Can the bans in Ukraine's Labour Code be considered a guarantee of protection of women’s rights? - Jurfem

Can the bans in Ukraine’s Labour Code be considered a guarantee of protection of women’s rights?

Annotation. This material looks at the legislative prohibitions to engage women in night work and overtime work, send them on business trips as a form of restriction of the right to work and a form of discrimination. Separate legislative gaps have been identified and current legislative proposals aimed at eliminating them have been analyzed.

BRIEFLY ABOUT THE PROBLEM

Each new convocation of the Verkhovna Rada of Ukraine tries to amend the labour legislation, namely to adopt a new Labour Code, which, unlike the Labour Code of Ukraine, will protect the rights of employees to a greater extent. However, as of today, we still have the applicable Labour Code of Ukraine adopted on  December 10, 1971 with numerous amendments being made from time to time afterwards.

The historical period, in which this statute was adopted, also affected the guarantees on the labour market offered at that time by the Labour Code in terms of protecting the rights of women with children. In particular, a prohibition to engage women in night work and overtime work, send them on business trips, transfer to lighter work, a prohibition to dismiss and reduce wages, and others.

However, some of these guarantees may be viewed as a basis for discrimination against women, in particular the norms prohibiting to engage women in certain types of work (Article 174 of the Labour Code of Ukraine), engage women in night work (Article 175 of the Labour Code of Ukraine), overtime work and work on weekends and send pregnant women and women raising children under the age of three on business trips (Article 176 of the Labour Code of Ukraine).

The direct application of these norms violates women’s right to the work they freely choose, limits women’s access to jobs for which additional remuneration is provided, and can also discriminate against women when it comes to their career and professional growth.

Consistent with Article 186-1 of the Labour Code of Ukraine, these guarantees are also extended to fathers, but only to those “who raise children without a mother (including in case of the mother’s long-term treatment in a medical institution).”

Article 2-1 of the Labour Code of Ukraine lays down that: any labour-related discrimination is prohibited, in particular, a violation of the principle of equality of rights and opportunities, any direct or indirect restriction of the rights of employees due to their race, skin colour, political, religious and other beliefs, gender, gender identity, sexual orientation, ethnic, social and foreign origin, age, health condition, disability, suspicion or presence of HIV/AIDS, marital and property status, family responsibilities, place of residence, membership in a trade union or other association of citizens, participation in a strike, the fact of seeking or intending to seek protection of their rights with a court or other authorities, or support given to other employees in the protection of their rights, due to their language or other signs unrelated to the nature of work or the conditions of its performance”.

The Preamble of the Convention on the Elimination of All Forms of Discrimination against Women states that the member states of the Convention realize that in order to achieve complete equality between men and women, it is necessary to change the traditional roles of both men and women in society and in the family.

In 2021 a number of changes were made to the legislation on parental leave, which equalized, to some extent, the rights of men and women – workers with family responsibilities. In particular, we are talking about leave to look after a child until the child reaches the age of three. The relevant law was adopted by the Verkhovna Rada of Ukraine on  April 15, 2021.

At the same time, when parents raising a child under the age of three are employed, Article 176 of the Labour Code of Ukraine prohibits the employer to send the child’s mother on a business trip, despite the fact that she is not on parental leave, and allows sending the child’s father on a business trip.

The same article prohibits women raising children under the age of three to work at night, perform overtime work and work on weekends, although the pay for work performed on weekends and at night is higher, consistent with articles 107 and 108 of the Labour Code of Ukraine.

This approach of the legislator discriminates against both men and women and further exacerbates the existing stereotypes in society that child care is exclusively a woman’s duty.

Pursuant to the Law “On Ensuring Equal Rights and Opportunities for Women and Men”, the state policy on ensuring equal rights and opportunities for women and men is aimed, in particular, at “ensuring equal opportunities for women and men to combine their professional and family responsibilities; family support, promoting responsible motherhood and fatherhood”. In addition, the aforementioned Law provides that executive authorities and local self-government bodies within their competence “create conditions for women and men to combine their professional and family responsibilities”, and obliges employers to “provide women and men with an opportunity to combine work with their family responsibilities”.

The European Social Charter guarantees the right of workers having family responsibilities to equal opportunities and equal treatment (Article 27):

In order to ensure the exercise of the right of working men and women with family responsibilities to equal opportunities and equal treatment, as well as between such employees and other employees, the Parties undertake to:

1. take appropriate measures to make sure that:

a) workers with family responsibilities are given the opportunity to get employed and work, and to return to work after an absence due to such responsibilities, including measures related to career guidance and training;

b) their needs are taken into account in terms of employment conditions and social security;

c) a network of public or private services, in particular day care facilities and other forms of child care, are created and expanded;

3. provide both parents with the opportunity to be granted parental leave in the period after leave due to pregnancy and childbirth, the duration and conditions of which should be determined by national legislation, collective agreements or practice

4. ensure that family responsibilities are not a valid reason for dismissal.

Thus, the norms of the Labour Code of Ukraine, which prohibit to employ women in certain types of work (Article 174 of the Labour Code of Ukraine), engage women in night work (Article 175 of the Labour Code of Ukraine), engage women in night work, overtime work and work on weekends and send pregnant women and women raising children under the age of three on business trips (Article 176 of the Labour Code of Ukraine), are discriminatory against employees with family responsibilities.

AWAITING GENDER-SENSITIVE LABOUR LEGISLATION

On  September 17, 2021, Draft Law No. 6069 was registered in the Verkhovna Rada of Ukraine, in the discussion of which the experts from Analytical Center JurFem participated, namely “Draft Law on Amending the Labour Code of Ukraine on Non-Discrimination of Pregnant Women and Other Persons Raising a Child until the Child Reaches the Age of Three”. This draft law envisages making amendments to Article 176 of the Labour Code of Ukraine and putting it in the following wording:

 “Article 176. Prohibition to engage women in night work, overtime work, work on weekends and send women on business trips

Pregnant women are not allowed to work at night. It is not allowed to engage the mother, father or other legal representatives of the child in work at night until the child reaches the age of three, without their written consent.

It is not allowed to engage pregnant women, as well as the mother, father or other legal representatives of the child until the child reaches the age of three, in overtime work and work on weekends and send them on a business trip, without their written consent”.

The proposed changes enable the mother, father or other legal representatives of a child under the age of three to make their own decisions about working at night and on weekends, performing overtime work, and going on business trips.

A legal norm that gives a right to choose can indicate the provision of equal rights and opportunities, as well as the provision of guarantees to employees raising children under the age of three.

At the same time, it should be noted that the adoption of Draft Law 6069 is only one of the steps towards gender-sensitive labour legislation, because the discriminatory norms of Articles 174 and 175 of the Labour Code of Ukraine, which contain direct prohibitions on women’s work at night and to engage women in heavy work and work in harmful or dangerous working conditions, as well as underground work, except for some underground work (non-physical work or work on sanitary and household maintenance), are still applied.

Such prohibitions lead to the unofficial employment of women in such types of work and, actually, to the lack of guarantees of social protection and wages, and, accordingly, require changes in terms of giving every woman the right to choose.