай Демидов ◽  
Nikolay Demidov
Keyword(s):  
Labor Relations ◽  
Labor Law ◽  
Legal Regulation ◽  
Labor Rights ◽  
Law System ◽  
Labor Legislation ◽  
Government Supervision ◽  
Hired Labor ◽  
The Right ◽  
High Degree

The article analyzes system-related contradictions inherent to the development of the Russian labor law branch in XIX—XX. By means of historical-legal, comparative, dialectic methods the author investigates the roots of modern problems in law-making and law enforcement in legal regulation of hired labor relations. The author reveals negative factors in the development of the labor legislation, that are common for Russia and world leading countries. Among main evolutional problems in labor law, the author considers excessive centralization, a high degree of the right enforcement formalization, susceptibility of the branch to political environment, an important role of non-legal regulators of labor relations, low development level of security arrangements for labor rights, inadequate government supervision, a division of employees and employers’ interests, that is not always correct. The author draws the conclusion about the implicit, objective nature of the described defects and notes an essential impossibility to overcome them.

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