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Interacción y Perspectiva Dep. Legal pp 201002Z43506

Revista de Trabajo Social ISSN 2244-808X

Vol. 14 N

Julio-septiembre

ARTÍCULO DE INVESTIGACIÓN

Garantías sociales de los empleados bajo la ley marcial en Ucrania

DOI: https://doi.org/10.5281/zenodo.10909314

Danylo Leschukh*, Oleksii Yakymets**, Natalia Polishko***, Volodymyr Kantsir****,

Ihor Furyk****

Resumen

En el artículo científico, con la ayuda de métodos filosóficos generales y especiales de

conocimiento científico, se investigan las garantías sociales de los trabajadores bajo la

ley marcial en Ucrania. La definición y clarificación de la esencia de la protección social

como una de las categorías clave de la política social del Estado. Se hace hincapié en

que la protección social de los empleados requiere la definición de un conjunto de

medidas a gran escala a nivel estatal, sectorial, regional y de producción, aumentando

la responsabilidad mutua de los empleadores y los empleados, mejorar la organización

de la prevención de accidentes y enfermedades en el trabajo. Se determinan las

principales direcciones para aumentar el nivel de protección social del empleado. Los

argumentos relativos a la necesidad, en caso de rescisión del contrato de trabajo durante

el período de la ley marcial, de garantizar la aplicación, protección y protección efectivas

y sin trabas de los derechos laborales, principalmente de los trabajadores movilizados y

desplazados internos, embarazadas y menores. La conveniencia de proporcionar

garantías adicionales a los empleados que trabajan con contratos de empleo de plazo

fijo en las condiciones de un régimen jurídico especial está justificada.

Palabras clave: protección social, garantías sociales, derechos laborales, empleado,

contrato de trabajo.

Abstract

Social guarantees of employees under martial law in Ukraine

In the scientific article, with the help of general philosophical and special methods of

scientific knowledge, social guarantees of workers under martial law in Ukraine are

investigated. The definition and clarified the essence of social protection as one of the

key categories of social policy of the state. It is emphasized that social protection of

employees requires the definition of a complex of large-scale measures at the state,

sectoral, regional and production levels, increasing the mutual responsibility of

employers and employees, improving the organization of prevention of accidents and

diseases at work. The main directions of increasing the level of social protection of the

employee are determined. The arguments concerning the necessity in case of

termination of the employment contract during the period of martial law to ensure the

unhindered and actual implementation, protection and protection of labor rights

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primarily of such workers as mobilized, internally displaced persons, pregnant and

minors. The expediency of providing additional guarantees for employees working under

fixed-term employment contracts under the conditions of a special legal regime is

substantiated.

Keywords: social protection, social guarantees, labor rights, employee, employment

contract.

Recibido: 11/08/2023 Aceptado: 12/01/2024

*Doctor of Law, Docent of the department of social law, Franko National University of Lviv, Lviv, Ukraine. ORСID

ID: https://orcid.org/0000-0003-0635-0143 . E-mail: leshchuhdr@gmail.com

**Candidate of legal sciences, Associate Professor, Professor of the department of the civil and juridical

disciplines, National Academy of Internal Affairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0002-7030-

104Х . E-mail: iakymets@gmail.com

***Philosophy Doctor in law, Associate Professor of the department of the civil and juridical disciplines,

National Academy of Internal Affairs, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-0002-3898-3896 . E-

mail: ekspertndeks@i.ua

****Doctor of Law, Professor of the department of criminal law and procedure of Educational and Scientific

Institute of Law, Psychology and Innovative Education, Lviv Polytechnic National University, Lviv, Ukraine.

ORСID ID: https://orcid.org/0000-0002-5061-5340 . E-mail: kancir_01@ukr.net

*****Candidate of legal sciences, Associate Professor of the department of social law, Franko National

University of Lviv, Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0003-0709-1876 . E-mail:

dok_igor@ukr.net

1. Introduction

The formation of the foundations of a social state, the implementation of its main

functions is impossible without proper legal regulation. The right to work occupies a

priority place in the system of basic social rights, and its implementation is interpreted

as a certain set of actions aimed at determining the content of all norms of labor law as

a branch of law and internal coherence in accordance with the objective needs of the

development of relations in this area.

