The State Labor Service provided clarifications.
In Ukraine, labor relations between an employer and an employee are regulated by the relevant law. In some cases, the employer may offer the employee to sign an employment contract with unfixed working hours. Specialists of the South-Eastern Interregional Department of the State Labor Service explained what to pay attention to when concluding such a contract.
What is an employment contract with unfixed working hours
The State Labor Service explained that the Law “On Amendments to Certain Legislative Acts of Ukraine on the Regulation of Labor Relations with Unfixed Working Hours” dated July 18, 2022 No. 2421-IX added Article 21-1 Employment Contract with Unfixed Working Hours to the Labor Code.
“This article stipulates that an employment contract with unfixed working hours is a special type of employment contract under which the employee performs work at the employer’s request, and the duration of the work is not predetermined. The employer provides work and pays for it only when necessary, and the employee is obliged to perform it if such work is offered,” the report says.
The State Labor Service named the main characteristics of such an employment contract:
uncertainty of working hours, that is, there is no clear work schedule, the employee works only when necessary, which is determined by the employer;
the need for notification – the employer must notify the employee in advance of the need to perform work.
limitation of maximum duration – the total duration of work should not exceed the standard working time (40 hours per week).
Experts noted that the employee has the right to conclude an employment contract on general terms under certain circumstances.
“There are restrictions on concluding such contracts, that is, the number of contracts with unfixed working hours for an employer should not exceed 10% of the total number of employment contracts to which this employer is a party. Also, an employer who employs less than 10 employees may have only one such contract,” the message says.
What to pay attention to when concluding an employment contract with unfixed working hours
The experts explained that in accordance with clause 6-2, part 1, article 24 of the Labor Code of Ukraine, an employment contract with unfixed working hours must be concluded in writing. However, during the period of martial law, the parties determine the form of the employment contract by agreement (part 1, article 2 of the Law “On the Organization of Labor Relations under Martial Law”). This means that during the period of martial law, the written form of such a contract is not mandatory.
When concluding an employment contract with unfixed working hours, it is necessary to take into account information about:
the method and minimum term of notifying the employee about the start of work. It must be sufficient for the employee to start performing his duties in a timely manner;
the method and maximum term of notifying the employee about his readiness to start work or about refusing to perform it in cases provided for in part eight of this article;
the intervals during which the employee may be required to work (base hours and days).
The State Labor Service added that the legislation does not contain specific requirements regarding the method of notifying the employee about the start of work.
“Such notification can be made in writing, using electronic communications, by concluding acts on the performance of work, etc. There are also no special requirements regarding the specifics of setting deadlines. Such deadlines can be set in weeks, days or hours, depending on the content and specifics of the work performed,” the message says.
Experts added that it is impossible to transfer an employee from an open-ended contract to a contract with unfixed working hours.
“At the same time, an employee may demand the conclusion of an employment contract on general terms after a certain period of work under a contract with unfixed working hours, and if the employer refuses to satisfy the employee’s request to conclude an employment contract on general terms, the employee may submit a repeated request no earlier than 90 days after the previous refusal,” the State Labor Service summarized.
