Termination of Employment Convention, 1982 (No. 158) - Ukraine (Ratification: 1994)

Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the Confederation of Free Trade Unions of Ukraine (KVPU), as well as the observations of the Federation of Trade Unions of Ukraine (FPU), received on 6 October 2022, concerning the application of the Convention. It further notes the observations of the KVPU and the FPU, received on 12 October 2022.

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.

Article 2(2)(b) of the Convention. Exclusion of workers’ serving a probationary period from application of the Convention. The Committee notes the Government’s report, including the statistical information provided on the practical application of the Convention. In response to the Committee’s previous comments, the Government indicates that the revision of the draft Labour Code is still ongoing, and that in April 2016 the ILO provided technical assistance in this regard. Thereafter, a tripartite working group was established and continues to meet, with the objective of reconciling the positions of the social partners in respect of the draft Labour Code, taking into consideration the ILO’s recommendations in respect of the draft. The Committee notes the Government’s indication that pursuant to section 39 of the draft Labour Code, an employer and employee may agree, as part of the employment contract, that the employee will undergo a probationary period to verify the employee’s suitability for the position. The Government adds that section 41 of the draft Labour Code establishes a general three-month maximum probationary period, and that the probationary period for blue collar workers must not exceed one month. The Committee notes that a longer probationary period (up to six months) may be specified for managerial staff, including directors of legal entities or their deputies, chief accountants or their deputies, and directors of individual subdivisions of legal entities.The Committee requests the Government to indicate the reasons underlying the different probationary periods proposed for different categories of workers under the draft Labour Code. The Government is also requested to inform the Committee of developments in regard to the process of revising the draft Labour Code and to provide copies of the new Code once it is adopted.

Article 11. Probationary period. The Government indicates that an employer may dismiss an employee at the end of the probationary period with three days’ written notice where it is established that the employee is unsuitable for the position for which he or she was hired, or for the work to be performed. The Committee draws the attention of the Government to the fact that under Article 11 the period of notice provided must be “reasonable” and that the need for a notice period is independent of the requirement of valid reason for termination of employment (paragraph 240 of the 1995 General Survey on protection against unjustified dismissal).The Committee requests the Government to provide information on the manner in which effect is given to this provision of the Convention.

Parts IV and V of the report form. Practical application of the Convention. The Committee welcomes the statistical information provided by the Government on court decisions relevant to the application of the Convention. The Committee further notes the information provided by the Government in relation to the General Agreement on basic principles and standards for the implementation of socio-economic policy and labour relations in Ukraine (2010–12), which calls for branch and regional level collective agreements to set out the criteria and procedures for mass lay-offs of workers and, where these cannot be avoided, for coherent measures to help laid-off workers find employment.The Committee requests the Government to continue to provide information on the manner in which the Convention is applied in practice, including, current examples of collective agreements and court decisions involving questions of principle relating to the application of the Convention, including decisions addressing the probationary period and notice period, grounds for termination (Part IV of the report form), terminations for reasons of economic, technological, structural or similar reasons as well as available statistics on the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided (Part V).

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 2(2)(b) of the Convention. Exclusion of workers’ serving a probationary period from application of the Convention. The Committee notes the Government’s report, including the statistical information provided on the practical application of the Convention. In response to the Committee’s previous comments, the Government indicates that the revision of the draft Labour Code is still ongoing, and that in April 2016 the ILO provided technical assistance in this regard. Thereafter, a tripartite working group was established and continues to meet, with the objective of reconciling the positions of the social partners in respect of the draft Labour Code, taking into consideration the ILO’s recommendations in respect of the draft. The Committee notes the Government’s indication that pursuant to section 39 of the draft Labour Code, an employer and employee may agree, as part of the employment contract, that the employee will undergo a probationary period to verify the employee’s suitability for the position. The Government adds that section 41 of the draft Labour Code establishes a general three-month maximum probationary period, and that the probationary period for blue collar workers must not exceed one month. The Committee notes that a longer probationary period (up to six months) may be specified for managerial staff, including directors of legal entities or their deputies, chief accountants or their deputies, and directors of individual subdivisions of legal entities. The Committee requests the Government to indicate the reasons underlying the different probationary periods proposed for different categories of workers under the draft Labour Code. The Government is also requested to inform the Committee of developments in regard to the process of revising the draft Labour Code and to provide copies of the new Code once it is adopted.

