25 April 2016, 15:09
CLARIFICATION
By the Verkhovna Rada of Ukraine Committee on State Building, Regional Policy and Local Self-Government concerning the application of certain provisions of the Law of Ukraine "On Civil Service" dated December 10, 2015 No. 889-VIII touching the procedure of registration of loss of civil servant status by certain categories of public employees in connection with the entry into force of this Law from May 1, 2016
(Pursuant to Section 1, Article 13 and Section 3, Article 21 of the Law of Ukraine "On Committees of the Verkhovna Rada of Ukraine")
The Verkhovna Rada of Ukraine Committee on State Building, Regional Policy and Local Self-Government considered the request of the National Agency of Ukraine on Civil Service to provide clarification on the application of certain provisions of the Law of Ukraine "On Civil Service" dated December 10, 2015 No. 889-VIII touching the procedure of registration of loss of civil servant status by certain categories of public employees in connection with the entry into force of this Law from May 1, 2016. The necessity for such clarification is due to numerous appeals of government bodies and their officials over the discrepancies in the understanding and application of certain provisions of the said Law and labor legislation.
The vision of the Committee is grounded on the provisions of the Constitution of Ukraine, the Labor Code of Ukraine, the Laws of Ukraine "On Civil Service" dated December 10, 2015 No. 889-VIII (hereinafter the Law No. 889) and "On Civil Service" dated December 16, 1993 No. 3723-XII (hereinafter the Law No. 3723).
Considering the issue, the Committee proceeded from the following.
Pursuant to Chapter XI "Final and Transitional Provisions" of the Law No. 889 it enters into effect from May 1, 2016 (Item 1) and at the same time the Law No. 3723 (Item 2) is declared void.
At that, Section 3, Article 3 of the Law No. 889 determines positions, which do not belong to the positions of civil service, and the list of which has significantly contracted compared with provisions of the Law No. 3723.
Pursuant to Article 32 of the Labor Code of Ukraine (hereinafter the Labour Code) in connection with changes in the organization of production and work, key employment terms may be changed provided continuation of work at the same specialty, qualification or position. The employee shall be notified on the change of key employment terms - system and size of wage payment, privileges, working schedule, setting or cancellation of part-time mode, combining of professions, changing of categories and titles, etc. - no later than two months in advance.
If previous key employment terms can not be preserved, and the employee does not agree to continue working in new conditions, then the labor contract is terminated pursuant to Item 6, Article 36 of the Labor Code (refusal to continue working due to the change of key employment terms).
Given the above provisions of the labor legislation, the effect of which extends to public employees who had been hired to the corresponding posts and served in accordance with the requirement of the Law No. 3723, employees of government bodies, having civil servant status pursuant to the above Law and since the entry into force of the new wording of the law No. 889 have lost their status, shall be notified of the change of key employment terms on the first working day after May 1, 2016 under the procedure stipulated in Article 32 of the Labor Code.
Taking into account provisions of Section 3, Article 22 of the Constitution of Ukraine concerning preventing the contraction of the content and scope of existing rights and freedoms when adopting new laws or making amendments to the laws in effect, the Committee believes that for the period of notifying of this category of workers, their wages, privileges, guarantees, compensations and liabilities they had owing to civil servant status shall be preserved pursuant to the legislation, which was in effect before May 1, 2016.
In addition, the Law No. 889 sets a new category of public employees, which perform functions of the service provision, not covered by the effect of this Law.
However, the functions of the service provision mean the activity of public employees, which does not involve exercising the authorities directly related to performing the tasks and functions specified in Section 1, Article 1 of the Law No. 889.
The criteria for setting the list of positions of public employees performing the functions of the service provision, pursuant to Section 4, Article 3 of the Law No. 889 are approved by the Cabinet of Ministers of Ukraine on the proposal of the central executive power body in charge of forming and implementing the national policy in the sphere of civil service. The list of positions of public employees performing the functions of the service provision, are approved by the central executive power body in charge of forming and implementing the national policy in the sphere of civil service, on the proposal of the head of civil service in the relevant body.
According to Item 2 of the Cabinet of Ministers of Ukraine’s resolution dated April 6, 2016 No. 271 "On the approval of criteria for setting the list of positions of public employees performing the functions of the service provision,” government bodies, whose jurisdiction covers entire territory of Ukraine, the territory of one or more regions, the city of Kyiv and Sevastopol, the territory of one or more districts, towns of regional significance, are tasked to within one month from the date of the entry into force of the Law No. 889 (that is by June 1, 2016) to elaborate, pursuant to the criteria approved by this resolution, and submit to the National Agency of Ukraine for Civil Service for the approval the lists of positions of public employees performing the functions of the service provision. Thus, the warning of persons holding such positions will be carried out after the Law No. 889 entry into effect.
In this regard, and given the provisions of Paragraph 3, Item 5 of Chapter XI "Final and Transitional Provisions" of the Law No. 889, the Committee believes that public employees whose positions belong to the list of positions of public employees performing the functions of the service provision, shall remain civil servants after May 1, 2016, enjoy all the rights stipulated by the legislation which had been in effect before, and continue performing their duties for the time till expiration of the period of the warning of changes to employment terms.
When preparing this Clarification people’s deputies of Ukraine - members of the Committee and representatives of central executive power bodies, including the National Agency of Ukraine on Civil Service, disclosed a coordinated position on the need for legislative regulation of the mentioned problem. At the same time, a group of people’s deputies of Ukraine with the assistance of government bodies’ representatives concerned, elaborated and registered a draft Law of Ukraine "On Amendments to the Law of Ukraine "On civil service" (concerning technical clarification of certain provisions)" (No. 4370 dated April 4, 2016), which provides for clearance of the procedure of the warning and loss of civil servant status.
Therefore, the Committee believes that the issue raised by the National Agency of Ukraine on Civil Service can be resolved through the approval by the Verkhovna Rada of Ukraine of a positive decision on the mentioned draft Law.