The right to work, as a natural and inalienable human right to possess and use

their abilities to work, provides for the state to provide mechanisms for its

implementation. In particular, according to Article 43 of the Constitution of Ukraine,

every citizen has the right to work, primarily as an employee. The state provides an

opportunity to earn a living by labor that is not prohibited by law and that a person freely

chooses or freely agrees to (Constitution of Ukraine, 2016). The implementation of the

most accessible opportunity to exercise the right to work for citizens of Ukraine under

martial law remains a priority task of the state.

Modern social and labor relations insistently require high-quality social protection

of employees. Economic transformations of the country lead to corresponding changes

in the field of social policy, the development of social protection mechanisms based on

the principles of self-regulation and mutual support. In view of the above, it is important

to study the system of social protection of workers, taking into account current trends

in socio-economic development.

Today, it is possible to protect the rights of subjects of labor relations through

various organizational and legal means. However, the means and ways to protect human

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rights enshrined in legal norms in practice are not always really valid. In such a situation,

the system of guarantees for the protection of the rights of subjects of labor relations

requires detailed consideration and study. The greatest attention should be paid to the

guarantees of the protection of the human right to work in the termination of labor

relations with it, since, as practice shows, it is in this situation that violations of the

rights of both workers and employers are most often observed.

It should be noted that the issues of exercising the right to work and in some

cases the polarity of the interests of the employee and the employer lead to the

emergence of labor disputes. In addition, certain provisions of the Labor Code of Ukraine

are not perfect and are interpreted by the parties to labor relations in different ways. In

this regard, labor legislation establishes a large number of guarantees when entering

into labor relations, their existence. One of the most important are the guarantees of

employees in case of termination of the employment contract. The greatest risks of non-

compliance with relevant procedures and abuse exist when the termination of labor

relations is carried out at the initiative of the employer.

Introduction on the basis of the Law "On the legal regime of martial law" (On the

legal regime of martial law. Law of Ukraine, 2022) of martial law in Ukraine led to a new

stage in the development of labor relations. Under such conditions, the main task of

labor law is to develop an effective mechanism for ensuring labor rights and interests of

employees and employers. Important at the same time is the proper legislative

regulation of labor relations, the development of mechanisms for ensuring guarantees

of the right to work, including in the case when the contract was terminated.

So, the issue of social protection as one of the key categories of social policy of

the state, as well as the regulation of labor relations under a special legal regime,

requires increased attention, because today the problems associated with the

implementation of labor rights caused by the imperfection of the legal provision of the

right to work and the practice of their application do not lose relevance. One of the most

relevant todays is the development of social guarantees for employees in case of

termination of an employment contract.

2. Analysis of recent research

The theoretical and practical aspects of the study of social guarantees of workers,

labor rights, ways of their implementation and protection are devoted to the work of

many scientists. Despite a significant number of scientific works in the indicated and

related fields, they require a comprehensive study of the issue of determining the

directions of increasing the level of social protection of an employee, further

development of state mechanisms for the realization of the right to work, and related

rights and obligations of participants in labor relations.

The study of social guarantees of employees in the event of termination of an

employment contract under martial law in Ukraine did not find significant coverage and

research in the scientific literature, therefore, on the basis of the study of scientific works

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on the science of labor law and sociology, regulatory legal acts of Ukraine and judicial

practice, it is necessary to study the relevant issues in a scientific article.

