Social guarantees for employees called up for military service: the right to maintain average earnings
Authors: Trunova Halyna 
Published: January 2025

Introduction. In connection with the large-scale armed aggression, Ukraine continues to mobilize persons liable for military service, the lion’s share of whom are employees under an employment contract. Until recently, employees called up for military service were supposed to retain their jobs, positions and average earnings. However, the provisions of subparagraph 17 of paragraph 1 of Section I of the Law of Ukraine «On Amendments to Certain Legislative Acts of Ukraine on Optimization of Labor Relations» No. 2352-IX dated July 1, 2022 amended part three of Article 119 of the Labor Code of Ukraine in terms of excluding the provision on the retention of average earnings by the employer for employees called up for military service. These legislative changes caused a negative response and led to appeals to the courts in search of justice.

The aim of the article is to study the issue of ensuring the rights of employees called up for military service in the form of salary retention and to formulate separate conclusions on this issue.

Results. The author examines the historical aspect of legal regulation of the issue of ensuring social rights of employees called up for military service in the context of part three of Article 119 of the Labor Code of Ukraine. The author determines that the need for additional social guarantees for employees called up for military service in the form of retention of their job, position and average earnings was due to the need to regulate the procedure for mobilization.

The author emphasizes that an employee who is called up for military service during mobilization retains an employment relationship with the employer but is released from his/her duties with appropriate guarantees. It is emphasized that the payment of financial support at the expense of the State Budget of Ukraine in accordance with the Law of Ukraine «On Social and Legal Protection of Servicemen and Members of Their Families» does not compensate for or replace the social guarantees provided for in part three of Article 119 of the Labor Code regarding the payment of average earnings. It is noted that the guarantee of retention of average earnings provided for in the previous version of part three of Article 119 of the Labor Code can be perceived as a component of the complex of social and legal protection guarantees established by law for employees called up for military service. At the same time, the abolition of this guarantee has led to a narrowing of the rights of employees called up for military service and contradicts certain provisions of the Constitution of Ukraine.

Conclusions. Taking into account the provisions of the Constitution of Ukraine, the position of the Constitutional Court of Ukraine, and the provisions of the current labor and military service legislation, it can be concluded that it is necessary to restore the right of employees called up for military service to maintain their average earnings as an integral part of a high-level social guarantee package for the relevant category of persons.

Key words: social guarantees, military personnel, employee, employment contract, place of work, position, average salary, Constitutional Court of Ukraine, mobilization, labor relations, military service.