Human rights defenders call on Zelenskyy to veto a law that obliges employees to report “connections” with people in the occupation

Dear Volodymyr Oleksandrovych!

On April 25, 2024, the Verkhovna Rada of Ukraine adopted the Law of Ukraine “On Amendments to the Labor Code of Ukraine on Establishing Additional Grounds for Termination of an Employment Contract at the Employer’s Initiative and some other issues” (hereinafter – the Law). In accordance with the draft Law, registered in the Verkhovna Rada of Ukraine back in September 2022, it was proposed to amend Article 41 of the Labor Code of Ukraine and to define at the legislative level additional grounds for terminating an employment contract at the initiative of the employer under the condition of “committing by an employee who works at state-owned objects of strategic importance for the economy and security of the state and/or objects of critical infrastructure, a misdemeanour incompatible with the continuation of this work, related to his support of the aggressor state”.

However, by the second reading, the content of this draft law had changed significantly: instead of making the above-mentioned changes to Article 41 of the Labor Code of Ukraine, the draft law provided for changes to Articles 40, 43, 46, 142 of the Labor Code of Ukraine, according to which its effect would not only apply to employees of critical infrastructure facilities.

In particular, this Law amends Article 142 of the Labor Code of Ukraine, according to which rules of conduct at an enterprise, institution, or organisation can be part of the rules of internal labour regulations, which contain provisions on “the provision by employees of information regarding their existing relationships with natural persons , whose place of permanent residence or registration is located in the territory of the aggressor state or the temporarily occupied territory of Ukraine”. Establishing the specified rules of conduct at enterprises, institutions and organisations of strategic importance for the economy and security of the state, and/or objects or operators of critical infrastructure is mandatory. At the same time, in accordance with the proposed amendments to Article 40 of the Labor Code of Ukraine, failure by an employee to comply with the rules of conduct at an enterprise, institution or organisation in part of the provisions provided for in the second part of Article 142 of the Labor Code of Ukraine may be grounds for terminating the employment contract at the initiative of the employer.

Therefore, the Law adopted by the Verkhovna Rada of Ukraine provides that enterprises, institutions and organisations can be established (and enterprises, institutions and organisations of strategic importance for the economy and security of the state, and/or objects or operators of critical infrastructure must be established) rules of labour regulations, which oblige the employee to provide information about their relations with natural persons who permanently live (located, registered) on the territory of the aggressor state or the temporarily occupied territory of Ukraine. Failure to fulfil this requirement is one of the grounds for dismissal of the employee (termination of the employment contract with them at the initiative of the employer).

We, representatives of a coalition of organisations that take care of the protection of people affected by armed aggression against Ukraine, believe that the provisions of the Law adopted by the Verkhovna Rada of Ukraine create grounds for oppression and stigmatisation of people who, like millions of our fellow citizens, have relatives and friends among residents of the temporarily occupied territories, internally displaced persons, people who went abroad due to Russia’s armed aggression against Ukraine and are registered in the temporarily occupied territory.

First, the requirement to report “connections” with residents of the occupied territories or people registered in these territories contradicts the state policy of reintegration of these territories, and also actually place millions of internally displaced persons and other citizens registered in the temporarily occupied territories, to the category of people whose “connections” should be perceived as a threat to Ukraine’s national security and the functioning of Ukraine’s critical infrastructure facilities. Undoubtedly, crimes against the foundations of national security, in particular collaborative actions, should be thoroughly investigated. However, these cases should be considered through the prism of national criminal legislation, and not changes to the Criminal Code.

Second, the Law does not contain a definition of “connections with natural persons”. Now it is not clear what is meant: family ties, contacts with colleagues and friends, or maybe maintaining connections in social networks (such as discussing news, current affairs, etc. with unknown people). The uncertainty of the scope and content of the concept of “connections”, about which the employer must be notified, obviously violates the principle of legal certainty and predictability of the application of legal norms. Such a provision actually allows the employer to dismiss the employee without reason, because it is not clear from it exactly what actions or inactions of the employee the employer will consider as “non-compliance with the rules of internal labour regulations”. This will inevitably lead to a court appeal against dismissal decisions with the formation of further practice and reinstatement of employees in their current positions.

Third, the Law does not clearly explain whether, in order to satisfy the requirement to report on “connections” with citizens of Ukraine on/from the temporarily occupied territory of Ukraine, which can/should be supplemented by the rules of conduct at the enterprise, institution and organisation, it will be sufficient to notify about the very existence of such connections, and whether the employer will have the right to demand personal data of people with whom these “connections” are established. Separately, it is important to note that the Law does not explain what an employer should do with the information reported to them. The absence of a legally established procedure for bringing an employee to disciplinary responsibility for committing the offence specified in the project, as well as the lack of authority of the employer to conduct a proper investigation does not comply with the provisions of Part 2 of Article 19 of the Constitution of Ukraine, therefore it may lead to unlimited interpretation of this norm in law enforcement practice and violation of the rights of employees.

