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Main - Economic liberalization - Applying flexible forms of employment: recommendations




Applying flexible forms of employment: recommendations

Flexible (non-standard, atypical) forms of employment are generally understood as employment relationships between the employer and the worker which differ from relationships based on an open-ended employment agreement with normal hours of work.

Nowadays, intensive use of flexible forms of employment is one of the key trends in the labour market. Flexible forms of employment make efficient use of labour force of all social and demographic groups, including those who, due to either limited capacity to work, domestic or other reasons, cannot work a full working day or, for instance, cannot work in the designated workplace.

Employment with non-standard working-time

Non-standard working-time includes:

- flexible hours of work;

- accumulated hours of work;

- part-time.

Flexible hours of work

Flexible hours of work are applied when, for whatever reasons (domestic, social, etc.), either the use of conventional work schedules is difficult or ineffective, or it allows to save working time.

The main idea of flexible hours of work is to set fixed period of time when the worker has to be in his workplace, and, simultaneously, provide him with timeframes of variable (flexible) hours of work at the beginning and at the end of the working day (shift), within which the worker is allowed to start and finish his work (i.e., start and end-time of work may ‘float’), thus giving the worker more freedom in managing his time.

Application of flexible hours of work is subject to three main conditions:

mandatory daily presence at work of individual workers or all workers of a given department at a certain time (interval) of the working day (so called ‘fixed hours’) so as to ensure synchronised functioning of the organisation’s department(s) and maintain necessary contacts between workers and managers, as well as external contacts;

mandatory completion by every worker of a certain (defined by law) number of working hours per week or month, depending on accounting period adopted by the enterprise;

accurate calculation of hours worked, accurate recording of assignments accomplished by every worker, and efficient use of working time.

Decision to implement the regime of flexible hours of work is made by the employer upon receiving individual or collective requests in consultation with the trade union (art. 128, par. 2 of the Labour Code of the Republic of Belarus, LC).

Transfer of individual workers (or all workers) and structural units (shops, lots, divisions, brigades, etc.) to flexible hours of work is approved by an order (direction) issued by the head of the organisation. The order must specify terms of the regime and the period of its validity.

Flexible hours of work can be applied regardless the length of the working day. However, the regime is not used when work is being performed outside the premises of the organisation.

If flexible hours of work are applied in part-time, base rate of working time for workers are calculated on the basis of actually established weekly (monthly, etc.) base rate of working time.

Under flexible hours of work wages are paid for hours actually worked in accordance with the remuneration system adopted by the organisation.

All elements of flexible hours of work, i.e. variable (flexible) hours, fixed hours, time for lunch break and rest (its actual duration is not included in the hours of work), duration (type) of an accounting period, are to be set in a work schedule.

Fixed hours are considered as the main part of the working day, during which production process sustains normal flowing.

Having two periods of variable (flexible) hours the worker is able to complete necessary number of working hours in the accounting period. During flexible hours of the working day, the worker can ad lib, with the knowledge of his immediate supervisor, start and finish his work, take a lunch break at any or predetermined time. Duration of flexible hours of work is normally between 1h 30 min and 2 hours, but it is possible to set another period.

Depending on duration of an accounting period, there are several modes of flexible hours of work:

- with accounting period equal to a working day;

- with accounting period equal to a working week;

- with accounting period equal to a working month.

A working ten-day period (dekada), working quarter, as well as other periods may also be chosen as an accounting period.

The exact duration of each element of flexible hours of work and an accounting period is established by the employer in consultation with the trade union. The maximum duration of flexible hours of work per working day (in a 40-hour working week) should not exceed 10 hours. Breaks for lunch and rest should not exceed 2 hours and 20 minutes.

Work schedule can be made up either for indefinite period, or for any period convenient for the worker.

In case of operational necessity or due to single or repeated violations of the established regime the employer can transfer the worker to standard hours of work.

As a rule, flexible hours of work are not used in discontinuous productions, productions with three-shift and two-shift operation (the latter – in the absence of vacancies), during change of shifts, when work is performed outside the organisation (e.g. business trip, participation in meetings, conferences, etc.), as well as in other cases depending on specifics of production process. In accordance with art. 131, par. 2 of LC, in certain cases application of flexible hours of work may be limited.

Accumulated hours of work

Accumulated hours of work provide employers and workers with a wide range of options of flexible employment.

