Support for Improvement in Governance and Management A joint initiative of the OECD and the EU, principally financed by the EU
COMMENTS TO THE DRAFT LAW OF UKRAINE ON CIVIL SERVICE
This document has been produced with the financial assistance of the European Union. The views expressed herein can in no way be taken to reflect the official opinion of the European Union, and do not necessarily reflect the views of the OECD and its Member countries or of the beneficiary countries participating in the Sigma Programme
Introduction ............................................................................................................................... 3
General Comments ................................................................................................................... 3 1.
Aim of the law ...................................................................................................................... 3
The scope of the law ............................................................................................................. 4
Content of the draft ............................................................................................................... 4
Cross referencing and other technical issues ...................................................................... 5
The definitions ...................................................................................................................... 5
Limited and unlimited contracts .......................................................................................... 6
Specific Comments ............................................................................................................... 6
Definitions (Article 1) .......................................................................................................... 6
Scope of the law (Article 2) ................................................................................................. 7
Principles (Article 3) ............................................................................................................ 8
Legal regulations (Article 4) ................................................................................................ 8
Financing (Article 5) ............................................................................................................ 8
Classification (Article 6) ...................................................................................................... 8
Management of the civil service (Section II) ..................................................................... 9
Legal status of the civil servant(Section III) ...................................................................... 9
Entry in the civil service (Section IV – chapter 1) ............................................................ 9
Competition for vacant positions (Section IV – chapter 2) ......................................... 11
Appointment to a civil service position (Section IV – chapter 3) .............................. 12
Performance of civil service work (Section IV – chapter 4) ....................................... 12
Termination of the civil service (Section V) ................................................................ 15
Labour remuneration, incentives and social guarantees (Section VI) ........................ 15
Civil servants Working Hours, rest time and leave (Section VII) .............................. 18
Disciplinary and property liability (Section VIII) ....................................................... 18
Transitional provisions ................................................................................................... 20
Conclusion ........................................................................................................................... 21
Sigma was requested by the EU Delegation to Ukraine to comment the current draft Law on Civil Service (draft of 7 July 2011). The current draft is the result of the discussions by the Parliament on the initial draft law adopted as first reading. During the past years Ukraine has made several attempts for adopting a new law on Civil Service able to tackle the main problems as identified by external observers and donors, as well as by internal experts and organizations of the civil society. In fact, in the absence of a merit-based civil service system, the Ukrainian civil service has been assessed as politicized, unstable, demotivated, unfairly paid, lacking professionalism and required skills, prone to corruption and poorly managed. The purpose of these comments is to analyze to which extent the current draft is able to tackle the main identified problems and to contribute for creating a modern and effective civil service system. In addition to the written comments Sigma is available for discussing the opinion on the draft law and for contributing for its improvement. In spite of the detailed comments, they are not covering all the possible questions and doubts. Some of the remarks and comments to the draft law may be irrelevant as there could be misinterpretations due to the translation of the text which may have lead to ambiguous wording or misunderstandings.
1. Aim of the law As understood, the overall objective of the law is to create and/or develop a professional meritbased civil service which will be the back bone of future economic development of the country. The draft law foresees a very decentralized civil service system where every agency decides on recruitment requirements, does decide on the content of recruitment tests and has also a rather large influence on classification of positions. Such a system hampers mobility of civil servants between different agencies (as agencies may not trust recruitment quality of other agencies), and also cooperation and coordination between the various administrative bodies, besides the fact that it may produce a public administration where civil servants of the same group differ considerably in quality and capacity and therefore the tasks executed/services delivered may be of different quality, despite the very general requirement of complete higher education. It is very regrettable that a requirement for entering the top levels of the administration do not include as an obligation “experience in the public service”. Another issue which may hamper unified implementation is the fact that the draft in many places states the possibility to have different regulations by law or by specific law. The number of times this general clause “unless otherwise specified by the law” is introduced in the text leads to the impression that the draft in fact does not really regulate what it intends to regulate
2. The scope of the law Article 2 is intended to regulate the legal status of a civil servant, including recruitment to the service and termination of the service. The legal technique used for establishing the horizontal and vertical scope of the law is rather confusing. When the law is too much detailed and descriptive – as it is the current draft - the risk of creating legal holes is exacerbated. As a consequence, implementation is a demanding and almost impossible task and administrative and judicial conflicts increase. This is a common problem regarding the Ukrainian legislation which requires consistent action for change. In order to define its scope properly – which is of fundamental importance for its clarity - the draft law must clearly establish: the vertical scope of the civil service (the functional definition of civil servant and, if needed, which public functions are not civil service positions in order to clarify the positive scope of the civil service) the horizontal scope of the civil service in order to clarify which public institutions and levels of administration (central, regional, local) are within the scope of the law. The current draft is trying to follow this approach but requires improvement. In addition, the real scope of the law includes several other topics which would be better regulated in other legislation or in guidelines or internal rules of procedures. These issues include inter alia regulations on: appointments of advisors to politicians - such advisors are commonly not civil servants as their task is just not to advise impartially but in line with party politics. It must be clearly stated that to include political advisors within the scope of the law on civil service is not acceptable according to European standards and practices since it put at risk professionalism and impartiality which are of fundamental importance for raising trust of citizens in civil service. the content of job announcements which does not belong in a law. In the scope of the law also the territorial scope, i.e. Ukraine and Crimea, should be included; this would make the permanent repetition of “Ukraine and the autonomous Republic of Crimea” superfluous.
