Нові підходи до правового регулювання та організації праці в Україні

The current development of the world economy, modern international social and labour standards and new challenges currently facing humanity require constant improvement of national legislation. Ukraine, as a part of the international community, does not stand aside from these processes, and therefore must reform its own legislation. The need for qualitative changes in national legislation both in the labour and social spheres, in particular in the medical spheres, has been repeatedly addressed in the studies of Ukrainian legal scientists in the field of labour [8-16]. Taking into account the COVID-19 coronavirus pandemic, the national legislator urgently introduced changes to the relevant regulations, in particular to the Labour Code of Ukraine regarding the introduction of remote work. Over time, a need arose to change the introduced standards. The Draft Law No. 4051, designed to amend certain articles of the Labour Code of Ukraine and supplement it with Articles 60-1 and 60-2.

In particular, it is proposed to make "cosmetic" changes to Paragraph 6-1 of Part 1 Article 24 of the Labour Code of Ukraine, which was included in this article in March 2020. This paragraph includes the conclusion of an employment contract for remote (home) work in the list of cases when compliance with the written form of concluding an employment contract is mandatory. The authors of the study believe that all employment contracts should be concluded in writing from the moment of publishing Part 3 Article 24 of the Labour Code of Ukraine in 2014 in the following wording: "an employee may not be allowed to work without entering into an employment contract issued by an order or instruction of the owner or an authorised body, and notifying the central executive authority on ensuring the development and implementation of the national policy on the administration of a unified contribution to mandatory state social insurance on hiring an employee in accordance with the procedure established by the Cabinet of Ministers of Ukraine"¹. In this regard, the introduction of the above-mentioned amendments to Part 1 Article 24 of the Labour Code of Ukraine is superfluous. Part 1 Article 24 of the Labour Code of Ukraine should be worded as follows: "an employment contract shall be concluded in writing." The amendments made by the Draft Law No. 4051 to Article 29 of the Labour Code of Ukraine are not entirely correct. Firstly, such changes remove persons who have entered into an employment contract for remote work from the scope of Part 1 Article 29 of the Code, which makes provision for the employer's obligation to perform certain introductory actions in relation to the employee, in particular, to explain to the employee his or her rights and obligations and inform them against receipt about working conditions. Secondly, Article 29 of the Labour Code of Ukraine is supplemented by Part 2, which makes provision that upon entering into an employment contract for remote work, the employer must ensure compliance with Paragraph 2 of Part 1 of this article (familiarise the employee with the internal labour regulations and the collective agreement), as well as familiarise the employee with the requirements for labour protection upon working with equipment and means recommended or provided by the employer. Thus, according to the logic of the authors of the Draft Law No. 4051, employees who will work remotely do not need to know their rights, obligations, and working conditions, but at the same time they should know the internal labour regulations. The latter comes into conflict with the provision of Part 4 Article 60-2 of the Labour Code of Ukraine proposed by the authors of the Draft Law No. 4051 as follows: "when working remotely, employees allocate working hours at their discretion, they are not subject to internal labour regulations, unless otherwise provided in the employment contract"Law of Ukraine No. 77-V1II "On Amendments to Certain Legislative Acts of Ukraine Concerning the Reform of Compulsory State Social Insurance and Legalisation of the Remuneration Fund". (2014, December). Retrieved from https://zakon.rada.gov.ua/laws/ show/77-19#n615. ^{Draft Law of Ukraine No. 4051} "On Amendments to Certain Legislative Acts Concerning the Improvement of the Legal Regulation of Remote Work". (2020, September). Retrieved from https://w1.cLrada.gov.ua/pls/zweb2/webproc4_Upf351U69838..

