Employer’s Compliance With Ukrainian Military Regulations

Mid-May 2024 issued in an important turning point for serious attention to complying with military regulations in Ukraine.  At this time, two new laws came into effect, significantly increasing the responsibility of both citizens obligated for military service and their employers for violation of effective military registration rules.

The new laws include: Law No. 3543-XII “On Mobilization Preparedness and Mobilization Process” (effective as of May 18, 2024) and the Law “On Amendments to the Administrative Violations Code of Ukraine Regarding Enhancement of Liability for Violation of Military Registration Rules and Legislation on Defense, Mobilization Preparedness, and Mobilization Process” (effective as of May 19, 2024), as additionally clarified by Resolution No. 563 of the Cabinet of Ministers, dated May 16, 2024.  This article focuses on the implications of the new rules for employers with draft-eligible employees.

Legal Background: Where Obligations Arise

Currently, only one provision in the Administrative Violations Code defines an employer’s liability for violation of military registration rules: Article 210-1 “Violation of Legislation on Defense, Mobilization Training and the Mobilization Process”.  This provision does not define any particular actions (or omissions to act) that may lead to penalties, but inherently embraces a number of offences, as it arguably can be applied to any breach of obligations in this sphere imposed by other legislative acts.

Employer obligations in the sphere of defense are set forth in Article 16 of the Law “On Defense of Ukraine” (No. 1932-XII, dated December 6, 1991, as lastly amended on April 4, 2024).  Most of these obligations are aimed at companies that perform state defense orders, manufacture products or provide services for the Armed Forces of Ukraine.  However, some of the provisions apply to a wide range of companies.  In particular, legal entities are obliged to:

• Maintain personal military records of conscripts, persons liable for military service and reservists;
• Facilitate these employees’ preparation for and conscription to military service;
• Create appropriate conditions to enable employees to perform their military duties;
• Implement measures on military and patriotic education of employees.

More specific responsibilities of employers with regard to mobilization training and mobilization process are defined in Article 21 of the Law of Ukraine “On Mobilization Training and the Mobilization Process”, which include, among others:

• Cooperation with Territorial Centers for Recruitment and Social Support (hereinafter – TCRSSs), various agencies of the State Security Service and the Foreign Intelligence Service of Ukraine by assisting them with any possible requests;
• Ensuring timely notification of employees called to perform their mobilization duties;
• Contributing buildings, vehicles and other material and technical means to the Armed Forces of Ukraine and other military and civil defense agencies at the request of the authorities’ mobilization plans;
• Maintaining personal military records of conscripts, persons liable for military service and reservists employed by the company, taking actions aimed at their reservation during mobilization and special period, and providing respective reports in this regard to relevant state authorities;
• Maintaining up-to-date registration of vehicles owned by the company (which may be used for military purposes during martial law and other special periods) with respective TCRSSs.

New Amounts

What exactly has changed for employers with the new laws coming into effect?  Previously, the amount of fines for violation of defense and mobilization rules under Article 210-1 of the Administrative Violations Code varied from UAH 5,100 to UAH 8,500.  The new amounts applicable starting in mid-May are set immediately below:

A “special period” is now in effect in Ukraine.  This period started on March 18, 2014, even before the declaration of current martial law – when the Decree of the President of Ukraine № 303/2014 “On Partial Mobilization” came into effect.  The current special period includes:

• mobilization times;
• war time (the period during which military actions take place, not to be confused with officially declared martial law); and
• partial reconstruction period when military actions end.

Cases on violation of legislation in the sphere of defense, mobilization training and the mobilization process (including the cases on violation of maintenance of military records rules by employers) are handled by TCRSSs, and their officers are authorized to impose fines in accordance with the procedure prescribed by Article 235 of the Administrative Violations Code.

How to Comply to Avoid Fines

The detailed procedure for maintenance of military records can be found in the “Procedure for Organization and Maintenance of Military Records of Conscripts, Individuals Liable for Military Service and Reservists”, approved by the Order of the Cabinet of Ministers No. 1487, dated December 30, 2022 (effective as of January 5, 2023).  The principal duties under this Procedure, which employers should perform to avoid fines are as follows:

Appoint responsible person(s)

The liability to arrange and maintain military records in companies is borne by their senior managers (directors).  Specific work related to such maintenance should be entrusted to a specially appointed individuals or individuals (e.g., HR department, accounting department, etc.).