Article 11. Probationary period. The Government indicates that an employer may dismiss an employee at the end of the probationary period with three days’ written notice where it is established that the employee is unsuitable for the position for which he or she was hired, or for the work to be performed. The Committee draws the attention of the Government to the fact that under Article 11 the period of notice provided must be “reasonable” and that the need for a notice period is independent of the requirement of valid reason for termination of employment (paragraph 240 of the 1995 General Survey on protection against unjustified dismissal). The Committee requests the Government to provide information on the manner in which effect is given to this provision of the Convention.

Parts IV and V of the report form. Practical application of the Convention. The Committee welcomes the statistical information provided by the Government on court decisions relevant to the application of the Convention. The Committee further notes the information provided by the Government in relation to the General Agreement on basic principles and standards for the implementation of socio-economic policy and labour relations in Ukraine (2010–12), which calls for branch and regional level collective agreements to set out the criteria and procedures for mass lay-offs of workers and, where these cannot be avoided, for coherent measures to help laid-off workers find employment. The Committee requests the Government to continue to provide information on the manner in which the Convention is applied in practice, including, current examples of collective agreements and court decisions involving questions of principle relating to the application of the Convention, including decisions addressing the probationary period and notice period, grounds for termination (Part IV of the report form), terminations for reasons of economic, technological, structural or similar reasons as well as available statistics on the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided (Part V).

Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee noted in its 2011 direct request the Government’s intention to adopt a new Labour Code which would replace the previous legislation, as well as a number of other legal acts and regulations which currently supplement the Labour Code of 1971. The ongoing revisions aim to adapt labour legislation to market conditions and introduce changes to the current law. The Committee notes the observations made by the Confederation of Free Trade Unions of Ukraine (KVPU) in July 2012 and the Government’s response in November 2012. The KVPU recalls that section 48 of the draft Labour Code increases the probationary period from three to six months and that section 49 of the draft Labour Code provides the employer with an unlimited right to dismiss a worker during the probationary period. The Government indicates that, in principle, the probationary period is three months. Section 48 of the draft Labour Code sets the probationary period for a period of up to six months for specified categories of employees, such as managerial personnel. The Government adds that section 49 allows employers to dismiss a worker during the probationary period following a written notice to the worker. The Committee understands that the remarks of the KVPU are based on a draft project of the Labour Code and that the 1971 Labour Code of Ukraine, as amended, is still in effect. The Committee trusts that the Government will be mindful of each of the provisions of the Convention, in order to ensure their full and effective application, when reviewing its Labour Code. It also invites the Government to provide a report containing relevant information on the application of the Convention if modifications to the current termination of employment legislation were to occur before 2016 when its next report is normally due. The Committee also invites the Government to provide in its next report information on the manner in which the Convention is applied in practice, including examples of collective agreements and court decisions dealing with grounds for termination, consultations with workers’ representatives in case of terminations for reasons of economic, technological, structural or similar nature (Article 13(1) of the Convention) and available statistics on the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided (Part V of the report form).

