Features of the transfer of the employee together with the enterprise to another location under the conditions of martial state

Abstract

The article is devoted to the peculiarities of the transfer of the employee together with the enterprise to another area in the conditions of martial law.

The author notes that in connection with the attack of the Russian Federation on February 24, 2022, on Ukraine, the government of our country introduced a program for the relocation of production facilities in order to preserve both the labor potential and production capacity. This program ensured the mass relocation of enterprises from the areas affected by hostilities to safer territories of Western Ukraine.

It is emphasized that during martial law, the specifics of changing the working conditions of employees of enterprises displaced (evacuated) due to martial law are regulated by the Law of Ukraine “On the Organization of Labor Relations in Martial Law.” According to it, restrictions on the constitutional rights and freedoms of a person and a citizen are introduced during the period of martial law in accordance with Articles 43 and 44 of the Constitution of Ukraine.

The author, having analyzed the current Ukrainian legislation, proposes three options for the possible legal behaviour of employees: 1) the employee agrees to transfer with the company to another location; 2) the employee does not agree to be transferred together with the enterprise to another location due to relocation and; 3) the employee cannot move to another location with the enterprise, but wishes to continue working there in the future, when the enterprise returns, if the law provides such an opportunity.

The article emphasizes that transfer to another location refers to cases where the location of the employee’s work changes in connection with the relocation of the enterprise to another settlement. Moving an enterprise to another settlement is considered a change in the organization of production and work. According to Ukrainian legislation, the employee must give written consent to it. It should be emphasized that such a transfer is carried out for the same specialty, qualification or position. Making an entry in the labor book about the transfer of employees to another area together with the enterprise is not provided for by law.

It is proposed to change the title of Article 120 of the Labor Code of Ukraine to “Guarantee and compensatory payments when moving to work in another area” and part 1 of Article 120 of the Labor Code of Ukraine should be amended as follows: “In connection with the transfer or assignment to another location, employees have the right to receive compensation and guarantee payments.”

It is emphasized that the suspension of the employment contract must comply with the following conditions: 1) the employer cannot provide the employee with a job; 2) the employee cannot perform work. If at least one of the conditions is not fulfilled, there are no grounds for suspending the employment contract.