LEGAL REGULATION OF THE DISTANT WORK UNDER THE LEGISLATION OF UKRAINE: PROBLEMATIC ASPECTS

Abstract

Purpose: to consider certain problematic aspects of legal regulation of the distant work and to find out the ways of overcoming them. The methodological basis of the study comprises methods of documentary analysis and synthesis, comparative analysis, cognitive and analytical method, as well as methods of systematization and generalization. Results: an author analyses the problematic aspects of legal regulation of the distant work under the legislation of Ukraine. Discussion: an author advocates the position that it is necessary to distinguish the distant work as a type of the labour agreement and the distant work as a temporary form of labour organization and to regulate them in separate articles of the effective Labour Code of Ukraine in order to facilitate the law enforcement practice.

For a long time, there was no legal regulation of the distant work in the labour legislation. Only in the conditions of the coronavirus pandemic spread, when the employers were forced to transfer the employees to the distant work regime, there was an urgent need for its regulation. But, the expediency of the proper legal regulation of the distant work cannot be limited only to the necessity of its implementation under special circumstances.

In the effective version of the Labour Code of Ukraine, the distant work is regulated by article 60-2 in the chapter «Working hours» which seems illogical. Distinguishing the distant work as a temporary form of labour organization, which is implemented under special circumstances by the employer’s order, and the distant work, which is performed on the basis of the labour agreement, the following should be taken into account. In the first case, such work is always temporary (for the period of special circumstances), it applies to the employees working on the basis of regular labour agreement and does not require the conclusion of an additional agreement to this labour agreement or the labour agreement on the distant work. But, at the same time, it is necessary to provide for the procedure and conditions for the temporary transfer of the employees to the distant work as a form of labour organization, which can be introduced under special circumstances. In the second case, the labour agreement is concluded precisely for the purpose of the permanent distant work. And a separate legal regulation should be devoted to such labour agreement.

It was concluded that the problematic aspects are the issue of labour discipline, the responsibility of the employee for the improper performance of his/her work duties under the distant work conditions.