On June 7, the Parliamentary Commissioner on Human Rights (Ombudsman of Ukraine) applied to the Constitutional Court of Ukraine regarding acknowledging as unconstitutional certain provisions of Law №2136 that regulates labor rights during the martial law (in edition of the law №3494 adopted on 22.11.2023).
The particular ground for filing a constitutional complaint is that the regulations of law №3494 state that if an employee has more than 24 days of vacation (for instance, teachers, doctors, those who work in hazardous conditions, parents with children, etc.), extra days over the threshold of 24 days may be granted as unpaid vacations, or an employer may grant them after the martial law cancellation.
He stated that under Article 64 of the Constitution of Ukraine, human rights are allowed to be limited for martial law but not to be canceled. The payments for annual (main and additional) vacations are components of wages. Unused days of annual leave cannot be granted at the employer’s decision without salary because, according to Article 45 of the Constitution of Ukraine, annual leave is paid, and its duration is determined by law.
The Ombudsman applied to the Constitutional Court after the Federation of Trade Unions of Ukraine (FPU) inquired.
It is worth reminding that law №3494 significantly changes the legal landscape around vacations during martial law and peaceful times, thus causing some comments and major concerns. Labor Initiatives were concerned about the draft law before its adoption as it narrows the guarantees of the constitutional right to leave time. At the stage of consideration in the parliament, the law received negative reviews from the Main Scientific Department and the Main Legal Department of the Parliament.
For instance, the law changed the rules for providing trade union training leaves. As for now, this type of leave is granted to elected union leaders for up to 6 days and paid by the employer. The new law stipulates that the leave may be provided “with compensation of the average wage by the trade union that made a decision to send the person for training.”
Switching the burden of payment to the union, especially in wartime when unions spend their dues to help people in need, may, in fact, be harmful to unions` strengthening capacity efforts. Many elected union leaders and activists would be deprived of the possibility of training and obtaining new skills and knowledge at educational events. Such proposals can undermine industrial relations and collective bargaining, limiting the ability of unions to function professionally and democratically.