3. Results and discussion

3.1. Social protection of employees as a key category of social policy

The social orientation of the policy of any state primarily means the protection of the

rights and interests of its citizens, the narrative of their implementation. Guarantees of

rights and freedoms are the duties of the state to protect a person, to create legal, social

and cultural conditions for the realization of his human rights and freedoms, activities

aimed at their protection. Guarantees are a socio-political and legal phenomenon, which

is characterized by three components: 1) cognitive, which allows to reveal substantive

theoretical knowledge about the object of their influence, to obtain practical knowledge

about the social and legal policy of the state; 2) ideological - used by political power as

a means of promoting democratic ideas within the country and abroad; 3) practical,

recognized as an instrument of jurisprudence, a prerequisite for satisfying the social

benefits of a person (Rudnitskaya, 2011). Based on this, guarantees can be defined as

a system of socio-economic, political, legal, organizational prerequisites, conditions,

means and methods that create opportunities for individuals to exercise their rights,

freedoms, interests.

The importance of standards and measures of social protection of workers, as an

active part of society, occupies a significant place among national social protective

measures, because the paradigm of modern social policy of democratic states is based

on the principles of maximum self-realization of a person, in particular through the ability

to carry out labor activities and receive a fair reward for it.

The right of every worker to adequate social protection is provided for in the Community

Charter on the fundamental rights of workers (Article 10) (Community Charter on Basic

Social Rights of Workers, 1989). Therefore, from the definition of the essence of this

concept, the types, scope and content of the rights vested in the subjects of such a right

will differ.

The grounds, conditions, standards and guarantees for the realization by employees

of the right to social protection are determined within the framework of centralized right-

wing regulation in accordance with the constitutional provision of paragraph 1 of part 1

of article 92 of the Constitution of Ukraine (Constitution of Ukraine, 1996). However, the

specificity of the sectoral nature of labor law, as a social law, allows the use of contractual

procedures to expand state guarantees, in particular in the field of social protection of

employees.

Proclaimed as constitutional, the human right to social protection is associated with

the emergence of needs for material support, social services, rehabilitation measures,

etc., caused by social risks.

Social protection is one of the key categories of social policy. In the most general

sense, it is a set of organizational, legal and economic measures aimed at ensuring the

well-being of members of society in specific economic conditions (Libanova, 2023). There

is a narrow and broad interpretation of this term. Within the framework of a narrow

interpretation, social protection is defined as a set of actions aimed at helping people in

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difficult life situations. It is personified by passive policy measures, which, for the most

part, have the appearance of social assistance. A broad interpretation of social protection

includes, in addition to its own assistance during life crises, also mechanisms aimed at

their prevention (Ivanova, 2003).

Consequently, social protection of workers is a system of measures aimed at

observing and exercising the social rights of workers, compensation and prevention of

the consequences of social and professional risks taken by the employer or other entities

in cases and on conditions, predefined during the procedure of social dialogue and

enshrined in the acts of social dialogue, in order to realize the social responsibility of

employment partners, to ensure proper, safe and healthy working conditions, wages,

social insurance and payments under its programs, social services and non-insurance

social benefits, etc., outside their obligations provided for within the framework of

centralized regulation of relations of this type.

A separate component of the social protection system is social standards - minimum

levels of social security, wages, etc. (Libanova, 2023). Such social standards are, in

particular, social guarantees of employees in case of termination of an employment

contract. This issue will be given attention in the next subsection of the scientific article.

The basis of a new type of social and labor relations is the awareness of the interests

and needs of employees. An example of successful enterprises shows that management

efficiency is achieved precisely in those where there is no alienation of employees from

their professional duties, where trust in social partners in the person of employers is

formed. Social factors today are valued by employees along with material benefits and

conditions of social security, so it is advisable to determine the insurance protection of

employees as a state of their protection from possible social risks associated with

violation of vital interests in the field of social rights and freedoms (the right to work and

its appropriate payment for professional education, treatment, rest, etc.). Such values

should become the basis of social policy of the state and enterprise in particular.

Social protection of employees requires the definition of a complex of large-scale

measures at the state, sectoral, regional and production levels; increasing the

responsibility of both employers for proper working conditions and employees for

meeting conditions for safe work; improved organization of accident prevention and

production-related diseases.

