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.

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.

LEGAL REGULATION OF WORKING HOURS: HISTORY AND MODERNITY

2020 ◽  
Author(s):  
Тамила Магомедовна Нинциева
Keyword(s):  
Working Hours ◽  
Legal Regulation ◽  
Working Time

В представленной статье рассматриваются исторические особенности развития правового регулирования рабочего времени, анализируются отдельные нормативные акты, регулирующий данный вопрос. This article discusses the historical features of the development of legal regulation of working time, analyzes individual regulatory acts governing this issue.

scholarly journals Legal regulation of working hours and rest periods of seafarers in Ukraine and Finland

2021 ◽  
pp. 170-175
Author(s):  
D.O. Dmitrenko
Keyword(s):  
Trade Unions ◽  
Legal Aspect ◽  
Working Hours ◽  
Legal Regulation ◽  
Working Time ◽  
International Labour Organisation ◽  
Overtime Work ◽  
Rest Periods ◽  
Labor Legislation ◽  
The Right

The article considers the legal regulation of working hours and rest periods of seafarers under the legislation of Ukraine in the comparative legal aspect with the legislation of Finland. Much attention is given to an analysis of working hours of seafarers, compensation for the overtime work and securance of the right of annual leave and regular periods of rest under the legislation of Ukraine and Finland, as well as conformity of Ukrainian labour legislation and social rights of seafarers with the Maritime Labour Convention (MLC, 2006), and with the legislation of Finland. Ukraine hasn’t ratified any of the International Labour Organisation Conventions relating to working time and periods of rest of seafarers, and these issues are governed by the Regulation «On working hours and periods of rest of floating sea and river transport of Ukraine» (approved by Order of the Ministry of Infrastructure of Ukraine № 135 from 29.02.2012). Finland’s trade unions play an important role in working life of seafarers, by not only protecting their rights and providing decent working conditions, but also by deviations from certain provision of the Seamen’s Working Time Act (296/1976). Those deviations can concern reduction of duration of working hours, increase of payments for overtime work, providing additional rest time, etc. It is concluded that the labor legislation of Ukraine does not contain provisions on imposing sanctions on captain or shipowner in case of violation of seafarer’s right of normal working hours, annual leave and regular periods of rest, while in Finland, captain or shipowner can be prosecuted for improper or malicious violation of the procedure of the register of working hours, rest periods, compensation payments and annual leaves. Also Ukrainian legislation provide no legal mechanism for obtaining state and social guarantees by seafarers. The article suggests changes to national legislation by passing the law regarding seafarers labour rights and ratification of the Maritime Labour Convention (MLC, 2006).

Theoretical approaches to artificial intelligence regulation in the EU: experience for Ukraine

2020 ◽  
pp. 80-85
Author(s):  
Kateryna Yefremova
Keyword(s):  
Artificial Intelligence ◽  
New Technology ◽  
Legal Regulation ◽  
Main Body ◽  
The European Union ◽  
Legal Norms ◽  
Strategic Issues ◽  
Goods And Services ◽  
Theoretical Approaches ◽  
The Eu

Problem setting. Legal regulation of the introduction and use of goods and services based on artificial intelligence technologies is covered by numerous areas of law, including rules on confidentiality, data security, responsibility for product quality, intellectual property and even antitrust law. These different areas of law are expected to gradually change in response to the special nature of artificial intelligence (AI). Because AI is a new technology, the legal regulation of which goes beyond the established institutions of law and approaches to the interpretation of legal norms. Analysis of resent researches and publications. The following scientists were engaged in research of the specified question: Matthew U. Schere, Allan Yeoman, Amy Ryburn, Philip Wood, Renee Stiles, Alex Chapman, Damien Steel- Baker and Keri Johansson, O. A. Baranov, O. M. Vinnyk, I. V. Yakovyuk, N.B. Patsuriia. Target of research. The aim of the article is to study European scientific approaches to identifying key strategic issues in the development of mechanisms for legal regulation of effective implementation and use of artificial intelligence. Article’s main body. The paper investigates scientific approaches to the limits of legal regulation of the introduction and use of artificial intelligence technologies. The history and practical steps on the way to the EU legal regulation on the introduction of artificial intelligence and related relations related to the use of these technologies are highlighted. The basic principles of development and use of artificial intelligence technologies are revealed, observance of which is obligatory. Conclusions and prospects for the development. The best approach to regulation should be based on risk assessment to ensure that responses to AI development are proportionate and not hamper the development of innovation as a whole. Instead of developing individual regulations at this stage, the European Commission has set out the legal requirements that any regulatory framework must meet to ensure that AI remains credible and respects the values and principles of the European Union.

