Done by Levchenko Ivanna, ME110i, KNEU
Today, more and more Ukrainian employers are attracting foreign professionals to their companies. Over the past 10 years, legislation in the field of obtaining work permits for foreigners in Ukraine has undergone significant changes. Today, the provisions of current regulations have really simplified the procedure for obtaining such a permit for both employers and foreigners. Unfortunately, some gaps and inconsistencies still exist.
According to Article 43 of the Constitution of Ukraine, everyone has the right to work, which includes the opportunity to earn a living by work which he freely chooses or agrees freely.
An employee has the right to exercise his or her ability to perform productively and creatively by concluding an employment contract at one or several enterprises, institutions, organizations, unless otherwise provided by law, collective agreement or agreement of the parties.
The Labor Code of Ukraine defines the employment contract:
An employment contract is an agreement between an employee and the owner of an enterprise, institution, organization or an authorized body or natural person, under which the employee undertakes to perform the work specified in this agreement, subject to internal labor regulations, and the owner of the enterprise, institution, organization or the body or person authorized by him or her undertakes to pay the employee a salary and to provide the working conditions necessary for the performance of the work provided for by the labor legislation, by a collective agreement th and agreement.
An employment contract can be:
1) termless, which is concluded for an indefinite period;
2) for a fixed term, established by agreement of the parties;
3) fit for the duration of a particular work.
A fixed-term employment contract is concluded in cases where the employment relationship cannot be established for an indefinite period, taking into account the nature of the next job, or the conditions of its performance, or the interests of the employee, and in other cases stipulated by legislative acts.
The employment contract is usually in writing. Observance of writing is obligatory:
1) with organized recruitment of employees;
2) when concluding an employment contract for work in areas with special natural geographical and geological and high-risk conditions for health;
3) when concluding a contract;
4) in cases where the employee insists on the conclusion of the employment contract in writing;
5) when concluding an employment contract with a minor;
6) when concluding an employment contract with an individual;
7) in other cases stipulated by the legislation of Ukraine.
When concluding an employment contract, a citizen is obliged to submit a passport or other document certifying the person, the employment record, and in the cases stipulated by the law, also a document on education (specialty, qualification), health status and other documents.
An employee may not be allowed to work without concluding an employment contract issued by the order or order of the owner or his authorized body, and the notification of the central executive body on issues of ensuring the formation and implementation of the state policy on administration of a single contribution to the compulsory state social security to work in accordance with the procedure established by the Cabinet of Ministers of Ukraine.
A person invited to work in the order of transfer from another enterprise, institution, organization by agreement between the heads of enterprises, institutions, organizations, cannot be denied a labor contract.
!!!It is forbidden to conclude an employment contract with a citizen who, according to a medical opinion, is offered a job contraindicated for health reasons!!!
When concluding an employment contract, it is forbidden to require from persons entering the work, information about their party and national affiliation, origin, registration of place of residence or stay and documents, the submission of which is not provided by law.
The grounds for termination of the employment contract are:
1) agreement of the parties;
2) expiration of the term, except when the employment relationship is actually in progress and neither of the parties has made a request for their termination;
3) termination of the employment contract on the initiative of the employee, on the initiative of the owner or the body authorized by him or at the request of the trade union or other body authorized to represent the labor collective;
4) transfer of the employee, at his / her consent, to another enterprise, institution, organization or transfer to an elected position;
5) refusal of the employee to transfer to work in another locality together with the enterprise, institution, organization, as well as refusal to continue work in connection with the change of essential working conditions;
6) entry into force of a court sentence that sentenced an employee (except in cases of exemption from serving a sentence of probation) to imprisonment or to another punishment that precludes the possibility of continuing this work;
7) the grounds stipulated by the contract;
8) the grounds stipulated by other laws.
The employment of foreign nationals in Ukraine is specific. Registration of foreigners with a permanent residence permit is done according to the same rules as the Ukrainians themselves. At the same time, the process of employment of foreigners with a temporary residence permit has certain features that the staffing department is obliged to take into account.
The procedure for hiring foreigners with a temporary residence permit consists of five steps:
① preparation of the draft employment contract with the foreigner;
② obtaining permission to use a foreigner’s work;
③ registration of labor relations with a foreigner;
④ providing the employment center with a copy of the employment contract concluded with the foreigner;
⑤ Issuing a copy of permission to the foreigner to use his work.
Applying for a foreigner’s employment permit
To apply for a foreigner’s employment permit, submit to the employment service:
•application for a permit;
•copies of the pages of the passport document of the foreigner with personal data together with the certified translation into Ukrainian;
•a color photo of a foreigner 3.5 × 4.5 cm in size;
•certified copy of the draft employment contract (contract) (Article 42-2 of Law No. 5067).