Recently, during the device to work, workers are increasingly paying attention not

only to the size of wages, but also to the social package, therefore, with the development

of market relations, the importance of social benefits and benefits increases, the share

of which is constantly growing in the total income of the employee. Employers, providing

their employees with benefits in excess of the benefits provided by legislative norms,

solve a number of tasks, including attracting new employees to the enterprise, reducing

turnover and securing qualified personnel. At enterprises where there is a developed

system of payments and benefits, significantly lower turnover rates, employees are more

loyal to the administration, trying to stay in their workplace. This is especially true for

highly skilled workers.

In our opinion, it is advisable to increase the level of social protection of an employee

in modern economic conditions in the following areas: ensuring safe working conditions;

introduction of necessary measures for occupational safety and social protection in case

of occupational diseases and accidents; citizens' access to national health, rehabilitation

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and vocational education systems; providing a living wage of material means in case of

unemployment, loss or decrease in income due to illness, birth of a child, accident in

everyday life, occupational injury; full and timely payment of remuneration; creation of

a basis for increasing the interest of workers in high-performance work by increasing

wages; providing an additional "social package" and various social services; guarantees

of employees in case of termination of the employment contract.

We share the point of view of individual scientists that social protection measures, on

the one hand, should be carried out by providing each employee, regardless of position,

experience and qualification, with equal opportunities to develop professionally, to

implement their knowledge and skills. On the other hand, social assistance, according to

its essence, should be targeted, that is, provided only to those who need it (Steshenko,

Pupena, 2019).

Consequently, the level of social protection is determined by the quality of a person's

working life, the price of his labor, the specific costs of reproduction of the employee

himself. Therefore, the main task is to develop a unified strategy of social and labor

partnership, uniting the interests of the state, various economic entities and the person

of labor.

3.2. Social guarantees of employees in case of termination of the employment contract

Guarantees inextricably linked with the state are reflected in legal acts, which are a

set of conditions and special legal methods and means that determine the conditions

and procedure for the implementation of the indisputable exercise of the rights and

freedoms of a person, as well as their protection, protection and restoration in case of

violation.

Currently, numerous bill work is underway in Ukraine in the direction of reforming

various spheres of social protection, including workers. Among them: the introduction of

a funded pension system, as well as a professional pension system, health care reform,

the formation of employment policy, improvement of the system of compulsory state

social insurance, employment of persons with disabilities, etc. (Gosteva, 2021).

The amendments to the Labor Code of Ukraine recently introduced by Law No. 2352-

ІKh relate, in particular, to the concretization of the employer's duties before the start

of the employee's work under an employment contract, the consolidation of new grounds

for termination of the employment contract and the procedure for termination on some

of these grounds. Thus, Art. 13 of the Law specifies the procedure for suspending the

employment contract and its execution and provides for the possibility and procedure

for appealing the relevant order of the employer in case of disagreement with the

employee (On amendments to some legislative acts of Ukraine regarding the

optimization of labor relations, 2022).

Also, Law No. 5371 "On Amending Certain Legislative Acts to Simplify the Regulation

of Labor Relations in the Field of Small and Medium-Sized Enterprises and Reduce the

Administrative Burden on Entrepreneurial Activity" is aimed at expanding the contractual

principles for regulating labor relations for the period of martial law, which is to enable

the employer and the employee by mutual agreement to include in the written

employment contract provisions on the occurrence and termination of labor relations,

working conditions, rights and guarantees defined by the Labor Code of Ukraine, at its

discretion. The application of the contractual regime for the regulation of labor relations

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310

by employers is voluntary (On making changes to some legislative acts of Ukraine on

simplifying the regulation of labor relations in the field of small and medium-sized

entrepreneurship and reducing the administrative burden on entrepreneurial activity,

2022).

The employer and the employee are invited, at their own discretion, by mutual

agreement, to regulate their relations in terms of the emergence and termination of

labor relations, the remuneration system, labor standards, wages, allowances,

surcharges, bonuses, rewards, working time and rest standards, etc. In addition, the

dismissal of an employee at the initiative of the employer is allowed without explanation,

subject to compensation, employees are deprived of the right to trade union protection,

socially vulnerable categories of persons actually lose their guarantees.

