The long-awaited summer has arrived: time for rest, travel, beautiful photos on Instagram. All this is a long-awaited vacation. We are talking about the right to vacation today with Igor Shavrov, a well-known Ukrainian lawyer who manages the Shavrov and Partners law firm.
So, all citizens of Ukraine who are in labor relations with enterprises, institutions, organizations, regardless of the form of ownership, type of activity and industry affiliation, and also work under an employment contract with an individual, have the right to vacation.
And private entrepreneurs (individuals — subjects of entrepreneurial activity without the formation of a legal entity with the right to hire employees) do not have the right to annual vacations, since they are not in an employment relationship.
Article 3 of the Law on Vacations defines the right to vacation when an employee is dismissed. At the employee's request, in the event of his dismissal (except dismissal for violation of labor discipline), he should be granted unused leave with subsequent dismissal. In this case, the date of dismissal is the last day of vacation. On the day of dismissal, the employee must be paid all amounts due to him from the enterprise.
In the case of dismissal of an employee due to the expiration of the term of the employment contract, unused vacation may be granted at his request even when the vacation period fully or partially exceeds the term of the employment contract. In this case, the employment contract continues until the end of the leave.
Types of annual leave
The types of annual vacations are defined by Art. 4 of the Law on Holidays. These include:
• basic leave;
• additional leave for work with harmful and difficult working conditions;
• additional leave for the special nature of work;
• other additional holidays provided for by law.
Annual basic leave and its duration
Annual basic leave is a leave to which all employees in labor relations have the right.
According to the first part of Article 6 of the Law on Vacations, annual basic vacation is granted to employees for a duration of at least 24 calendar days per hour worked, which is counted from the day of the conclusion of the employment contract.
Some categories of employees enjoy the right to vacation for a longer period of time (Article 6 of the Law on Vacations).
In addition, the provisions of Art. 6 of the Law on Vacations regarding the duration of the annual basic vacation do not apply to employees whose vacation duration is established by other acts of the law, however, the duration of their vacation may not be less than that provided for in the first, seventh, and eighth parts of Article. 6 of the Law on Holidays.
In accordance with Art. 91 of the Labor Code and Art. 69 of the CCU, enterprises within the limits of their powers and at the expense of their own funds may establish additional labor and social welfare benefits for employees, including annual leave of a longer duration than the legislation.
The procedure for granting vacations
The procedure and conditions for granting annual vacations are regulated by Article 79 of the Labor Code and Article 10 of the Law on Vacations. According to the norms of the specified articles, the provision of leave is the employer's responsibility.
Additional annual leave at the employee's request may be granted simultaneously with the annual basic leave or separately from it.
The total duration of annual basic and additional vacations may not exceed 59 days, and for workers engaged in underground mining — 69 days.
The employee's right to annual basic and additional vacations of full duration in the first hour of work after six months of continuous work at this enterprise, institution, or organization.
In the event that the specified annual leave is granted to the employee before the expiration of the six-month period of continuous work, their duration is in accordance with part six of Article 10 of the Law on vacations is determined in proportion to the time worked, with the exception of cases when full-length annual vacations are granted at the request of the employee before the six-month period of continuous work in the first hour of work at the enterprise.
The sequence of granting vacations is determined by the schedules, which are approved by the owner or the body authorized by him in agreement with the elected body of the primary trade union organization (trade union representative) or the second body authorized to represent the labor collective and are brought to the attention of all employees. When drawing up vacation schedules, the interests of production, personal interests of employees, and opportunities for their rest are taken into account.
The Law on Vacations does not establish a deadline for approving vacation schedules.
By agreement of the parties, the vacation can be planned in parts. When dividing the vacation into parts, it should be taken into account that one main continuous part of it must be at least 14 calendar days.
The specific period of granting annual vacations within the limits established by the schedule is agreed between the employee and the employer, who is obliged to notify the employee in writing about the date of the start of the vacation no later than two weeks before the period established by the schedule.
Annual and other types of vacations granted to employees in accordance with the current legislation are issued by order (order) in standard form No. P-3.
The order (распоряжение) is issued in two copies: the first one is for the personnel service, the second one is for accounting. It is signed by the head of the structural subdivision (head (master) of the shop (department, section)) and the head of the enterprise. The employee signs the order stating that he is familiar with it.