Notably, in the Labour Code of Ukraine, the provisions defining the features of remote and home work are currently stipulated in Article 60 "Flexible working hours". As mentioned above, the relevant provisions were introduced in Article 60 of the Labour Code of Ukraine in March 2020. Thus, the national legislator, having presented this Article in a new wording, in turn failed to reflect its content in its title, which, first and foremost, complicated the search for relevant statutory material. The authors of this study believe that the title of the article would be more correct to state as follows: "Flexible working hours and remote (home) work". Separately, it should be noted that prior to the above-mentioned amendments, Article 60 of the Labour Code of Ukraine was called "Division of the working day into parts" and regulated the corresponding working hours. As noted in the legal literature, the division of working hours into parts is a mode of working hours where the working day can be divided into parts within the limits defined by law. In particular, the working day with the division of shifts into two parts is established for drivers and conductors of buses, trolleybuses, trams operating on urban regular passenger lines [17]. The regime with the division of the working day into parts is applied at work with special conditions and the nature of work in accordance with the procedure and cases stipulated by legislation. The working day under this regime can be divided into parts, provided that the total duration of work does not exceed the established working day (Article 60 of the Labour Code of Ukraine). Such regime is usually introduced in industries where the amount of work is unevenly distributed throughout the day (for example, public transport drivers). The division of the working day into parts, first and foremost, implies the possibility of establishing a break in work for more than two hours, which the labour legislation provides for recreation and nutrition purposes [18]. Consequently, the national legislator, having provided for the regulation of such a working time regime as flexible working hours in Article 60 of the Labour Code of Ukraine, abolished the rather popular working time regime - the division of the working day into parts.

Today, the national legislator does not separate the provisions regulating remote and home work in Article 60 of the Labour Code of Ukraine, using the terminological construction "remote (home) work". The Draft Law No. 4051 proposes to supplement the Labour Code of Ukraine with two articles: Article 60-1 "Home work" and Article 60-2 "Remote work", as well as to amend Article 60 "Flexible working hours", removing the provisions on remote and home work from it. This means that the authors of Draft Law No. 4051 are trying to introduce a different approach to the categories of remote and home work as independent ones. The latter is also evidenced by the use of differing definitions of the terms "home work" and "remote work". Thus, the Draft Law No. 4051 stipulates the following provision of Part 1 of Article 60-1 of the Labour Code of Ukraine: "home work" is a form of labour organisation when paid work is performed by an employee at his or her place of residence or in other premises previously chosen by them, which are described by the presence of a designated zone, technical means (main production and non-production funds, tools, devices, inventory) or their totality, necessary for the production of products, provision of services, performance of works or functions stipulated in the constituent documents, but outside the production or working premises of the owner of the enterprise, institution, organisation, or authorised body. According to Part 1 of Article 60-2 of the Labour Code of Ukraine, remote work is a form of organising labour relations between an employee and an employer and/or performing work, when work is performed by an employee outside the employer's premises in any place of their choice and using information and communication technologies¹.

Comparing the above definitions, one should note such a common feature as the performance of work by an employee outside the employer's premises. In case of home work, it is only specified that such work is usually performed by the employee at his or her place of residence or in other pre-selected premises that are appropriately equipped and adapted to work. The authors of the Draft Law No. 4051 use different terminology in these definitions for no particular reason. Firstly, the Labour Code of Ukraine currently uses the term "owner or authorised body", the Draft Law No. 4051 proposes to use the term "employer" in Part 1 Article 60-2 of the Code, and "owner of an enterprise, institution, organisation, or authorised body" in Part 1 Article 60-1 of the Code. The authors of this study believe that if the Labour Code of Ukraine uses the term "owner or authorised body", then this term should be contained in the provisions that are proposed to be included in it. Secondly, home work is defined as a form of labour organisation, and remote work is defined as a form of organising labour relations. As is known, the terms "labour" and "labour relations" are independent and mean different phenomena. Given the relationship between remote and home work, which follows from the above concepts, it appears appropriate in this case to apply a unified terminology, or to justify why such a difference is proposed. Thirdly, the phrase "paid work" is used for home work, and "work" is used for remote work. This also points to the need to apply a unified terminology, since both types of work are paid.