This special regime of work provides for keeping record of time actually worked per day and per week when it deviates from the base rate of working time established by labour laws for various categories of workers, and observing average minimum duration (42 hours) of weekly continuous rest in the accounting period adopted by the organisation.

Decision to introduce the regime of accumulated hours of work is taken by the employer in consultation with the trade union (if there is one). At this point, duration of an accounting period (a month, a quarter, half a year, a year) should also be determined. Duration of an accounting period should not exceed one calendar year.

For accumulated hours of work, an accounting period is a time period during which an average base rate of working time per week, as defined in arts. 112-114 of LC for various categories of workers, should be completed.

Work schedules (shift schedules) should be drawn up so that scheduled hours of work for the whole accounting period correspond to the estimated base rate of working time for the same period set in arts. 112-117 of LC, which depends on the regime of work adopted by the organisation.

There is an option to set within an accounting period longer hours of work in particular days (of the week) and, correspondingly, shorter hours of work in other days comparing to a weekly rate of working time. But daily hours of work should not exceed 12 hours. Day-offs should be provided after every 6 consecutive working days at most.

Under accumulated hours of work, additional free time accumulated within sections of the accounting period is used by the worker to his own advantage.

Part-time

There are several types of part-time: part-time working day (reduced daily work), part-time working week (fewer working days in a five- or six-day working week with normal daily hours of work), and combination of the two.

Part-time is introduced upon agreement between the parties at the time of hiring or after it, upon receiving a written request from the worker, by the employer’s order. The order should indicate hours of work, days, weeks, deadlines, etc. (art. 118 of LC).

Introduction (cancellation) of part-time in the course of employment can be initiated by the employer, and will be regarded as a change of essential conditions of employment. Accordingly, such a change should be justified by industrial, institutional or economic reasons (art. 32, par. 1 of LC). Pursuant to art. 32, par. 3 of LC, the employer must notify the worker in writing about changes of essential conditions of employment not later than a month before they come into force.

Remuneration for workers who work part-time is proportionate to the time actually worked (art. 290 of LC).

Cases when the employer is obliged to introduce part-time working day or part-time working week are specified in art. 289 of LC:

1) at the instance of a pregnant woman, a woman with a child (including foster child) under the age of fourteen, a worker who takes care of a sick family member in accordance with prescription of medical authorities;

2) when employing persons with disabilities in accordance with recommendations of medical authorities;

3) when hiring a person who does two jobs at a time;

4) when employing other categories of workers specified in a collective agreement.

For the worker, working part-time does not entail any restrictions with respect to duration of the leave, calculation of the length of service (except special service) and other labour rights.

Employment under fixed-term agreements

The employer can offer a fixed-term employment agreement only if employment relationship can not be established for indefinite period given the nature of the work or conditions of its realisation, and in cases stipulated by the Labour Code (art. 17, par. 2 of LC).

Apart from indefinite-term employment agreement, article 17 of the Labour Code specifies the following types of employment agreements:

- employment agreement concluded for the maximum period of 5 years (fixed-term employment contract);

- employment agreement concluded for the period necessary to complete a certain job;

- employment agreement to perform duties of a temporarily absent worker, whose job, in accordance with the Labour Code, remains reserved for him;

- employment agreement for seasonal work.

A fixed-term employment agreement is made in writing and must contain compulsory information and conditions laid down in art. 19 of LC.

As a general rule that distinguishes a fixed-term employment agreement from an indefinite-term employment agreement, a fixed-term agreement, as well as an order (direction) for a job, must contain a provision specifying contract time.

According to art. 17 of LC, if an employment agreement does not specify contract time, the agreement is considered to be concluded for indefinite period.

Pursuant to art. 17, par. 2 of LC, the maximum contract time of a fixed-term employment agreement is 5 years.

If upon expiration of either maximum contract time of a fixed-term employment agreement or contract time of a fixed-term employment agreement concluded for 1-5 years, de facto employment relationship goes on and neither side has demanded its cessation, the term of the employment agreement is considered to be prolonged for indefinite period (art. 39 of LC).

In art. 17, par. 2 of LC a contract is defined as a specific type of a fixed-term employment agreement.

