The President of Ukraine has signed the Law of Ukraine “On Amendments to Certain Legislative Acts Concerning the Improvement of Legal Regulation of Remote Work, Work from Home and Flexible Working Hours” No. 1213-IX of February 4, 2021 (hereinafter – the Law).
The Law introduces two independent types (forms) of work – remote and home-based and provides for the improvement of legal relations in the field of their regulation. This normative legal act gives the employer the right to receive information about the place of residence or other place of choice of the employee where the job function will be performed (for the purpose of proper registration of the employee for remote work) when concluding an employment contract for remote or work from.
The Law provides an opportunity to acquaint the employee with the rules of internal labor regulations, collective agreement, local regulations of the employer, notifications and other documents with which the employee must be acquainted in writing by exchanging electronic documents.
According to the Law, an employee can remotely get acquainted with the requirements for labor protection through the use of modern information and communication technologies, including video communication.
The Law provides for the employee's ability to combine remote work with the performance of work in the normal mode at workplaces on the premises or on the territory of the employer.
The Law obliges the owner or the body authorized to ensure safe and harmless working conditions at workplaces on the territory and in the premises of the owner.
The Law amended the Labor Code of Ukraine and the Law of Ukraine “On Labor Protection”.
This Law enters into force on the day following the day of its publication.
The President of Ukraine has signed the Law of Ukraine “On Amendments to the Commercial Code of Ukraine on Elimination of Legal Conflicts in the Requirements to the Statutes of Limited and Additional Liability Companies” No. 1183-IX of February 3, 2021 (hereinafter – the Law).
The Law eliminates the conflict between the Law of Ukraine “On Limited and Additional Liability Companies” and the Commercial Code of Ukraine (hereinafter – the Commercial Code) in terms of mandatory requirements for the statutes of limited liability companies and additional liability companies, which is that the Commercial Code contains a requirement to indicate in the constituent documents of these companies the share of members of companies in its authorized capital, and in Law of Ukraine “On Limited and Additional Liability Companies” does not have such a requirement.
The Law excludes from parts 3, 4 of Art. 80 of the Commercial Code provisions on determining in the constituent documents of these companies the size of the shares of participants in the authorized capital.
The Law in Part 4 of Art. 82 of the Commercial Code is set out in a new wording, according to which the list of information to be contained in the statute of a limited liability company and an additional liability company is determined exclusively by the Law of Ukraine “On Limited and Additional Liability Companies”.
The statute of limited liability company, additional liability company may also contain other information that does not contradict the law.
The State Tax Service of Ukraine in category 101.04 “ЗІР” answered the following question: “Are the services for the provision of communal property by the lessor subject to VAT and how is the tax invoice for such transactions prepared?”.
Services for the provision of communal property by the lessor are subject to value added tax (hereinafter – VAT), regardless of whether the tenant distributes the amount of rent or transfers it to the lessor’s account in full (except for transactions specified in paragraph 196.1.15 of the Tax Code of Ukraine; hereinafter – the Tax Code).
In particular, the operation of paying rent for leased communal property is not subject to taxation if the following conditions are met:
- an integral property complex of a communal enterprise (its structural subdivision) is leased;
- the lessor under the contract is a local government body;
- rent payments are credited in full to the local budget.
At the date of VAT liability, the lessor utility (regardless of whether the lessee distributes the amount of rent or transfers it to the lessor's account in full) draws up a tax invoice for the entire amount of rent provided for in the lease agreement.
The State Tax Service of Ukraine in category 129.05 “ЗІР” has explained what period of validity of individual tax advice provided in paper or electronic form, and whether the taxpayer is released from liability for tax offenses, if acted in accordance with the received individual tax advice.
In accordance with paragraph 14.1.172 of the Tax Code an individual tax advice is an explanation of the controlling authority, provided to the taxpayer on the practical application of certain provisions of tax and other legislation, supervision of which is entrusted to the controlling authority, and registered in a single register of individual tax advice.
In particular, at the option of the taxpayer, individual tax advice is provided in oral, written or electronic form (item 52.3 of the Tax Code).
Individual tax advice is individual in nature and can be used only by the taxpayer to whom such advice is provided (item 52.2 of the Tax Code).
Individual tax advice provided in written or electronic form is subject to registration in a single register of individual tax advice and posted on the official website of the central executive body implementing state tax policy, without specifying the name (surname, first name) of the taxpayer, EDRPOU code (registration number of the registration card) and its tax address (paragraph 4, item 52.4 of the Tax Code).
Item 53.1 of the Tax Code stipulates that in case the provisions of individual tax advice contradict the provisions of general tax advice, the provisions of general tax advice apply.