There is a certain question regarding the placement of provisions on remote and home work in the Labour Code of Ukraine in the structural part covering such working conditions as working hours (Article 60 "Flexible working hours" of Chapter IV "Working hours"Draft Law of Ukraine No. 4051 "On Amendments to Certain Legislative Acts Concerning the Improvement of the Legal Regulation of Remote Work". (2020, September). Retrieved from https://w1xLrada.gov.ua/pls/zweb2/webproc4_Upf351U69838. ^{Labour Code of Ukraine. (1971, December). Retrieved from} https://zakon.rada.gov.Ua/laws/show/322-08#Text.). The Draft Law No. 4051 retains the specified placement - Article 60-1 "Home work" and Article 60-2 "Remote work" are placed in Chapter IV "Working hours"Draft Law of Ukraine No. 4051 "On Amendments to Certain Legislative Acts Concerning the Improvement of the Legal Regulation of Remote Work", op. cit.. Notably, a similar situation is observed in the draft versions of the Labour Code of Ukraine, which in recent years have been registered with the Verkhovna Rada of Ukraine. Thus, in Draft No. 1658 of December 27, 2014 places Article 43 "Condition for home work" in Chapter 1 "Labour relations and employment contract" of the Book Two "Emergence and termination of Labour Relations. Employment contract"; the relevant provisions are also contained in Article 137 "Employees who independently plan their working hours" of Paragraph 2 "Working hours" of Chapter 2 "Working hours" of the Book Three "Labour conditions"Draft Labour Code of Ukraine No. 1658. (2014, December). Retrieved from https://w1.c1.rada.gov.ua/pls/zweb2/ webproc4_1?pf3511=53221.. In Draft No. 1658, prepared for the second reading on July 24, 2017, the relevant provisions are contained in Article 32 "Content of the employment contract" and Article 42 "Condition for working at home" of Chapter 1 "Labour relations and employment contrac" of the Book Two "Emergence and termination of labour relations. Employment contract"; the relevant provisions are also contained in Article 149 "Employees who independently plan their working hours" of Paragraph 2 "Working hours" of Chapter 2 "Working hours" of the Book Three "Labour conditions"Draft Labor Code of Ukraine No. 1658, prepared for the second reading. (2017, July). Retrieved from https://w1.c1.rada.gov.ua/pls/ zweb2/webproc34?id=&pf3511=53221&pf35401=431270.. In Draft No. 2410 of November 08, 2019, the relevant provisions are contained in Article 32 "Content of the employment contract" and Article 42 "Remote (home) work" of Chapter 1 "Labour relations and employment contract" of Book Two "Emergence and termination of labour relations. Employment contract"; the relevant provisions are also contained in Article 149 "Employees who independently plan their working hours" of Paragraph 2 "Working hours" of Chapter 2 "Working hours" of the Book Three "Labour conditions"Draft Labour Code of Ukraine No. 2410. (2019, November). Retrieved from https://w1.c1.rada.gov.ua/pls/zweb2/ webproc4_1?pf3511=67331.

The legal literature on labour law contains a somewhat different understanding of the place and essence of remote and home work. Thus, the vast majority of labour scientists do not refer remote and home work to working hours [17-23]. O.M. Yaroshenko and N.B. Bolotina distinguish the employment contract for home work as one of the types of employment contracts [21; 22]. The latter position is facilitated by the provisions of the Resolution of the State Committee of Labour of the USSR and the Secretariat of the All-Union Central Committee No. 275/17-99 "OnApproval of the Regulations on Working Conditions of Homeworkers" of September 29, 1981, according to which homeworkers are considered persons who have entered into an employment contract with an enterprise to perform work at home by personal labour from materials and using tools and means of labour allocated by the enterprise, or purchased at the expense of this enterprise¹. Home Work Convention of the International Labor Organization (No. 177) of 20 June 1996Resolution of the State Committee of Labour of the USSR and the Secretariat of the All-Union Central Committee No. 275/17-99 "On Approval of the Regulations on Working Conditions of Homeworkers". (1981, September). Retrieved from https://zakon.rada.gov.ua/ laws/show/v0275400-81#Text. ^{Home Work Convention of the International Labor Organization (No. 177). (1996, June). Retrieved from} https://zakon.rada.gov.ua/ laws/show/993_327#Text. lists homeworkers as a separate category of employees. Thus, under Article 1 of Convention No. 177, the term "home work" means work that a person called a homeworker performs at his or her place of residence or in other premises of their choice, but not in the employer's production premises; for remuneration; for the purpose of producing goods or services, as directed by the employer, regardless of who provides the equipment, materials, or other resources used, unless that person has such a degree of autonomy and economic independence at his or her disposal as is necessary to be considered an independent employee under national legislation or court decisions. Persons with the status of employees do not become homeworkers within the meaning of this convention because of the very fact that they perform work from time to time as employees at home, and not at their usual workplaceIbidem, 1996..

