Employment contract with non-fixing working hour: peculiarities of working time
Authors: Svichkarova Yaroslava 
Published: October 2021

Problem setting. On-call work is today a poorly-investigated by science of labor law form of non-standard employment. Since 2019, there are several draft laws developed in Ukraine that deal with on-call work. These drafts describe it such as employment contract with non-fixing working hour. The latest draft No. 5161 of 25.02.2021 "On Amendments to Certain Legislative Acts of Ukraine on the regulation of some non-standard forms of employment" has been submitted to Parliament. This bill was developed according to the Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union. However, we believe some provisions of this bill on the establishment of working time need further adaptation.

Analysis of resent researches and publications. The issue of legal regulation of non-standard employment has been analysed by V.Venedidikov, N. Vyshnevska, I. Gorgoriev, I. Kiselev, A. Lushnikov, D. Morozov, O. Mozna, N. Nikitina, O. Process, O. Rimkevich, V. Soyfer, M. Sorokishin, O. Yaroshenko. On-call work was the subject of doctor’s and candidate’s thesis of V. Gnidenko, O. Korkin, O.Pilipko, M. Shabanova. At the same time a number of legal problems were arised after the project No. 5161 had been adopted. For instance, peculiarities of the establishment of working time, the legal regulation of new legal categories in an employment contract with non-fixed working time need further adaptation.

Аrticle’s main body. In the employment contract with non-fixing working hour the maximum working hours of the employee is determined, fixed in the contract, however the minimum working time is not defined due to the fact that the employer does not have a duty to provide employee work. The minimum duration of working time defined in the draft law depends only on the amount of the wage or compensation for staying in a state of waiting. In order to strengthen the coherence of terminology and better reconcile the typology and character of this non-standard employment form with the provisions of Directive (EU) 2019/1152, the draft law should enter and (or) determine the terms, such as a schedule of work, basic hours and days, mode of operation.

Conclusions and prospects for the development. In the contract with non-fixed working hours, the installation and distribution of working time has specific features: maximum duration of the employee's working time is determined, fixed in the contract, and the minimum working time is not determined at all, since the employer does not have a duty in the employer to provide employee work. The minimum duration of working time defined in the draft law depends only on the amount of the wage or compensation for staying in a state of waiting. In such an employment contract basic days and hours should be establishes, that is, a time interval when an employee must perform its labor duties in case of a demand. The employee's calling on work, in turn, must be carried out by the employer in compliance with the conditions established in the contract itself (for example, the method and minimum term of the employee's notice of the start of work). The mode of operation is predictive to the employee, the one can predict "theoretically" that he can be called on in certain days and hours. The schedule of work with each call on work is really unpredictable. This schedule should be agreed between the employee and the employer before the work is started, although we believe such agree does not matter because the schedule is made within the basic days and hours that are already known to the employee.