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Аспекты трудовых отношений иностранцев
More recently enterprises, which make use of employment of foreign specialists, are having increasingly arising questions regarding peculiarities of regulation of labor relations of foreigners who perform their work liabilities in the territory of Ukraine. Summarizing all the answers, we would like to pay your attention to the following.
In compliance with the Article 52 of Law of Ukraine On International Private Law, Law of the State, where the work is performed, is applied to the labor relations, unless otherwise stipulated by Law or International Treaty of Ukraine.
Regarding international Contracts, Ukraine separately concluded relevant Contracts namely with Russian Federation, Moldova, Armenia, Belarus, according to which foreigners’ employment in the territory of Ukraine is regulated by the legislation of Ukraine. Regarding EU, Contract on Partnership and Cooperation between European Communities and Ukraine provides Ukraine with opportunity to apply their Laws and Regulations regarding employment and labor conditions of natural persons (Article 42).
Thus, employment in the territory of Ukraine is governed by foreigners’ legislation. It means that a number of provisions typical for Employment Contracts, concluded under the rules of foreign countries, can not be applicable in Ukraine. There are disputes, which often lead to conflict situations. In order to avoid such conflicts, let’s consider the basic most relevant provisions (by the way, they are also related to local employees).
1. Contract form. Contract is concluded only in case the foreigner belongs to the category of employees, who according to legislation of Ukraine, can work under Contract. These categories include Heads of Enterprises and Cooperatives, representatives of Commodity Exchange, teachers and representatives of creative professions, etc.
2. Term of Contract. If foreigner himself does not insist on particular contract term, the limit of its term must be properly motivated: execution of particular project, temporary absence of another employee (illness, child treatment) etc.
3. Remuneration. Payment is performed in local Ukrainian currency only - the Hryvnia - exclusive currency of Ukraine. As for various bonuses and significant dismissal benefits, it is approved in accordance with requirements of Labor Code and Tax Code of Ukraine.
4. Social guarantees. Besides some exceptions related to particular type of work or position, foreigners have the same rights as citizens of Ukraine, namely regarding holidays, compensations and benefits.
5. Responsibility. It is impossible to dismiss on other grounds, except those stipulated by Articles of Labor Code, as well as to impose any financial liability on foreigner in the amount larger than established in Labor Code.
We remind that violation of aforementioned provisions can be a reason to consider foreigner’s labor conditions as invalid, in accordance with Article 9 of Labor Code, that impair his position comparing with Legislation of Ukraine.
About exceptions. According to Article 54 of Law of Ukraine On International Private Law, employment relations of foreigners and persons without citizenship, who work in Ukraine are not regulated by Law of Ukraine in case foreigners and persons without citizenship out of Ukraine concluded with foreign employers Employment Contracts on work execution in Ukraine, unless otherwise stipulated by contracts or international agreement of Ukraine.
It is referred to Heads of Enterprises founded by foreign legal and physical entities, Chairmen and Members of Representative Offices of Foreign Economic Entities. In compliance with Article 21 of Labor Code, Employment Contract is an agreement between employee and owner of enterprise, but not between employee and enterprise, although enterprise acts as financially liable object. Aforementioned entities conclude Contracts abroad in compliance with familiar and understandable for them legislation. However, Article 54 of mentioned Law provides foreigners with opportunity to choose the legislation of Ukraine as a regulator, in case they decide it protects them better than local one.