As the analysis of labor relations practice shows, there are problems of non-

compliance with the guarantees of the position of employees established by labor

legislation in comparison with the requirements of labor legislation (Articles 42, 42-1,

43, 44, 47, 49-2, 49-4 of the Labor Code) (Labor Code of Ukraine, 1971).

Justification of termination of labor relations "as a legal guarantee of an employee

upon termination of an employment contract at the initiative of the employer imposes

on the owner or his authorized body" the burden of proving the existence of a legal basis

for dismissal (Convention of the International Labor Organization No. 158 on the

termination of labor relations at the initiative of the employer, 1982). In fact, this

indicates that the groundlessness of the termination of labor relations guarantees the

employee the safety of the workplace, and in the case of non-compliance by the

employer with the said guarantee, such dismissal is considered illegal. Violation of the

guarantees of termination of labor relations, even if there is a legal basis for the dismissal

of an employee, is also considered illegal dismissal (Tangiyan, 2020).

The employer has no right to force the employee to write a letter of resignation of

his own free will under any conditions. If the company is located in the area of hostilities

and it is impossible to organize the work of employees, the employer can introduce

remote, home-based work, provide leave at the request of the employee, including

without pay, issue a downtime without the fault of the employee, suspend the

employment contract (Labor Code of Ukraine, 1971).

We emphasize that the mobilized employee retains his place of work and position at

the enterprise, in an institution, organization, farm, agricultural production cooperative,

regardless of subordination and form of ownership, and among individuals -

entrepreneurs for whom they worked at the time of conscription. Such employees are

paid financial support at the expense of the State Budget of Ukraine in accordance with

the Law of Ukraine "On Social and Legal Protection of Military Personnel and Members

of Their Families."

During the absence of a mobilized employee, the employer may conclude a fixed-

term employment contract with another employee, which is subject to termination under

paragraph 2 of Art. 36 of the Labor Code (expiration of the contract) in the event of

demobilization of the main employee and return to his place of work (position) (Labor

Code of Ukraine, 1971).

Currently, certain problems have developed in Ukraine regarding the real

implementation of social guarantees of persons working under fixed-term employment

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contracts. In particular, the current Ukrainian labor legislation does not provide

equivalent protection provided by ILO Convention No. 158 for employees working under

fixed-term labor contracts (contracts). In the case of equivalent guarantees to

employees, the context of the Decision of the Constitutional Court of Ukraine No. 6-p

(II)/2019 of 16.09.2019 would be different, or there would be no such proceedings at

all. In this regard, there is a need to improve the current labor legislation, where it is

necessary to provide appropriate equivalent guarantees to employees working under

fixed-term labor contracts (contracts).

Equivalent protection for employees working under fixed-term employment contracts

(contracts) may be the development of adequate legal guarantees, in particular: "a ban

on the termination of fixed-term employment relations for the period of temporary

disability of the employee, as well as for the duration of his vacation"; "monetary

compensation in the amount of, for example, 0.5 official salary, in case of termination

of a fixed-term employment contract (contract) during the period of temporary disability

of the employee."

Conclusions

In modern economic conditions, it is advisable to increase the level of social

protection of an employee in the following areas: creating safe working conditions;

introduction of necessary measures for occupational safety and social protection in case

of occupational diseases and accidents; citizens' access to health, rehabilitation and

vocational education systems; providing a living wage of material means in case of

unemployment, loss or decrease in income due to illness, birth of a child, accident in

everyday life, occupational injury; full and timely payment of remuneration; creation of

a basis for increasing the interest of workers in high-performance work by increasing

wages; providing an additional "social package" and various social services; guarantees

of employees in case of termination of the employment contract.