3. Content of the draft The draft mixes substantive and organizational issues; it also seems to regulate issues which would have been better regulated by decree as they are internal administrative issues and therefore do not need legal quality. Only the basic legal relationship between civil servants and the state as “employer” needs to be regulated by law. If it is the aim of the drafters to regulate organizational issues by this law, e.g. the specially designed central executive authority for development and implementation of public policy on
civil service1, then the tasks, etc. would be more transparent if it would be regulated in a special chapter. On the other hand, since there is a special law on this authority, the tasks mentioned in this law in various places should be clarified by clear cross-referencing to the law on the special agency. As the law is drafted now, it is difficult to grasp what this authority is really doing and what kind of responsibilities and intervention rights it has. In several places in the draft the wording “standard” procedures/profiles, etc. is used. The way this expression is used seems to imply that sometimes they can be changed at will and sometimes the intention is that they are binding (see art.8; art 9; art 16/2; art.20; art. 29, etc.) Recruitment and promotion would need to be clearly separated as the procedures and the requirements are different. The question is whether or not the standard competition regulations do take this into account and whether or not internal competition for promotion (internal meaning within the public service and not only one agency) takes priority over open competition. Classification of positions is linked to education. According to art. 30 there seems to be a possibility for civil servants to study at relevant higher education institutions. It is unclear if civil servants who thus obtain a university degree have a right to a higher classified position.
4. Cross referencing and other technical issues The draft includes many references such as “if not regulated differently by the law”. Such unclear references create uncertainty. If the civil service law regulates the status of civil servants, then the issues mentioned in the scope of the law should be regulated completely in this law and annexed decrees which should clearly and exactly be referenced in the civil service law. Not all paragraphs and/or sub-paragraphs are numbered which will make it difficult to exactly cite the legal base for certain decisions. The logical structure of the law is not quite clear (e.g. why is pension before disciplinary? Why termination of civil service is included before salaries, discipline and discipline?) In most countries disciplinary rules apply to a certain degree also to pensioners; this seems however not intended in Ukraine. So if disciplinary measures are only applied to active civil servants (which should be reconsidered) then disciplinary should come before pensions. On the other hand, as many pension rules are linked to the general pensions, it could be more practical to include civil service pensions in the general law on pensions under a special chapter.
5. The definitions Whether or not a law should include definitions at the beginning depends on the drafting tradition of a country. If definitions are put at the beginning, which seems more common in the AngloSaxon tradition, then however the definition should be useful, clear and actually used in the text of the law. Moreover, if there is a special chapter for definitions, then all of the definitions should be in this chapter; this is however not the case, see e.g. art 50. The definitions proposed in this law are neither always clear (maybe due to translation) nor are they constantly used in the text. Some definitions could be useful which however are not given (public agency, for instance). 1
Which is the National Agency of Ukraine for Civil Service (NACS), created by the decree of the President of Ukraine no. 769/2011 (18/11/2011)
E.g. in general it is not allowed to define one notion “civil service” with the help of “civil servant“ and in the next paragraph define “civil servant” with the help of “civil service”. The tasks then defined seem not to include execution of laws. The typical sovereignty rights and task of the state seem not to be seen as civil service, such as ensuring law and order. To interpret public services in a way that it includes police, land registry, urban planning and e.g. involved expropriation seems a bit difficult. The role of the manager of the civil service in relation to the personnel department and to the special agency remains despite the definition unclear. Moreover, it is not understandable why in the definitions “the manager of the civil service” is defined and then in the text of the draft this manager is redefined as “chief of staff” (art.8). The definition of complete higher education, basic higher education and undergraduate education seems to be missing. Whether or not e.g. complete higher education in arts, sports or history would qualify may need to be regulated somewhere, too. For the sake of simplification of the draft, it could also have been useful to introduce abbreviations for certain institutions, e.g. the National Academy of Public Administration under the President or for the “central executive authority for development and implementation of public policy on civil service”.