Matters concerning employment contracts are regulated by the Presidential Decree of July 26, 1999 No. 29 “On additional measures to improve labour relations, and strength labour and executive discipline” (hereinafter - the Decree).

Unlike other types of fixed-term employment agreements, a contract is made without regard to the nature of work or conditions of its realisation, i.e. the subject of a contract is the work of permanent character.

A contract is made in writing and concluded for a fixed period, and comparing to general requirements of the labour law it contains some specific provisions.

In addition to general requirements to employment agreement (art. 19 of LC), a contract must contain mandatory conditions corresponded to job description stipulated by the Decree and other legal acts.

The employer can make a contract with the worker at the time of hiring or workers who are employed under indefinite-term agreements.

Transfer from an indefinite-term employment agreement to a contract is regarded as a change of essential conditions of employment (section 1 of the Decree), and is implemented in accordance with the procedure stipulated in art. 32 of LC. If the worker refuses to be transferred to contractual form of employment, such refusal may result in termination of employment pursuant to art. 35, par. 5 of LC (“refusal of a worker to continue working due to changes of essential conditions of employment”).

For a contract, the minimum term of one year is mandatory.

The maximum term of a contract should not exceed 5 years which is the maximum term for fixed-term employment agreements determined in art. 17 of LC.

If a contract is concluded more than 5 years, after five years employment relations are considered as prolonged for indefinite period.

Peculiarities of employment agreement made for the period necessary to complete a certain job

According to art. 17, par. 1.3 of LC, an employment agreement may be concluded for the period necessary to complete a certain job.

The difference between this type of employment agreement and an agreement made for a definite period (1, 2, 3 years and so on) is that contract time of the former is determined not by an exact calendar date, but the time needed to complete particular tasks, as the ending of work is determined not by a certain date, but by the fact of completion of the job confirmed, as a rule, by acceptance certificate.

An employment agreement made for the period necessary to complete a certain job is used in cases when progress of work and, therefore, time for its completion with results specified in the agreement, apart from proper implementation of the employment agreement by the parties, depends on many factors, including external, and therefore the exact date of job completion can not be specified when the employment agreement is signed. An employment agreement with the worker concluded for the period necessary to complete a certain job as well as an order for a job, must contain a provision specifying which job the worker is employed to complete (e.g., “hired as a second-class stoker for the heating season”).

Peculiarities of employment agreement to perform duties of a temporarily absent worker

In case of temporary absence of a staff worker (due to illness or leave) whose job is remained reserved for him, there is an option to conclude an employment agreement to perform duties of a temporarily absent worker (art. 17 par. 1.4 of LC).

Generally a fixed-term employment agreement to perform duties of a temporarily absent worker is used in cases of prolonged (more than 4 months) absence of the staff worker.

The most common reasons of temporary absence of workers who, under the Labour Code, have their jobs secured for them are:

a worker is taking child-care leave until the child reaches the age of 3 years (art. 183, par. 3 and art. 185 of LC);

a worker sustains long-term (over 4 months) temporary disability;

a worker is performing public and social duties (art. 101 of LC);

a worker is attending advanced training, studying or retraining course with work being discontinued (art. 102 of LC).

In accordance with art. 38, par. 3 of LC, an employment agreement to perform duties of a temporarily absent worker ceases to be effective one day before the worker’s appearance at work, pursuant to art. 35, par. 2 of LC, due to termination of the employment agreement.

Art. 17, par. 1.4 of LC is applicable only if temporary absence of the worker exceeds four months. If the period of temporary absence is less than four months, provisions of Chapter 23 of LC regulating employment of temporary workers should be applied instead.

Peculiarities of labour regulation

concerning employment of seasonal workers

The list of seasonal jobs is approved by the Regulation of the Ministry of Labour of the Republic of Belarus of April 14, 2000 No. 56. It is mandatory for employers and can not be extended.

Matters concerning employment of seasonal workers are regulated in Chapter 24 of LC.

The definition of seasonal workers is given in art. 299 par. 2 of LC which provides two attributes of seasonal workers – if the two are present an employee is recognised as a seasonal worker:

a person is employed in works which, due to natural and climatic conditions, are not performed on a year-round basis;

time needed to perform such works in a given period does not exceed 6 months.