For companies that employ less than 500 conscripts, persons liable for military service and reservists, the record maintenance duties can be added to other (regular) employment duties of certain HR employees.  If the above figure is between 500 and 2,000, a special position must be created for this purpose so that the person occupying it could deal solely with this task.  If the figure is even higher, more positions should be created and combined into a special department.

Appointment of individuals requires adherence to all current labor rules and regulations (issuing relevant staff orders, amending payroll/staff schedule, defining additional remuneration for combined labor duties, etc.).  In addition, your local TCRSS should be notified on appointments within 7 days according to the approved form, which should be executed and sent to TCRSS along with a cover letter via mail or personal delivery.

Verify military documents for all new hires

All new employees, who are recognized as conscripts, individuals liable for military service and reservists, must upon hiring provide their military registration card with a special entry from a particular TCRSS (in accordance with their registered residence address), showing their effective military registration.  Upon issuance of the relevant employment order, such new hires should familiarize themselves with the military registration rules and confirm the same with their personal signature to the employer.

Information on relevant new employees should be entered into the company’s military registration records (within 5 days) and also sent to the local TCRSS in accordance with the approved form (within 7 days).

Take carefully regarded steps for female employees

For most women in Ukraine military registration is voluntary.  The only exception is for women with medical or pharmaceutical higher education degrees.  For such category, registration as women subject to military service has been mandatory from October 26, 2022.  Up until May 18, 2024, there had been a grace period for employers, prospectively until the end of 2026, during which they could treat women with relevant educational status as not eligible if they had not yet registered themselves as such by January 5, 2023.

However, this exception was cancelled by the Order of the Cabinet of Ministers No. 563, dated May 16, 2024, and currently all women with corresponding education should present their military registration cards and should be treated as eligible for enlistment to military service in all respects for purposes of company military registration records.  The latter may also apply to women who registered voluntarily although they received an education other than medical or pharmaceutical education.  In case of any female employees with the relevant education status, who have not yet registered as eligible for military service, the employer is obliged to notify their respective TCRSS about such employees.

There are certain pitfalls for the employer pertinent to this requirement.  Obviously, if a woman’s position requires medical or pharmaceutical education, the employer should be fully aware of this fact.  However, any female employee applying for or already working at any position, which does not require such qualifications, may nevertheless have a medical/pharmaceutical diploma or may have already voluntarily registered, and the employer is not entitled to require information about qualifications/experience not relevant to the current position.  The question is: how does the employer make sure that they do not violate the law by overlooking employees, who should be accounted for in their military records?

Firstly, we can recommend amending the company’s Internal Regulations to add the obligation for female employees to notify the employer about (i) their medical/pharmaceutical qualifications, if any; and (ii) voluntary military registration, if applicable.  You can also issue a separate, specified notification to the same effect, whereby all female employees would be asked to confirm this information with their personal signatures.  The same may be applied to newly hired employees – request a signed confirmation along with their work application that the individual does not have any medical/pharmaceutical qualification and has not registered voluntarily for military service.

Maintain military records

Employers are obliged to maintain military records in their companies in accordance with standard forms.  These forms include lists of personal military records and up-to-date accounting spreadsheets.

Lists, each containing specific information required by the pertinent forms, should be prepared separately for the following categories of employees:

• eligible and reserved employees of officers’ ranks;
• eligible and reserved employees of lower ranks (private corps and sergeants);
• eligible and reserved female employees;
• conscripts (under the age of 25).

The up-to-date accounting spreadsheet contains the aggregate number of service-eligible employees of each respective category prepared based on the above-mentioned lists.  Any changes in the statistics (new hires, dismissals, drafted to military service, etc.) should be entered into the spreadsheet within 5 days.  The lists should also be amended within 5 days if any employees are hired or dismissed.  However, if any employees are to be removed from military records for any reason (drafted to military service, reached the age limit for military service, excluded due to health, etc.), they should remain on the current lists until the end of calendar year.

Some employees may also move from one list to another.  For example, if an individual reaches the age of 25 and registers with TCRSS as eligible for military service, then they should be referred to the respective eligible and reserved employees list.  Or, there may be a rank upgrade entailing referral of an employee to the officers list.

Both the lists and the spreadsheet may be maintained in electronic format throughout the year; however, once per year, by January 25^th, the above documents containing information effective as of January 1^st should be printed out, signed by the responsible employee (both documents) and the company’s senior executive officer (lists only) and duly registered within the company’s internal HR document system.