On some theoretical issues of classification of payment systems

2021 ◽  
Author(s):  
Anastasia Kovalchuk
Keyword(s):  
Scientific Research ◽  
Legal Regulation ◽  
Payment System ◽  
Main Body ◽  
The European Union ◽  
Payment Systems ◽  
Association Agreement ◽  
State Legitimacy ◽  
Energy Community

Problem setting. The author’s vision of ways to solve the problem of classification of payment systems in the new political and socio-economic conditions is presented in the article. The need to rethink the concept of “payment system” in connection with changes in current legislation of Ukraine, which in this context makes the category of “payment transactions” instead of “transfer of funds”, as before. It is emphasized that such an innovation expands the concept of “payment system” in a broader sense, which requires additional scientific research. Analysis of recent researches and publications. The question of the classification of payment systems has been repeatedly addressed by both domestic and foreign scientists and practical workers. For domestic science and practice, there is a need for critical understanding of existing views on the classification of payment systems, which is caused by the processes of adaptation of national legislation to the EU acquis in accordance with the provisions of the Association Agreement between Ukraine, on the one hand, and the European Union, the European Atomic Energy Community and their member states, on the other hand [9], in particular, in connection with the adoption of the Law of Ukraine “On Payment Services” dated June 30, 2021 № 1591-IX [10]. Such changes in the current legislation of Ukraine have not yet been properly reflected in publications on financial and legal topics and lead to further scientific searches in this area. Target of research is to update existing approaches to the classification of payment systems to improve the legal regulation of financial relations in new economic and socio-political conditions. Article’s main body. The understanding of the term “classification” is clarified, because in the practice of research in general theory of law and branch of legal sciences, it is often used without indicating its clear meaningful understanding or such a view may have significant differences. It is noted that although for legal science classification is a traditional and widely used method of scientific research, at the same time, there is a need for a clearer idea of such a means of scientific knowledge and overcoming terminological inconsistencies. Attention is drawn to the need to compare the concept of “classification” with such related categories as typology, systematization, modeling, clustering, cataloging, periodization, etc. Conclusions and prospects for the development. The view is maintained that to classify means to divide objects, phenomena or concepts into classes, groups, etc. according to common features, properties, criteria. It is emphasized that most of the criteria for the classification of payment systems are conditionally legal and reflect their respective organizational, functional or technical and technological features. In this context, the opinion is expressed that the legal criteria for classification should be considered only those that directly have the appropriate legal significance, determine the content in the areas of legal regulation of the organization and functioning of payment systems. It is proposed to distinguish between regulated and unregulated payment systems on such a legal basis as state legitimacy.

scholarly journals Working hour’s standards: the Eurasian economic union states legislation review

2019 ◽  
Vol 31 (1) ◽  
pp. 254-259
Author(s):  
Ye. Yerbolatov
Keyword(s):  
Global Financial Crisis ◽  
Legal Aspect ◽  
Working Hours ◽  
Legal Regulation ◽  
Working Time ◽  
Time Work ◽  
Part Time ◽  
Time Part ◽  
The Global Financial Crisis ◽  
Effective Use

The study of working hours standards and its description in a comparative legal aspect have not been carried out in modern conditions by experts in the field of labor law although many researchers paid attention to the problem of legal regulation for working time. Working time is a multi-rated category. Currently, the issue to control working time legally is acquiring a new aspect. In terms of the global financial crisis, employers increasingly resort to use various types of working hours. Effective use of working time, introduction rational work and rest, special working hours (total control of working time, part-time work, subdivided working time and etc.) contributes to the improvement of social and labor relations, and thus achieving positive economic and social effect. This article expresses the author’s vision of many problems arising in particular when using unregulated working hours, rotational method and etc. Besides that based on a comparative study of the national resources a theoretical and practical conclusion is defined that it is more preferable to use softer forms of legal integration like harmonization at the stage of the Eurasian economic integration which involves labor market arrangement.

scholarly journals Legality of Dismissal of Employees Working Irregular Hours for Appearance at Work in a State of Alcoholic, Narcotic or Other Kind of Intoxication

2020 ◽  
Vol 15 (12) ◽  
pp. 122-130
Author(s):  
I. S. Tsypkina
Keyword(s):  
Law Enforcement ◽  
Pregnant Women ◽  
Russian Federation ◽  
Working Hours ◽  
Legal Regulation ◽  
Legal Basis ◽  
Labor Disputes ◽  
Work Time ◽  
Employment Contract ◽  
The Russian Federation

The paper analyzes the issues related to irregular working hours, which arise due to the lack of proper legal regulation of this legal category. The author emphasizes that the inclusion of the irregular working hours provision into the employment contract is primarily determined by the employee’s labor functions, since it is the performance of this labor function that conditions particular working hours as the regular working hours may be not enough. In addition, the paper highlights the problem of the permissibility of establishing irregular working hours for pregnant women and persons for whom reduced working hours are established. The author concludes that the spread of the rule regarding the possibility of drawing a parallel between the restrictions provided for by Art. 99 and 101 of the Labor Code of the Russian Federation currently has no legal basis. In this regard, the author attempts to find ways to resolve this problem. The paper identifies controversial and ambiguously resolved in law enforcement issues that arise when resolving labor disputes related to the termination of an employment contract with an employee who is at work in a state of alcoholic, drug and other kind of intoxication, outside the established duration of working hours. For the purpose of uniform application of the current legislation, it should be assumed that for workers with irregular working hours, all the time they are at work is considered work time.

scholarly journals Some Issues of Legal Regulation of Working Hours in the Republic of Uzbekistan

2020 ◽  
Vol 6 (5) ◽  
pp. 403-408
Author(s):  
D. Abdullaeva
Keyword(s):  
Working Hours ◽  
Legal Regulation ◽  
Working Time ◽  
Flexible Mode ◽  
The Republic ◽  
Mode Of Regulation

The article deals with the issues of legal regulation of the employee’s working time in Uzbekistan, which analyzes various aspects of issues related to working time, flexible mode of regulation of working hours, working hours, working week.

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