Specific provisions concerning making of employment agreements with seasonal workers are listed in art. 300 of LC, where it is stipulated that:

seasonal character of the job should be stated in the employment agreement;

when applying for seasonal job an employment agreement is to be made for a period that does not exceed duration of the season;

seasonal workers are not subject to probationary period.

If the worker is employed to do seasonal work for up to two months (four months - in case of replacement of an absent worker), he is considered to be a temporary worker and thus subject to provisions of Chapter 23 of LC.

Labour legislation contains special provisions concerning termination of employment agreements with seasonal workers.

Pursuant to art. 301, par. 1 of LC, seasonal workers have the right of voluntary early termination of employment agreement provided the employer is notified in writing at least three days in advance.

In accordance with art. 301 par. 2 of LC, an employment agreement with seasonal workers can be terminated on the grounds provided by art. 42 (with the exception of par. 6) and art. 44 of LC, as well as in the following cases:

1) the work has been suspended for more than two weeks for reasons related to production process or reduction of workload;

2) absence of a seasonal worker from work due to continuous temporary disability for more than a month. If a seasonal worker loses his ability to work due to occupational injury or illness, as well as when legislation establishes a longer security period for workers who have particular diseases, he has his job (position) secured until full rehabilitation or confirmation of disability, but not longer than the term of the employment agreement.

Contrary to the general provision on severance pay specified in art. 48 of LC, seasonal workers are entitled to severance pay only in two cases:

dismissal due to suspension of work for more than two weeks or reduction of workload (as defined in art. 301, par. 2.1 of LC) – in this case the amount of pay should be no less than average weekly earnings;

dismissal due to conscription of the worker (as defined in art. 44, par. 1 of LC) – the amount of severance pay should be no less than average two-week earnings.

Severance pay is paid out if the order (direction) for dismissal contains a reference to art. 301, par. 2.1 or art. 44, par. 1 of LC.

Peculiarities of labour regulation

concerning employment of temporary workers

Employment of temporary workers is regulated by provisions of Chapter 23 of LC.

In accordance with art. 292 of LC, an employee is recognized as a temporary worker if he is hired for the period of up to two months to a vacant job (position), or for the period of up to four months to substitute a temporarily absent worker whose job (position) remains reserved for him.

An employment agreement with a temporary worker must contain the information and conditions generally included in an employment agreement, plus a provision indicating temporary nature of work. Temporary workers are not subject to probationary period.

Legislation contains special provisions concerning hours of work and rest for temporary workers.

In particular, art. 297 of LC stipulates that a temporary worker who has concluded an employment agreement for up to six days within this period may be called to work without his consent on public holidays and red-letter days established and declared by the President of the Republic of Belarus as non-working days, as well as on weekends. Other categories of workers, including temporary workers hired for more than six days, can be called to work on public holidays, red-letter days and weekends without their consent only on occasions stipulated by arts. 143 and 147 of LC. For the work done on the above mentioned days workers employed for up to six days are paid standard wage, additional days of rest not provided.

Chapter 23 of LC contains special provisions on termination of employment agreement with a temporary worker.

Taking into consideration the short term of employment, art. 294 of LC significantly reduces for temporary workers wishing to terminate employment agreement the period of written notice of the employer – three days in advance.

In accordance with art. 294, par. 2 of LC, an employment agreement with a temporary worker can be terminated on the grounds provided by art. 42 (with the exception of par. 6) and art. 44 of LC, as well as in the following cases:

1) the work has been suspended for more than one week for reasons related to production process or reduction of workload;

2) absence of the worker from work due to continuous temporary disability for more than two weeks. If a temporary worker loses his ability to work due to occupational injury or illness, as well as when legislation establishes a longer security period for workers who have particular diseases, he has his job (position) secured until full rehabilitation or confirmation of disability, but not longer than the term of the employment agreement.

3) failure without reasonable excuse of a temporary worker to perform his duties in accordance with the employment agreement, internal labour regulations and the Labour Code.

Art. 295 of LC provides for a significantly finite number of cases when temporary workers are entitled to severance pay:

1) dismissal due to suspension of work caused by production reasons for more than one week or reduction of workload – in this case the amount of pay should be equal to average weekly earnings;

2) dismissal due to conscription of the worker – the amount of severance pay should be equal to average two-week earnings.

In other cases, i.e. termination of an employment agreement is made on other grounds, severance pay to temporary workers is not provided.