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes the Government’s detailed report received in August 2011. It notes that the Government’s intention to adopt a new Labour Code which would replace the previous legislation, as well as a number of other legal acts and regulations which currently supplement the Labour Code of 1971. The ongoing revisions aim to adapt labour legislation to market conditions and introduce changes to the current law. The Committee notes the observations made by the National Forum of Trade Unions of Ukraine (NFTUU) and the Confederation of Free Trade Unions of Ukraine (KVPU) in April 2010 and August 2010, respectively, and the Government’s response to those observations in September 2010. The NFTUU indicated that section 122 of the draft Labour Code regarding termination of employment at the employer’s initiative was not in conformity with the Convention because the employment of a trade union representative could be terminated only with the consent of the trade union. The Government indicated that, in the process of discussing and revising the draft, the social partners have agreed to establish a procedural framework for compulsory consultations addressing the issue of termination of employment of a trade union representative. The Government indicated that the draft law provided for a possibility to address the court by the relevant elected body of the trade union organization, which did not exist in the past. The KVPU reported that section 48 of the draft Labour Code increases the probationary period from three to six months and that section 49 of the draft Labour Code provided the employer with an unlimited right to dismiss a worker during the probationary period. The KVPU indicated that there is a widespread practice, especially in the banking sector, to dismiss workers after three months in order to avoid paying any severance benefits. The Government confirmed that the employer is entitled to dismiss the worker during the probationary period if the worker does not meet the job requirements. However, it indicated that, although the worker is not entitled to severance benefits, the worker is entitled to unemployment benefits from the Employment Service and, consequently, the provisions in question appear to be in line with the Convention. The Committee understands that the remarks of both trade unions were based on a 2009 draft project of the Labour Code, which might have been modified since, and that the 1971 Labour Code of Ukraine, as amended, is still in effect. The Committee trusts that the Government will be mindful of each of the provisions of the Convention, in order to ensure their full and effective application, when reviewing its Labour Code. It also invites the Government to provide a report containing relevant information on the application of the Convention if modifications to the current termination of employment legislation were to occur before 2016 when its next report is normally due. The Committee also invites the Government to provide in its next report information on the manner in which the Convention is applied in practice, including examples of collective agreements and court decisions dealing with grounds for termination, consultations with workers’ representatives in case of terminations for reasons of economic, technological, structural or similar nature (Article 13(1) of the Convention) and available statistics on the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided (Part V of the report form).

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Application of the provisions of the Convention in practice. The Committee notes the Government’s detailed report received in November 2006, which includes information on the procedures for termination of employment and available mechanisms for appeal, as provided for under the Ukrainian Labour Code. Please continue to provide general information on the manner in which the Convention is applied in practice, including examples of recent collective agreements and court decisions dealing with grounds for termination, consultations with workers’ representatives in case of terminations for reasons of an economic, technological, structural or similar nature (Article 13, paragraph 1, of the Convention) and available statistics on the number of appeals against unjustified termination, the outcome of such appeals, the nature of the remedy awarded and the average time taken for an appeal to be decided (Part V of the report form).

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information contained in the Government’s report, particularly in response to the previous comments pertaining to Article 2, paragraph 2(c), Article 10 and Article 12, paragraph 1(a).

Article 13 of the Convention.  Please supply in the next report examples of redundancy procedures contained in collective agreements.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the useful explanations provided by the Government in response to its request. It requests the Government to provide further explanation in its next report concerning the following points.

Article 2, paragraph 2(c), of the Convention. The Committee is given to understand that, pursuant to this provision, seasonal workers or temporary workers are excluded only from the application of provisions of Article 6 and Articles 13 and 14 of the Convention. Please indicate whether this is the case.

Article 2, paragraphs 4 to 6. The Committee notes the Government's confirmation that no category of employed persons is excluded from the application of the Convention under these provisions.

Article 6. The Committee notes that the protection provided under paragraph 1 of this Article is restricted, pursuant to paragraph 2, to a period of four months.

Article 10. Please provide examples of court decisions enforcing the reinstatement of the worker or the payment of compensation.

Article 11. Please indicate whether a notice period is compulsory in the event of dismissal for reasons of misconduct established under section 40 of the Labour Code. Please also indicate whether a reasonable period of notice is applied in other cases of dismissal relating to the conduct or the work of the worker.