Fourth, the requirement to supplement the rules of internal labour regulations at critical infrastructure facilities with a provision on reporting by employees information about “connections” with residents of the occupied territories or people who are there or registered is a disproportionate measure of state policy for protection of the national interests of Ukraine in conditions of armed aggression. Indeed, the Law pays special attention to security issues at enterprises, institutions and organisations of strategic importance for the economy and security of the state, as well as at critical infrastructure facilities. However, there remains a doubt as to whether the proposed measures are adequate and proportionate to the stated goal. If the authors of the draft law really believe that any “connections” with residents of the occupied territories or displaced persons pose a potential threat to national security, then what about the Defense Forces of Ukraine – after all, many Ukrainian soldiers not only have such connections, but also themselves they are IDPs from the occupied territories, they have family and friends there, they are fighting to return to their native home. As for critical infrastructure objects, there are tens of thousands of such objects in Ukraine in various sectors (fuel and energy sector, digital technologies, information protection, food industry and agro-industrial complex, state material reserve, health care, capital markets and organised commodity markets, financial sector, transport and post, life support systems, industry, state government and local self-government, etc.). This requirement will affect hundreds of thousands of people. The authors of the draft law justify their special attention to critical infrastructure enterprises by the fact that “the Russian military, with the help of collaborators, is carrying out mortar attacks on industrial zones of nuclear power plants”, and on the first day of the large-scale invasion, they seized the Chernobyl Nuclear Power Plant, and, “according to the Ukrainian mass media, such a “success” Russia in Chernobyl was not an accident, but part of a long Kremlin operation to introduce secret agents into the Ukrainian state”. Therefore, the proposals of people’s deputies to introduce rules that will affect hundreds of thousands of people are based on information from the media about “secret agents”, and not on data from law enforcement agencies or information from court verdicts.

According to Part 1 of Article 116 of the Law of Ukraine “On the Regulations of the Verkhovna Rada of Ukraine”, proposals and amendments to the draft law, which is being prepared for the second reading, may be introduced only to that text of the draft law (sections, chapters, articles, their parts, clauses, subsections, paragraphs , sentence), which the Verkhovna Rada adopted as a basis. As an exception, the main committee may decide to take into account the submitted proposals and amendments regarding corrections, clarifications, elimination of errors and/or contradictions in the text of the draft law, other structural parts of the draft law and/or other legislative acts that were not considered in the first reading, if the need for their introduction was mentioned in the conclusions of this main committee and/or expert unit of the Apparatus of the Verkhovna Rada and announced by the chairman of the plenary session during the consideration of such a draft law in the first reading. Such proposals and amendments must correspond to the subject of legal regulation of the draft law.

Instead, during the finalisation of the text of the draft law for the second reading, the number of norms of the Code of Criminal Procedure of Ukraine to which amendments are made significantly increased (from proposals for amendments to Article 41 of the Code of Criminal Procedure of Ukraine to amendments to Articles 40, 43, 46, 142 of the Code of Criminal Procedure of Ukraine), the proposals for changes also underwent significant differences. This is an obvious violation of the Rules of Procedure of the Verkhovna Rada of Ukraine.

In accordance with Article 94 of the Constitution of Ukraine, the Chairman of the Verkhovna Rada of Ukraine signs the Law and immediately forwards it to the President of Ukraine. Within fifteen days after receiving the law, the President of Ukraine signs it, taking it into effect, and officially promulgates it or returns the law with his motivated and formulated proposals to the Verkhovna Rada of Ukraine for reconsideration.

We, the representatives of the coalition of organisations concerned with the protection of the rights of victims of armed aggression against Ukraine, appeal to the President of Ukraine with a request to apply the right of veto to the Law of Ukraine “On Amendments to the Labor Code of Ukraine on Establishing Additional Grounds for Termination of an Employment Contract at the Employer’s Initiative and some other issues” dated 25 April, 2024 and return the Law to the Verkhovna Rada of Ukraine with the following proposals:

• remove clause 14 of Article 40 of the Criminal Code of Ukraine from the text of the Law;
• remove the first paragraph of the second part of Article 142 of the Criminal Code of Ukraine from the text of the Law.

We believe that the state should comprehensively promote the maintenance of relations with the residents of the occupied territories, and not make these relations “outlawed”, because maintaining relations with our citizens in the occupation is not a crime. Such legislative initiatives and accompanying justifications destroy the state’s reintegration policy. We are sure that the course for the reintegration of the residents of the territories currently under the occupation of the Russian Federation is the most acceptable vector for the development of a democratic state. Changing this vector, creating norms that actually equate Ukrainian citizens who suffered as a result of armed aggression against Ukraine to criminals, about “connections” with which the employer must be notified, is unacceptable. They have a negative impact on our fellow citizens in the occupation and on their resistance, which continues despite the actions of the aggressor country.

Human Rights Centre ZMINA

“Donbas SOS” NGO

“Civil Holding GROUP OF INFLUENCE” NGO

Charitable Fund “Right to Protection”

Charitable Foundation “Stabilization Support Services”

“CrimeaSOS” NGO

Crimean Human Rights Group

Charitable Foundation “EAST-SOS”