Art. 298 of LC describes cases when an employment agreement with a temporary workers is considered to be extended for indefinite period:

1) a temporary worker has worked longer than the term specified in art. 292, par. 1 of LC (i.e., 2 or 4 months), and neither party demands termination of employment;

2) a temporary worker who was once fired is hired again by the same employer within one week after previous dismissal, provided his total working time before and after the break is more than, respectively, two or four months.

Pursuant to art. 179 of LC, at dismissal of a temporary and seasonal worker the employer in addition to remuneration for completed working hours provides compensation for unused leave in the amount proportionate to hours worked.

Payment of average earnings to seasonal and temporary workers during forced outage is regulated by arts. 296 and 303 of LC.

Other matters related to seasonal and temporary workers and not covered in Chapters 23 and 24 of LC are regulated by general labour rules.

Employment under agreement to perform

work outside the premises of the employer

Peculiarities of labour regulation

concerning employment of domestic workers

The work of domestic workers is regulated by general labour law subject to special provisions of Chapter 25 of LC.

The definition of domestic workers is given in art. 304, par. 1 of LC.

Employment procedure and organisation of work of domestic workers are regulated by the Order of the Ministry of Labour of the Republic of Belarus of April 11, 2008 No. 48 concerning working conditions of domestic workers.

An employment agreement with a domestic worker should be in writing and contain the information and conditions specified in art. 19 of LC. As one of the mandatory provisions of the employment agreement, the place of work, i.e. homework, must be specifically mentioned.

Domestic workers are employed in accordance with a staff list.

Organising domestic work the employer can conclude an employment agreement with any person willing to work on the proposed terms, subject to the requirements of labour laws concerning worker’s age, his state of health (for specific types of work), skills, etc.

Art. 305 of LC provides to certain categories of workers some privileges in terms of concluding an employment agreement for domestic work, in particular:

1) women with children under the age of sixteen (eighteen – for children with);

2) persons with disabilities and seniors (type of pension benefits regardless);

3) persons with limited working capacity, who have been officially recommended to do home-based work;

4) care-givers of persons with disabilities or family members who sustain long-term illness and need to be taken care of;

5) seasonal workers during off-season and day-time students;

6) persons who for objective reasons can not be directly engaged in production in a particular area.

Preference to conclude an employment agreement does not imply that the employer is obliged to hire unconditionally only the above-mentioned groups of persons. The preference clause limits the employer’s free choice of a person he wants to hire for domestic work only when two or more candidates have applied for the job.

In accordance with art. 306, par. 1 of LC, only persons who have necessary living conditions and practical skills or persons who can be trained in those skills in order to perform specific types of work can be engaged in domestic work.

The employer has an obligation to provide domestic workers with tools, equipment, machinery and appliances free of charge, as well as timely repair service. At the same time labour legislation does not prohibit the use by domestic workers of their own tools, equipment, machinery and appliances. In this case, the worker shall be paid tool-wear compensation, its amount and method of payment to be determined by mutual arrangement between the worker and his employer.

Under the agreement a domestic worker may be recompensed for other costs associated with performing domestic work for the employer (cost of electricity, water, etc.).

The specific type of work for a domestic worker is selected taking into account his skills and health.

In accordance with preventive fire-fighting regulations and sanitation rules, certain types of domestic work may be performed only after obtaining permission from relevant authorities.

Procedure and terms of supplying raw materials, substances and intermediate products, as well as method of payment for manufactured goods, recompense for materials (if products are made from workers’ own materials), and delivery of finished products are specified in an employment agreement and (or) a collective agreement.

In accordance with art. 307 of LC, in cases when domestic workers are engaged in work with non-standard organisational and technical conditions (e.g. using their own tools, equipment, etc.), the employer, taking into account economic feasibility, may assign to them production quotas based on specific working conditions.

For all completed work domestic workers are paid standard wage, if the employment agreement does not provide for higher pay (art. 307, par. 2 of LC).

Thus, remuneration for domestic workers is determined by the relevant provisions of domestic work agreements. Depending on the assigned job and particular working conditions for a domestic worker, time-work, piece-work or other remuneration systems are applicable.

Labour laws do not contain any exceptions to general rules regarding termination of employment agreement with domestic workers, i.e. an employment agreement with a domestic worker may be terminated on the grounds stipulated in labour legislation.