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Forty-Hour Week Convention, 1935 (No. 47) - Ukraine (RATIFICATION: 1956)

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The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

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Article 1 of the Convention. The principle of the 40-hour week. The Committee notes the Government’s reference to a finalized version of the new draft Labour Code. As this text has not been made available to the Office, the Committee is not in a position to assess the compatibility of its provisions with the principle of the 40-hour week laid down in the Convention. The Committee hopes that in considering flexible working time arrangements, the Government will ensure that the new draft Labour Code does not authorize practices that would possibly lead to unreasonably long hours of work and would thus directly contradict the principle of progressive reduction of hours of work. The Committee recalls, in this respect, Paragraph 12 of the Reduction of Hours of Work Recommendation, 1962 (No. 116) which indicates that averaging should be permitted only when special conditions in certain branches of activity or technical needs justify it. It also recalls paragraph 79 of its General Survey of 1984 on working time in which it pointed out that undue facilitation of overtime, for example, by not limiting the circumstances in which it may be permitted or by allowing relatively high maximums could, in the most egregious cases, tend to defeat the Recommendation’s objective of a social standard of a 40-hour week and make irrelevant the provisions as to normal working hours. The Committee requests the Government to keep the Office informed of any new developments in the process of adopting the new Labour Code, and to transmit a copy once it has been adopted.

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Article 1 of the Convention. The principle of the 40-hour week. The Committee recalls its previous comment, in which it noted the comments of National Forum of Trade Unions of Ukraine (NFTUU) and the Confederation of Free Trade Unions of Ukraine (KVPU), dated 8 July 2010, concerning the provisions on hours of work contained in the draft new Labour Code, which is expected to replace the existing Labour Code of 1971. The Committee notes the new comments of the KVPU dated 5 July 2012, according to which section 143 of the draft new Labour Code practically allows for unlimited daily and weekly working hours. The KVPU also indicates that the provision in question authorizes the averaging of hours of work setting the maximum duration of work at 12 hours a day and 48 hours a week which contravenes this Convention. In its reply, the Government indicates that section 143 of the draft Labour Code authorizes the averaging of hours of work, provided that hours of work do not exceed on the average the normal limits of eight hours a day and 40 hours a week. The Government also indicates that a similar provision is to be found in section 61 of the Labour Code currently in force. The Committee observes, however, that the draft legislation does not appear to specify a maximum reference period for the purposes of averaging and also that the maximum duration of daily work fixed at 12 hours may be exceeded based on the worker’s consent. The Committee further notes that whereas the existing Labour Code requires an agreement with representative workers’ organizations at the enterprise level before the introduction of an averaging arrangement, the draft Labour Code does not contain analogous safeguards. The Committee once again refers to paragraphs 12 and 14 of the Reduction of Hours of Work Recommendation, 1962 (No. 116), which indicate that the principle of the 40-hour week should not be defeated by undue recourse to averaging or broad derogation possibilities. The Committee accordingly requests the Government to provide additional explanations on the conditions under which and the limits within which the averaging of hours of work and overtime work may be authorized under the draft new Labour Code in the light of the recognized principle of the 40-hour week. It also requests the Government to keep the Office informed of any new developments in the process of adoption of the new Labour Code, especially as regards the provisions on hours of work.

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Article 1 of the Convention. Forty-hour week. 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) concerning a new draft Labour Code which is expected to be examined shortly by the Parliament of Ukraine. The two workers’ organizations allege that draft section 143 of the Code allows the settings of unlimited daily and weekly working hours. They also point out that the maximum duration of weekly work may exceed the 48-hour limit not only on the basis of an enterprise-level collective agreement but also by means of an employer’s regulatory act. Under the new provisions, therefore, the employers would have every interest not to have trade unions at the enterprise, so that they can decide unilaterally on matters such as working hours and wages through regulatory acts. The Committee requests the Government to provide any comments it may wish to make in response to the observations of the NFTUU and the KVPU and recalls that the Government may avail itself of the advisory services of the Office concerning the drafting of new legislation having due regard to relevant international labour standards.

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Article 1 of the Convention. Forty-hour week. Averaging of the hours of work. The Committee notes that, while section 50 of the Labour Code limits the normal hours of work to 40 hours per week, section 61 of the Labour Code allows employers, after consulting the trade union representatives, to calculate hours of work as an average in enterprises operating continuously, as well as in certain establishments and for certain types of work, where it is not possible, due to exceptional circumstances, to respect the normal daily or weekly limits on hours of work. It notes that, in such cases, the average weekly hours of work during the chosen reference period may not exceed 40 hours. The Committee notes, however, that the Labour Code establishes no absolute limit on the daily or weekly hours of work in the context of such working time arrangements and that it does not lay down a maximum duration with regard to the reference period (for example, three months). It draws the Government’s attention to the negative effects that an excessively long working day or working week can have on the health of workers and on the balance between their private life and work. In this regard, it refers to the provisions of the Reduction of Hours of Work Recommendation, 1962 (No. 116), which is designed to supplement and facilitate the application of the Convention and which provides, in Paragraph 12(2) that the competent national authorities should fix the maximum length of the period over which the hours of work may be averaged. Noting that the provisions of the Labour Code are too vague on this point, the Committee requests the Government to provide detailed information on the working time arrangements established under section 61 of the Labour Code, including details on the number of workers and the type of enterprises concerned. The Government is also requested to indicate the measures taken or envisaged to limit the weekly and daily hours of work, as well as the reference period, in the context of such arrangements.

Part V of the report form. Application in practice. The Committee notes the information included in the Government’s report that in 2007, the labour inspection services carried out 44,644 inspections in 34,166 establishments. It notes that these inspections resulted in 158,754 violations of the labour legislation being reported, of which 26,618 concerned issues relating to working time. Taking into account the high number of reported violations of the labour legislation, in particular with regard to working time, the Committee requests the Government to provide detailed information in its next report on the results of the activities of the labour inspectorate, in particular with regard to measures taken to reduce the number of violations of the provisions of the Labour Code with regard to hours of work. The Government is also requested to provide information on the categories and number of workers to whom the principle of the 40-hour week has been applied and the number of hours of overtime worked by these workers beyond the 40-hour week; the categories and number of workers to whom the principle of the 40-hour week has not yet been applied and the normal hours of work of these workers, as well as the number of hours of overtime worked; copies of studies or official reports on issues relating to working time, especially the reduction of hours of work linked to new technologies or as an employment policy tool, particularly in the context of the current global economic crisis; and finally, information on the working time arrangements provided for under recent collective agreements.