On 16 July 2021, the Order of the Ministry of Economy of Ukraine No. 913-21 dated 5 May 2021 "On Approving the Model Labour Agreements on Home-based and Remote Work", as registered with the Ministry of Justice on 6 July 2021 under No. 886/36508, came into effect.
The model labour agreements on home-based and remote work were drafted and approved pursuant to the requirements of Articles 60-1 and 60-2 of the Labour Code of Ukraine in the wording of the Law of Ukraine No. 1213-IX, which came into effect on 27 February 2021.
As a general rule, conclusion of agreements on home-based and remote work in writing is mandatory. However, during the COVID-19 quarantine (currently extended till 1 October 2021) such written form of the mentioned agreements is optional. Still written form of these agreements is recommended for regulating all necessary issues, including material liability, occupational safety, confidentiality, etc.
Comparison of model agreements on home-based and remote work
Workplace
The main difference between the model agreements on home-based and remote work is the definition of a workplace in each case. Home-based workplace is fixed, is to be located at the employee's home (as a rule) and cannot be changed by the employee without prior notice, while within the framework of the remote work the workplace is determined by the employee.
Also, remote employees additionally may combine their remote work with working in the premises or territory of the employer, as the employee's work may be performed using information and communication technologies almost from anywhere (as compared to the home-based workers who are mostly engaged into manual works).
Working hours
Home-based employees, as a rule, work under general working hours regime of the employer (unless otherwise provided by the agreement). However, any time spent by them to receive materials (raw stock) and deliver products is also included into the working hours.
As to the remote employees, they mostly define their working hours at their own discretion and may work under flexible working hours regime. Internal labour regulations do not apply to them, unless otherwise is provided by the written agreement. Another peculiarity of such work is the right to disconnect during specific hours without any risks of disciplinary penalty to be applied for not working at that time.
Equipment
Home-based employees are to be supplied by the employer, unless otherwise provided by the agreement. As to the remote employees, the procedure for providing equipment, software and hardware, information security tools and other means (if any) is to be determined by the written agreement.
If the employee uses his/her own tools for work, the employer pays compensation for their wear and tear (mandatory only in case of home-based work) or compensation for the use of equipment that is not the employer's property, other compensations related to the performance of work (if agreed).
Work (occupational) safety
Another key difference between home-based and remote work under model agreements is that the employer is responsible for ensuring safe and harmless working conditions of work for the home-based employees, while the remote employees are responsible for that themselves.
Anyway, in both cases the employer is responsible for the safety and proper technical condition of the equipment and means of production provided by the employer (if any). Also, the employer shall systematically instruct (train) the employees on occupational safety as well as fire safety to the extent that the employee use the equipment and tools recommended or provided by the employer.
Shift to the electronic documenting of the employment
The model agreements have rather progressive rules on familiarization of employees with the employer's documents – it is allowed to familiarize employees with them via means of electronic communication specified in the agreement (e.g., e-mail, phone number, mobile app).
Also, these agreements may be concluded either in paper, or in electronic form (in compliance with the requirements of the Laws of Ukraine "On Electronic Documents and Electronic Document Management" and "On Electronic Trust Services").
Recommendations
It is recommended bringing the current labour agreements containing provisions on home-based and remote work (if concluded before model agreements approval) in line with the new requirements – to avoid any risks related to validity of the respective rules.
In case home-based or remote work is determined for employees even after termination of the COVID-19 quarantine, it is recommended to execute respective agreements in writing on the basis of the relevant model labour agreement (this will be a mandatory requirement).
Further, it is recommended to add additional provisions, such as anti-corruption & business ethics, full material liability, confidentiality, occupational safety as well as other provisions, necessary for remote work arrangements.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
