An employment contract with non-fixed working hours - a novelty in wartime or an urgent necessity (+ Template of an employment contract with non-fixed working hours)

10.08.2022 the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine Regarding the Regulation of Labor Relations with Unfixed Working Hours" entered into force, which added Article 21-1 (Employment contract with unfixed working hours) to the Labor Code of Ukraine (hereinafter - Labor Code).

This bill has been under consideration since February 2021. That is, this norm is not purely "military", but there was a certain need to introduce it into the code.

Goal

As stated in the explanatory note to the adoption of the specified law, the purpose of its adoption is to settle the issue of non-standard forms of employment for persons who perform work on an irregular basis, to ensure flexibility in choosing the organization of labor relations, and to increase the mobility of the employee when exercising the right to work.

According to the terms of such a contract, the employee's obligation to perform work arises only on the condition that the owner or his authorized body provides available work, without guarantees that such work will be provided continuously. The use of an employment contract with non-fixed working hours increases the mobility of the employee, gives greater freedom of choice in exercising the right to work, and also creates a convenient legislative mechanism for legalizing the work of freelancers who prefer the execution of short-term projects and are not limited to the execution of work for one customer.

Definition

Therefore , an employment contract with non-fixed working hours is a special type of employment contract, the terms of which do not establish a specific time of work, the obligation of the employee to perform which arises only in the event that the employer provides the work provided for in this employment contract without guaranteeing that such work will be provided permanently, but in compliance with the conditions of payment of labor provided for in this article.

The employer independently determines the necessity and time of the employee's involvement in work, the scope of work and, within the period stipulated by the employment contract, agrees with the employee on the mode of work and the duration of the working hours necessary to perform the relevant work. At the same time, the requirements of the legislation regarding the duration of working hours and rest time must be observed.

Essential terms

An employment contract with non-fixed working hours must contain, in particular, information about:

the method and minimum period of notifying the employee about the start of work, which should be sufficient for the employee to start performing his duties in a timely manner;

method and maximum period of notification from the employee about readiness to start work or refusal to perform it in the cases provided for by part eight of Article 21-1 of the Labor Code ;

intervals during which the employee may be required to work (base hours and days).

Other important features

An exemplary form of an employment contract with non-fixed working hours is approved by the central executive body, which ensures the formation of state policy in the field of labor relations.

The number of employment contracts with unfixed working hours at one employer may not exceed 10 percent of the total number of employment contracts to which this employer is a party.

An employer (employer - a natural person) who uses the labor of less than 10 employees may enter into no more than one employment contract with unfixed working hours.

The number of base hours an employee may be required to work may not exceed 40 hours per week and the number of base days may not exceed 6 days per week.

The employee has the right to refuse to perform work if the employer requires the performance of work outside the basic days and hours or if he was notified of the availability of work in violation of the minimum terms specified in the employment contract with non-fixed working hours.

An employee's refusal to perform work on the basic days and hours is grounds for bringing him to disciplinary responsibility, except for cases of refusal due to temporary incapacity or the performance of state or public duties, as well as notification by the employer to the employee about the availability of work in violation of the minimum terms , determined by an employment contract with non-fixed working hours.

Wages are paid to an employee who performs work on the basis of an employment contract with non-fixed working hours, for the time actually worked.

Under the piecework payment system, wages are paid to the employee for the work actually performed at piecework rates established in the employment contract with unfixed working hours.

The minimum working time of an employee who performs work on the basis of an employment contract with non-fixed working hours during a calendar month is 32 hours. If an employee has worked for less than 32 hours during a calendar month, he must be paid wages for at least 32 hours of working time in accordance with the terms of payment specified in the employment contract.

In the event that the employer does not provide work to an employee who performs work on the basis of an employment contract with unfixed working hours, the salary for the piecework system of labor payment during the calendar month must be paid to the employee in an amount not less than the amount of the salary of an employee of the corresponding qualification, whose work is paid according to the hourly system, - for 32 hours of working time.

If the employee agrees to be involved in work outside of the basic days or hours, his work is paid in an amount not less than provided for in the terms of the employment contract, and in case of exceeding the normal duration of working hours - in the manner provided for in Article 106 of this Code.

An employer may not prohibit or prevent an employee who performs work on the basis of an employment contract with unfixed working hours from performing work under employment contracts with other employers. Performance of work under the conditions of non-fixed working hours does not entail any restrictions on the scope of labor rights of employees.

An employment contract with non-fixed working hours may establish additional grounds for its termination , which must be related to the skills or behavior of the employee or other reasons of an economic, technological, structural or similar nature.

An employee who has worked under the terms of an employment contract with unfixed working hours for more than 12 months has the right to apply to the employer with a request to conclude a fixed-term or indefinite employment contract under the terms of the employer's generally established work schedule with appropriate remuneration.

Based on the results of consideration of the specified requirement, the employer is obliged within 15 calendar days from the date of the employee's application to conclude such a fixed-term or indefinite employment contract with him or to provide him with a reasoned answer in writing about the refusal to conclude such an employment contract.

In the event of the employer's refusal to enter into such a fixed-term or indefinite employment contract, the employee has the right to re-apply with the corresponding demand during the entire term of the employment contract with unfixed working hours, but not earlier than 90 days after receiving the employer's response to his previous demand.

You can create an employment contract with non-fixed working hours in the Instaco designer by following the link . To create, you only need to enter the necessary data in the designer.