In labour law, working hours are understood as: the procedure for distributing working hours within a certain calendar period (day, week, etc.) in order to ensure the proper labour process and rest of employees [18]; distribution of working hours within a day or other calendar period [19]; distribution of working hours within a day or other calendar period, the beginning and end of daily work (shift), the beginning and end of a break for rest and food [23]. Taking into account the essence of the category "working hours" and the content of the provisions of the Howe Work Convention of the International Labor Organization No. 177 of June 20, 1996Home Work Convention of the International Labor Organization (No. 177). (1996, June). Retrieved from https://zakon.rada.gov.ua/ laws/show/993_327#Text. and the Resolution of the State Committee of Labour of the USSR and the Secretariat of the All-Union Central Committee No. 275/17-99 "On Approval of the Regulations on Working Conditions of Homeworkers" of September 29, 1981Resolution of the State Committee of Labour of the USSR and the Secretariat of the All-Union Central Committee No. 275/17-99 "On Approval of the Regulations on Working Conditions of Homeworkers". (1981, September). Retrieved from https://zakon.rada.gov.ua/ laws/show/v0275400-81#Text., remote and home work cannot be considered working hours. Employees engaged in remote and home-based work should be considered specific categories of employees whose labour relations have certain features and require appropriate legal regulation.

The authors of the Draft Law No. 4051 propose to consolidate such difference between home and remote work as the freedom to change the workplace in Parts 3 and 4 of Article 60-1 and Part 3 Article 60-2 of the Labour Code of Ukraine. Thus, when performing home work, the employee's workplace is fixed and cannot be changed at the employee's initiative without the consent of the employer. If it is impossible to perform work at a fixed workplace for reasons beyond the employee's control, the employee has the right to change the workplace. When performing remote work, the employee independently chooses their designated workplaceDraft Law of Ukraine No. 4051 "On Amendments to Certain Legislative Acts Concerning the Improvement of the Legal Regulation of Remote Work". (2020, September). Retrieved from https://w1.c1.rada.gov.ua/pls/zweb2/webproc4_Upf351U69838. One should note the dubious expediency of introducing this condition for home work, which is not stipulated by Home Work Convention of the International Labor Organization No. 177 of June 20, 1996, as well as the difficulty for the employer to monitor its compliance.

The Draft Law No. 4051 proposes to consolidate the differences in establishing labour regulations for remote and home work in Part 5 Article 60-1 and Part 4 Article 60-2 of the Labour Code of Ukraine. Thus, when working at home, employees are subject to the general working hours of the enterprise, institution and organisation, unless otherwise stipulated in the employment contract. When working remotely, employees allocate working hours at their personal discretion, and they are not subject to internal labour regulations, unless otherwise stipulated in the employment contractIbidem, 2020.. The authors of this study consider the provision on extending the general mode of operation of the enterprise to homeworkers doubtful: firstly, home work requires more freedom due to the specifics of the place of performance; secondly, compliance with this provision would be difficult to control; and thirdly, such a provision is not contained either in the Home Work Convention of the International Labor Organization No. 177 of June 20, 1996, or the provision on working conditions of homeworkers, approved by the Resolution of the State Committee of Labour of the USSR and the Secretariat of the All-Union Central Committee No. 275/17-99 "On Approval of the Regulations on Working Conditions of Homeworkers" of September 29, 1981, fourthly, Article 60 of the Labor Code of Ukraine currently stipulates that both remote and home work employees allocate working hours at their discretion, and they are not subject to internal labour regulations.

It is proposed to supplement Part 6 Article 60-1 of the Labour Code of Ukraine with a provision that the performance of home does not entail changes in rationing, remuneration, and does not affect the scope of labour rights of employees⁷.