A taxpayer and/or a tax agent who acted in accordance with tax advice are not exempt from the obligation to pay the tax liability specified by the Tax Code.
According to paragraphs 1 and 2, item 53.2 the Tax Code, the taxpayer may appeal to the court, in particular, written or electronic individual tax advice provided as a legal act of individual action, which, in the opinion of such taxpayer, contrary to the rules or content of the tax or fee.
The cancellation by the court, in particular, of individual tax advice is the basis for the provision of new tax advice, taking into account the conclusions of the court.
Therefore, individual tax advice provided to a taxpayer in written or electronic form is individual in nature and can be applied only by such taxpayer from the date of its provision until the moment of change or cancellation.
With regard to the liability of the taxpayer for the commission of tax offenses, which acted in accordance with the individual tax advice, paragraph 39 of section 10 chapter XX “Transitional Provisions” of the Tax Code provides that individual tax advice provided by the controlling authority in writing or electronically before March 31, 2017 (inclusive) releases the taxpayer (tax agent and/or its official) from liability, including financial (sanctions and/or fines), for acts that contain signs of a tax offense committed before December 31, 2017 (inclusive).
From January 1, 2018, individual tax advice provided by the controlling authority in writing or electronically until March 31, 2017 (inclusive) is not applicable.
In addition, in accordance with paragraph 112.8.2 of the Tax Code the circumstances that exempt from financial liability for tax offenses and violations of other legislation, the supervision of which is entrusted to the controlling authorities, is the commission of an act (action or omission) by a person who acted in accordance with individual tax advice provided to such taxpayer in written or electronic form, provided that such advice is registered in a single register of individual tax advice, or before the general tax advice and/or the opinion of the joint chamber, the Grand Chamber of the Supreme Court on the application of the rule of law retreated.
The penalty is not accrued, and the accrued penalty is subject to cancellation in case of an act (action or omission) by a person who acted in accordance with individual or generalized tax advice and/or conclusion on the application of the law of the Supreme Court of Ukraine (item 129.9.2 of the Tax Code).
However, in particular, the release of a person from financial liability for a tax offense does not release from the tax obligation (item 112.6 of the Tax Code).
The State Labor Service of Ukraine has explained whether the employees have the right to work in the evening and night shifts for additional payment and additional leave.
Shift work refers to a method of organizing work in two, three or four shifts, which can be continuous or intermittent, in which employees successively change each other in the same jobs in accordance with the shift schedule (work), which is introduced in cases when the duration of the production process exceeds the allowable duration of daily work, as well as for the purpose of more efficient use of equipment, increase in the volume of products or services provided.
In addition to the shift schedule, the start and end time of daily work (shift) should be provided by the rules of internal labor regulations.
Multi-shift mode of operation is a mode when at the enterprise, institution, organization work during the day is performed in two or more shifts, the duration of each of them should not be less than the statutory length of the working day.
With a multi-shift mode of operation, the company independently establishes in the collective agreement the conditions of introduction and the amount of allowances, surcharges (including for evening work), bonuses, rewards and other incentive, compensation and guarantee payments, in compliance with the rules and guarantees provided by law, general, sectoral (intersectoral) and territorial agreements.
In particular, the General Agreement on the Regulation of Basic Principles and Norms of Implementation of Socio-Economic Policy and Labor Relations in Ukraine of August 23, 2016 establishes a surcharge of 20% of the hourly rate (salary) for each hour of work in the evening from 18:00 to 22:00 (subject to multi-shift mode).
For enterprises that are within the scope of general, sectoral (intersectoral), territorial agreements, the establishment of this surcharge in the amount not lower than specified in the agreements in the collective agreement is mandatory.
The current legislation does not provide for leave for work in the evening and night.
If the schedule of work (shift schedule) of employees provides for work at night, its duration is included in the duration of work (shift) of the employee. Compensation for work in such conditions is a surcharge for work at night, which is calculated for the actual hours worked at night not less than 20% of the tariff rate (salary) for each hour of work at night (Article 108 of the Labor Code of Ukraine). Below this limit or not pay at all at night is prohibited. Surcharge for night work is accrued at the end of each month, regardless of the accounting period.
Please note that evening hours are from 18:00 to 22:00; night hours – from 22:00 to 06:00.
In the timesheet, working hours in the evening are indicated by the code “EH” (03), at night – by the code “NH” (04).
Only night work is regulated at the legislative level. The Code of Labor Laws of Ukraine does not contain norms on evening time.
The surcharge for work in the evening provided by the General Agreement is not made if the mode of work of employees does not belong to the multi-shift mode (for example, the work of guards on the appropriate schedule of work); is multivariate, but the company is not subject to the provisions of the General Agreement, and such surcharge is not provided for in the collective agreement (other internal documents of the company).