Please provide additional documents for employment of certain categories of foreigners:
|Separate categories of foreigners||Documents|
|University graduates in the top 100 university rankings||copy of the diploma on higher education, recognized in Ukraine in the manner determined by the order of the Ministry of Education and Science of 05.05.2015 № 504|
|Foreign workers of creative professions are notarized||certified copies of documents identifying the subject of copyright and / or related rights of the author and certifying the authorship (copyright)|
|Seconded foreign workers||copy of the contract (contract) concluded between Ukrainian and foreign economic entities, which provides for the use of work of foreigners sent to Ukraine to perform a certain amount of work (provision of services)|
|Internal corporate assigns||the decision of the foreign entity to transfer the foreigner to work in Ukraine; copy of the contract concluded between a foreigner or a foreign entity for transfer to work in Ukraine with the determination of the term of work in Ukraine|
|Persons who have been decided to issue documents to resolve the issue of recognition as a refugee or a person in need of additional protection||a copy of the decision on the processing of documents to resolve the issue of recognition as a refugee or a person in need of additional protection; Certificate of appeal for protection in Ukraine|
1) For legal employment of a foreigner in Ukraine, the employer must obtain a permit from the territorial Employment Center.
2) The validity of such a document from six months to three years, after the expiry of the permit is possible to extend it indefinitely.
3) The education of a foreigner matters only if he is employed as an employee of a special category, who has benefits and is not limited to the minimum wage.
4) An employer can be both a legal entity and an entrepreneur.
5) For the use of the work of a foreigner without a permit, a considerable fine is provided (at twenty times the minimum wage).
According to part one of Article 54 of the Law of Ukraine “On Private International Law” the employment relations of foreigners and stateless persons who work in Ukraine are not regulated by the law of Ukraine if:
1) foreigners and stateless persons work within the diplomatic missions of foreign states or representations of international organizations in Ukraine, unless otherwise provided by the international treaty of Ukraine;
2) foreigners and stateless persons outside of Ukraine have concluded employment contracts with foreign employers – natural or legal persons – to perform work in Ukraine, unless otherwise provided by the treaties or international agreement of Ukraine.
Part Four of Art. 3 of the Law of Ukraine “On Employment of the Population” states the following:
«Foreigners and stateless persons residing in Ukraine, recognized in Ukraine as refugees, granted asylum in Ukraine, recognized as persons in need of additional protection, granted temporary protection, as well as those who have obtained permission to immigrate to Ukraine , are entitled to employment on the grounds and in the manner established for the citizens of Ukraine.
Foreigners and stateless persons who have come to Ukraine for fixed-term employment shall be accepted by employers on the basis of a permit for use of work of foreigners and stateless persons (hereinafter – permission), issued in accordance with the procedure established by this Law, unless otherwise provided by international law. treaties of Ukraine, the consent of which was provided by the Verkhovna Rada of Ukraine. “
Also Art. 42 of the Employment Law of Ukraine stipulates that employers have the right to use the work of foreigners and stateless persons in the territory of Ukraine on the basis of the Permit issued by the territorial bodies of the central body of executive power implementing state employment policy. population and labor migration.
In addition, there are identified categories of persons who are employed without a permit, namely:
•foreigners residing in Ukraine;
•foreigners who have acquired refugee status or have been granted immigration to Ukraine;
•foreigners in need of additional protection or granted temporary protection in Ukraine;
•representatives of foreign naval (river) fleet;
•employees of foreign media accredited to work in Ukraine;
•athletes who have acquired professional status, artists and art workers to work in Ukraine by specialty;
•emergency workers to perform emergency work;
•employees of foreign representations registered in the territory of Ukraine in accordance with the procedure established by law;
•clergy who are temporarily in Ukraine at the invitation of religious organizations to carry out canonical activities;
•foreigners who came to Ukraine to participate in the implementation of international technical assistance projects;
•foreigners who came to Ukraine for teaching and / or scientific activities at higher education institutions upon their invitation;
•other foreigners in the cases stipulated by the laws and international treaties of Ukraine, the consent of which was provided by the Verkhovna Rada of Ukraine.
Please note that if the employer is convinced that the foreigner belongs to one of the categories that can be employed without obtaining a permit, he or she must have proof of the employee’s belonging to the specified category of persons to provide the said evidence to the controlling bodies.
The Law also defines certain categories of foreigners and stateless persons whose employment has certain characteristics, namely:
1) foreign highly paid professionals;
2) the founders and / or participants and / or beneficiaries (controllers) of a legal entity established in Ukraine;
3) graduates of universities that are in the top 100 in the world rankings of universities, according to the list determined by the Cabinet of Ministers of Ukraine;
4) foreign workers of creative professions;
5) foreign IT professionals.
Features of employment of these categories of foreigners are:
•lack of a statutory minimum wage requirement for such workers;
•the period for which the Employment Permit of persons of the specified categories is issued.
In other cases, in accordance with part three of Art. 42 of the Law stipulates that an employer may obtain a permit subject to payment of wages of at least:
•five minimum wages – to foreign wage earners in public associations, charities and educational establishments specified in Articles 34, 36, 37, 39, 41, 43, 48 of the Law of Ukraine on Education;
•ten minimum wages – for all other categories of employees
To sum up, every year, more and more foreigners come to work in Ukraine, according to data from the State Employment Service. If we analyze the official statistics, we can see that most of all foreign workers came to us from countries with a higher level of welfare than ours. Since other countries are actively attracting our labor force, creating better conditions for it, Ukraine also needs to prepare to be able to recruit foreign citizens in the future. The countries of Eastern Europe have already passed this path amid the best job offers from Germany, the USA, and Great Britain. For this, it is necessary to encourage foreign investment, which is accompanied by the transfer of know-how in management, to introduce new laws on the employment of foreign citizens, which will guarantee their integrity and security.
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