Social protection of employees requires the definition of a complex of large-scale

measures at the state, sectoral, regional and production levels, increasing the mutual

responsibility of employers and employees, improving the organization of prevention of

accidents and diseases at work. The development of a social, legal state should be

accompanied by effective legal mechanisms for ensuring human rights. In the realities

of the war in Ukraine, employees and employers should quickly adapt to changes in labor

legislation, in connection with the socially necessary purpose of such implementations.

In the event of termination of an employment contract, employees, primarily mobilized,

internally displaced persons, pregnant and minors, during the period of martial law

should be provided with unhindered and actual implementation, protection and

protection of their labor rights.

Under the conditions of a special legal regime introduced in connection with hostilities

on the territory of Ukraine, for employees working under fixed-term employment

contracts, guarantees should be provided in the form of appropriate prohibitions on the

termination of fixed-term employment relations for the period of temporary disability of

the employee, as well as during his stay on vacation and monetary compensation in case

of termination of a fixed-term employment contract during the period of temporary

disability of the employee.

Bibliographic references

Leschukh, Yakymets et al / Garantías sociales de los empleados bajo la ley marcial en Ucrania

312

 Community Charter on Basic Social Rights of Workers. (1989). Law of Ukraine.

No. 994-044. URL: https://zakon.rada.gov.ua/laws/show/994_044 (date of

access: 25.01.2024).

 Constitution of Ukraine. (1996). Law of Ukraine. No. 254к/96-ВР. URL:

https://zakon.rada.gov.ua/laws/show/254%D0%BA/96-%D0%B2%D1%80

(date of access: 25.01.2024).

 Convention of the International Labor Organization. No. 158 on Termination of

Employment Relations at the Initiative of the Employer of 1982. URL:

https://zakon.rada.gov.ua/laws/show/993_005 (date of access: 25.01.2024)

 Gosteva N., Tuley P., Davydenko V., Shubin O., Prykhodko V. (2021). The state of

social dialogue in Ukraine and the positions of social partners. URL:

https://library.fes.de/pdffiles/bueros/ukraine/18189-20210903.pdf (date of

access: 25.01.2024).

 Ivanova O. (2003). Social policy: theoretical aspects. Course of lectures. Kyiv:

Kyiv-Mohyla Academy. Ukraine.

 Labor Code of Ukraine. (1971). Law of Ukraine. No. 322-08. URL:

https://zakon.rada.gov.ua/laws/show/322-08#Text (date of access:

25.01.2024).

 Libanova E., Paliy O., Skurativskyy V. (2003). Social policy. Kyiv. Ukraine.

 On amendments to some legislative acts of Ukraine regarding the optimization of

labor relations. (2022). Law of Ukraine. No. 2352-IX. URL:

https://zakon.rada.gov.ua/laws/show/2352-20#Text (date of access:

25.01.2024).

 On making changes to some legislative acts of Ukraine on simplifying the

regulation of labor relations in the field of small and medium-sized

entrepreneurship and reducing the administrative burden on entrepreneurial

activity. (2022). Law of Ukraine No. 5371. URL:

https://pon.org.ua/novyny/9668-zakonoproiektu-suttievo-zachipaie-prava-ta-

interesy-naimanykh-pracivnykiv-ta-profspilok.html (date of access:

25.01.2024).

 On the Legal Regime of Martial Law. (2015). Law of Ukraine. No. 389-VIII. URL:

https://zakon.rada.gov.ua/laws/show/389-19#Text (date of access:

25.01.2024).

 Rudnytska O. (2011). Concept and classification of guarantee payments. Actual

problems of the state and law. Vol. 57, 175–182.

 Steshenko O., Pupena S. (2019). Social protection of employees in the conditions

of socio-economic development. Pryazovsky Economic Bulletin. No. 5 (16). 229–

233.

Interacción y Perspectiva. Revista de Trabajo Social Vol. 14 N

2 / julio-septiembre, 2024

313

 Tangiyan, O. (2020). Legal guarantees of “equivalent protection” for employees

who work under fixed-term employment contracts (contracts)”. Scientific bulletin

of public and private law. Vol. 3–2, 65–71.