If the employee takes part of the annual leave for the hours worked, the order states, for example: "Give Petrenko Ivan Petrovych, an accountant, part of the annual basic leave with a duration of 5 calendar days. From May 25 to May 29, 2021 during working hours from June 12, 2020 to June 11, 2021."
Annual leave at the request of the employee must be transferred to the second period in the case of:
• violation by the owner of the deadline for notifying the employee about the time of granting leave *;
• untimely payment of wages by the owner to the employee during annual leave *.
• performance by the employee of state or public duties, if according to the legislation he is subject to release for the time being from the main job with retention of salary;
• the onset of maternity leave;
• coincidence of annual leave with leave due to training.
• temporary disability of the employee, certified in accordance with the established procedure. If the incapacity for work occurred during the vacation period, it is subject to extension for the number of calendar days during which the employee was sick according to the incapacity for work certificate.
On the other hand, the occurrence of the specified circumstances does not mean that the employee can, at his own discretion, decide on the issue of transferring the vacation to the period immediately following the day of termination of these circumstances. When annual leave is transferred, the new term of its provision is established by agreement between the employee and the owner.
If the reasons that led to the postponement of the leave to the second period occurred during its use, then the unused part of the annual leave is granted after the end of the reasons that interrupted it, or by agreement of the parties it is transferred to the second period in compliance with the requirements of Article 12 of the Law on Vacations.
Annual vacation at the initiative of the owner, as an exception, can be transferred to a second period only with the written consent of the employee and on the condition that part of the vacation with a duration of at least 24 calendar days will be used in the current working year.
The non-grant of full-length annual leave for two years in a row, as well as the non-grant of annual leave during the working year to persons under the age of 18 and employees entitled to additional annual leave for work with harmful and difficult conditions or with a special nature of work, is prohibited.
Article 79 of the Labor Code and Art. 12 of the Law on Vacations provides that withdrawal from the annual vacation is allowed with the consent of the employee only in cases provided by the legislation, in particular:
• to prevent a natural disaster, industrial accident or immediate elimination of their consequences;
• to prevent accidents, downtime, loss or damage to the company's property.
Withdrawal from annual leave is allowed only under the following conditions:
• consent of the employee;
• the main continuous part of the leave (before the withdrawal or after it) must be at least 14 calendar days.
• the unused part of the annual leave must be granted to the employee after the expiration of the reasons for which the employee was withdrawn from leave, or by agreement of the parties it is transferred to the second period in compliance with the requirements of Art. 12 of the Law on Holidays.
In case of withdrawal of an employee from vacation, his work is paid taking into account the amount that was accrued to pay for the unused part of the vacation.
Can aunts or adult brothers or sisters of a newborn child go on maternity leave?
In practice, such a subject as "second relatives" who actually take care of the child remains undefined, since there is no clear definition of these persons either in labor, civil, or family legislation. Most often, such a subject as "second relatives" is mentioned in the Family Code of Ukraine.
According to the paragraph of the seventh point 4 of the resolution of the Plenum of the Supreme Court of Ukraine "On the application by the courts of the norms of the Family Code of Ukraine when considering cases regarding paternity, maternity and the collection of alimony" dated May 15, 2006 No. 3, the term "relatives", which is used in the Family Code of Ukraine, is covered the following persons: grandmother, grandfather, great-grandmother, great-grandfather, full-born brother and sister.
At the same time, the same paragraph of the specified resolution contains the definition of "other persons", which means the persons in whose family the child is raised. They, in particular, can be an aunt, uncle, cousin, sister, brother.
Is it possible to share maternity leave between family members?
For example, in the first hour the mother sits with the child on maternity leave, in the second - the father, and in the third - the grandmother?
Part seven of Article 179 of the Labor Code of Ukraine stipulates that childcare leave may be used in whole or in part by the child's father, grandmother, grandfather or other relatives who actually care for the child. Also, the right to the specified leave can be used by a person who adopted a child or took him under guardianship, one of the adoptive parents and foster parents.
And what about a decree for a single mother if she has no relatives?
A single mother can work part-time or at home while on maternity leave (Article 179 of the Labor Code of Ukraine).
In addition, the mother has the right to apply to the social protection authority at the place of registration or actual residence to apply for child benefit as a single mother.
It is also necessary to remind that in Ukraine it is possible to use the state service for caring for a child up to 3 years old - "municipal nanny».