The authors of this study believe that the corresponding provision should be stipulated in Article 60-2 of the Labour Code of Ukraine regarding remote work. An analysis of Parts 7 and 8 of Article 60-2 of the Labour Code of Ukraine proposed by Draft Law No. 4051 indicates that certain provisions are established for remote work, which are not stipulated for home work in Article 60-1 of the Labour Code of Ukraine. This is the stay of an employee who performs remote work via information and telecommunications with the employer, and the latter's obligation to provide the employee with means of work related to information and communication technologies that they use. In turn, Parts 7, 9, 11 and 12 of Article 60-1 of the Labour Code of Ukraine stipulate such provisions regarding home work, which are not included in Article 60-2 of the Labour Code of Ukraine. It is the duty of the employer:

1) to provide the employee with the means of production, materials, and tools necessary for performing home work;

2) to keep records of employees who carry out home work;

3) to allow home work only for those persons who have the necessary housing and living conditions, as well as practical skills or can be trained in these skills to perform certain work;

4) to examine the housing and living conditions of home workers with the participation of a trade union body, and in appropriate cases - with the participation of representatives of sanitary and fire supervision.

The above, along with the definitions of "remote work" and "home work", indicates that the authors of the Draft Law No. 4051 interpret remote work mainly as a mental activity related to the provision of information services, the creation of software products, the collection and generalisation of information, etc., which is performed mainly with the help of computer equipment, telecommunications systems, and transmitted to the employer by information and telecommunications means. In their understanding, home work is manifested in the manufacture of products, provision of services, performance of work using a variety of equipment, tools, devices, etc.

In the scientific literature, it is noted that from the beginning, home work as a form of employment was focused mainly on pensioners, housewives, disabled people, and people engaged in folk crafts [24]. This is also confirmed by the content of the provisions of the regulation on working conditions for homeworkers, approved by Resolution of the State Committee of Labour of the USSR and the Secretariat of the All-Union Central Committee No. 275/17-99 "On Approval of the Regulations on Working Conditions of Homeworkers" of September 29, 1981. As B.A. Rymar notes, the regulation on working conditions of homeworkers of 1981 regulates the work of so-called conventional homeworkers - persons of low qualifications who perform mainly simple, manual work at home [25].

Over time, the development of technology gave an impetus to the modification of conventional ways of organising labour, as well as differentiated the categories of employees whose work was carried out outside the employer's premises. New opportunities provided by telecommunications technologies in the organisation of the labour process introduced a new term into practice - "telework". In 1990, the International Labor Organization proposed a definition of telework based on two features: the existence of a distance from the conventional workplace and the use of communication technologies [26]. Teleworking is a form of labour where: a) work is performed from a place remote from the central office or production areas, thus separating the employee from personal contacts with colleagues; b) new technologies make this separation possible with the help of appropriate communications [27].

In 2002, at the level of the European Union, Social Partners concluded a framework agreement on teleworking between the European Commission and European associations of trade unions and employers, which established working conditions and guarantees of the rights of employees engaged in teleworking [28]. The legislation of developed countries of the world currently promotes the introduction of teleworking. Thus, in a number of US states, there is a law "On Clean Air", which provides significant tax benefits to enterprises that use teleworking, since their employees do not pollute the environment by coming to the office by car. In recent years, many large and medium-sized firms have displayed a tendency to decentralise management, when the firm is divided into several functionally independent divisions with their individual budgets, and a number of employees are transferred to work outside the main office. Such units can often use virtual or home offices. Especially characteristic is the growth of such offices for the United States, which has about half of all computing power on the planet. The rapid development and cheapness of telecommunications services, the availability of office equipment turn the housing of TV workers into a powerful and modern office. Many managers also periodically switch to teleworking mode and, for example, remotely manage their business during business trips or vacations [29].

Conventional home work on the manufacture of products, provision of services and performance of work by an employee at home on the appropriate equipment, with the help of tools, devices, etc. remains to this day and co-exists along with teleworking. In this regard, such home work and telework should be considered as varieties of remote work.

Thus, it is advisable to understand the remote work as the paid performance of labour duties by an employee as stipulated by law, including acts of social dialogue, local acts and an employment contract, outside the employer's premises in any place at the employee's choice, which does not entail any restrictions on the scope of his or her labour rights. It is precisely this approach to understanding remote work that should be provided for in a comprehensive regulation in the field of labour.

Conclusions