Article 12, paragraph 1. Please indicate the measures adopted or envisaged in order to ensure that the amount of severance allowance is based, inter alia, on the length of service of the dismissed worker.

Article 13. Please provide examples of the clauses of the collective agreements which lay down the procedures to follow to ensure the consultation of workers' representatives in the event of dismissal for economic, structural or similar reasons.

Points IV and V of the report form. Whilst noting with interest the legal provisions which give effect to the Convention, the Committee considers that it does not have sufficient information to fully assess the practical application of the Convention. The Committee again requests the Government to provide examples of court decisions relating to dismissal. Please also provide any available statistical data on the appeals against termination of employment and the outcome of such appeals. The Committee again requests the Government to provide any available statistical data in respect of the number of terminations for economic or similar reasons. Finally, the Committee would be grateful if the Government would provide any general comment it may deem useful in respect of the manner in which the Convention is applied, in particular in the current context of enterprise restructuring, indicating any practical difficulties encountered in the implementation of the Convention.

Direct Request (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes with interest the first report on the application of the Convention. It also notes a communication from the Dniepropetrovsky Regional Trade Union of Workers of Scientific and Industrial Establishments regarding application of the Convention, a copy of which has been transmitted to the Government for its comments. In order to allow it to ascertain better the effect given to the Convention, the Committee would be grateful if the Government would supply in its second report further information on the following points.

Article 2, paragraph 2, of the Convention. The Committee notes that the Government refers in its report to the special provisions applicable to temporary and seasonal workers. Please indicate whether these categories of workers are excluded from the scope of all or some of the provisions of the Convention.

Article 2, paragraphs 4 to 6. The Committee notes that the report also refers to the existence of special provisions applicable to members of cooperatives, to workers in collective agricultural enterprises, private or state farms, and enterprises with foreign capital. Please indicate whether these provisions ensure application of the Convention to these categories of workers or if they are excluded from its scope. If some of these categories are excluded, please indicate the reasons for exclusion and whether the organizations of workers and employers concerned have been consulted. Please describe the special regime, if any, ensuring that these categories of workers have protection at least equivalent to that offered by the Convention. Please indicate also whether the Convention is applicable to civil servants and, if not, describe the special scheme which provides them with at least equivalent protection. The Committee recalls in this connection that the Government is required in its first report to indicate the categories to which exclusion applies and in its later reports to describe the legislation and practice in regard to such categories.

Article 6. The Committee notes that temporary absence from work because of illness or injury does not constitute a valid reason for termination, but that, according to the Government, the worker may be dismissed in the interests of the enterprise if, in the meantime, during his absence, he has been replaced or his tasks have been redistributed amongst other workers. Please indicate the measures taken or envisaged in order to guarantee the maintenance of his job for a worker who is absent from work temporarily because of illness or injury.

Article 10. The Committee notes that reinstatement of the worker is the normal means of compensation in the event of unjustified termination. Please provide information to the Committee as to the number of cases where reinstatement has been ordered and cases where, instead of reinstatement, compensation has been directed to be paid.

Article 11. Please indicate whether a reasonable period of notice is applicable in the case of termination linked with the employee's conduct or work. Please indicate the reasons for termination, if any, linked to the employee's conduct or work, when giving such notice is not compulsory.

Article 12, paragraph 1. Please indicate whether the amount of the severance allowance depends on the length of service of the worker whose employment has been terminated.

Article 13. Please specify the nature of the information which must be supplied to the workers' representatives concerned as well as the procedures and purposes of consultation with them when terminations for economic, technological, structural or similar reasons are envisaged, and state under what provision of law this requirement is to be complied with.

Article 14. Please indicate whether under the national law a written statement of the reasons for termination is required to be given to the employment service when the terminations are contemplated for reasons of an economic, technological, structural or similar nature.

Part IV of the report form. Please attach to the report examples of court decisions relating to termination of employment.