Reconcile military registration data with TCRSS, promptly notify about changes and comply during audits

Military registration data contained in the aforementioned lists and spreadsheet should be regularly, at least once per year, verified and certified internally by comparing the information contained therein with the primary information from all employees’ personal documents (passport, military registration card, etc.).  This way the employer will be prepared to reconcile their military records with the records currently held by the TCRSS.  “External” reconciliation requires verification of data against the record of all TCRSSs with which your employees may be registered according to their place of residence and of the local TCRSSs according to your company’s legal address.

In the interim, the employer is also obliged to promptly notify the TCRSS about the changes in their employees’ registration data, in particular: name, passport details, residency address, family status, education and position in the company.  Such changes should be reported by the 5^th of the month following the month during which the changes occurred.

Finally, the company may from time to time be subject to audits by a number of military and civil authorities (not only TCRSSs!) aimed at verification of compliance with all rules and regulations related to maintenance of military records.  Such audits may be both regularly scheduled and unscheduled.  The issues to be audited will be announced to the company at least 10 days prior to the audit.  These issues may include appointment of responsible person(s) for maintenance of military records and their qualifications, adherence to the procedures of hiring and dismissal of employees eligible for military service and respective notification of TCRSS, availability and correct execution of all documents related to maintenance of military records, adherence to reservation rules, etc.

Notify employees about summons to TCRSSs

TCRSS may request an employer to notify certain employee(s) about a request to appear before the relevant TCRSS on a specifically appointed date and time and to serve the relevant employee(s) with these official summonses.  This requirement has always been present in the Procedure from the beginning, but recent amendments clarified the procedure for employers to some extent.

In order to prove compliance with this norm, it is important to take the following steps:

• register the request for notification of employee(s) in the incoming mail list (to fix the exact date and time of receipt);
• issue an internal order on notification of employee(s), preferably on the same day or on the next day latest, if the request came in late during the previous day;
• ask the summoned employee(s) to sign the order and serve them their summons;
• should the summoned employee(s) refuse to take and/or sign the order the summons, read them the order aloud and ask two witnesses to confirm this fact in a respective internal act;
• if the summoned employee(s) are not available to sign the order personally due to (i) remote work; (ii) sick leave; (iii) business trip or (iv) vacation, then the employer should send them such order for signature via registered mail;
• send (i) a copy of the order and, if necessary, the act on refusal to sign, (ii) the documents confirming the reasons for employee’s absence (order on vacation, business trip or remote mode of work, copy of sick leave), if applicable, and (iii) documents confirming notification of an absent employee (mail receipt) to the TCRSS within 3 days from receipt of the TCRSS’s request;
• if you are aware that a summoned employee did not appear at the TCRSS in due time (i.e., they were at work during this time or they confirmed so in response to your direct question), notify the TCRSS about same.

Raise employees’ awareness

One of the employer’s obligations is to raise awareness of employees about military registration and compliance.  The law does not contain specific instructions with regard to the approach, so there is room for creativity.  At a minimum, you can print out the pertinent extracts from the applicable laws and regulations, and display them at a designated information point.  If you wish, you can also plan some thematic meetings where employees can ask their questions on issues they do not fully understand or allow them to schedule private consultations with the individual responsible for maintenance of military records.

Conclusion

The rules set for employers by these challenging times are not always easy to comprehend, let alone to follow to the letter in practice.  Meticulous maintenance of military records is a relative novelty for Ukraine, and some employers continue to discount these requirements at the risk of being fined.  That is to say, until recently, as the increased amount of fines now serves as incentive to organize the relevant personnel files within the company.  If you feel that it is difficult or overwhelming to independently cope with these legislative changes, we recommend asking certified professionals for advice and assistance.

By Frishberg & Partners, Ukraine, a Transatlantic Law International Affiliated Firm. 

For further information or for any assistance please contact ukraine@transatlanticlaw.com

Disclaimer: Transatlantic Law International Limited is a UK registered limited liability company providing international business and legal solutions through its own resources and the expertise of over 105 affiliated independent law firms in over 95 countries worldwide. This article is for background information only and provided in the context of the applicable law when published and does not constitute legal advice and cannot be relied on as such for any matter. Legal advice may be provided subject to the retention of Transatlantic Law International Limited’s services and its governing terms and conditions of service. Transatlantic Law International Limited, based at 84 Brook Street, London W1K 5EH, United Kingdom, is registered with Companies House, Reg Nr. 361484, with its registered address at 83 Cambridge Street, London SW1V 4PS, United Kingdom.