6. Limited and unlimited contracts The possibility for limited and unlimited contracts is introduced in the law without giving a legal reason when to use which contract. Therefore it seems to be at the discretion of the manager to offer either a limited or an unlimited contract. This kind of discretion opens possibilities for corruption and makes civil servants very dependent on their superiors. The probation period seems not to depend on the kind of the contract which is unusual. In general, probation periods should be obligatory and should not depend on the discretion of the competition commission. In addition, the probation period seems too short. Again there is no guidance given under which circumstances, i.e. for which reasons the probation period should be longer or shorter; the provision allows for complete arbitrariness of the competition commission which seems not acceptable. Discretion should always have indicators for guidance as otherwise arbitrary decisions are possible.
Specific Comments Definitions (Article 1)
As already stated above, if the definitions are seen as an important part of the law, then they should be reworked. Besides the fact that civil service is explained by civil servants and vice versa, neither the institutions which can appoint civil servants nor the tasks are clear. In 1) control functions (i.e. internal and external audit, inspection, etc.) are not mentioned as institutions. The paragraph talks only of agencies; neither ministries nor the presidential administration are usually agencies; agencies are usually subordinated to ministries or the president or the prime minister as agencies are in general executing and not developing policies.
In 2) the tasks seem to exclude regulatory functions which in fact were the core functions of the civil service (service delivery came much later); however here supervision is included, but again not control (ex post). The notion of administrative services is somehow unclear (social benefits or pensions seem not to fall under this definition). That the salary is paid from the state budget is not specific as also the salaries for support functions should be paid from the state budget; the exception “unless otherwise specified by the law” seems strange. 3) “order” seems not to need a definition. 4) Paragraphs 4 and 9 are complementary and it would be better if they go together. 6) and 11) define the same thing differently; in fact a definition is not necessary as not only job duties but also most of the other issues are defined again later. 8) the level of professional competence has only very few differentiations in the body of the law; it is therefore unclear why they are listed and why there is not an entry level and the possibility for promotion in the law. 12) appointment should be made in the name of the Republic. Therefore the definition is misleading as in the text of the law the appointing entity is further defined as the civil service manager (which in fact is wrong). It should be the administration in the name of the Republic. Again this is explained in the body of the law again, including the exception for the group I.
Scope of the law (Article 2) Most of what is mentioned here would be superfluous if the definition of the civil servant were more concise (non-political, recruited on merit). Politicians would then be automatically excluded. 4) It is unclear how an elected person can hold a permanent position. 6) The mention to staff in public prosecution who does not have ranks seems unclear. 8) The provision is unclear: that enterprises and economic institutions should not be civil service is clear, but government institutions are usually delivering some kind of service; if new institutions will be created in which staff should have civil service status, the law would need to be changed. It would therefore be better to find a more general wording. In any case it is not a good drafting technique to exclude and then to make exceptions from exclusion. As regards employment centers the formulation seems difficult. Does it mean that no institution and organization in Crimea has civil servants, except a few persons in the employment centers? This would not be in line with the rest of the draft where Crimea is usually included. Para 3: assuming that maintenance functions is identical with support functions, these functions should be defined centrally in order to avoid that the same functions are civil service functions in one administrative body while they are classified as support functions in another one.
Principles (Article 3)
Instead of patriotism which is not really a principle, it may be useful to introduce fairness and proportionality. Political neutrality is fine but impartiality would be better. Morality sounds strange and may be replaced by ethical behavior.
Legal regulations (Article 4)
It seems unlikely that so many institutions can produce legal regulations; if that were true, the civil service legislation cannot guarantee a general unified civil service. Para 2: the general exception “unless otherwise specified by a special law” should be avoided. The civil service law should regulate the status and if necessary also clarify exceptions.
Financing (Article 5)
The financing has nothing to do with the scope of the law and should therefore not be in this law.
Classification (Article 6)
It is unclear what group I include. If the word “agency” includes ministries, then the heads of ministries are definitely politicians and not civil servants. If agencies do not include ministries, then it seems that the staff in ministries are not civil servants which seems impossible as they should be the ones who prepare policies, draft laws etc. So either the wording of the law is unclear or the translation has flaws. It is not quite clear why so many groups and sub groups are needed. According to the definitions a “structural unit” is a civil service position (5)); here it seems to mean something different. It is also unclear what the difference between an independent structural unit and a structural unit is. Para 2: under the subgroups are mentioned civil service positions which in line with Article 2/8 cannot have civil service positions, e.g. Central Bank and Human Rights Commissioner. Para 3 seems to refer to political positions, especially advisors and representatives of the President; one would assume that their position is linked to the mandate of the president which makes them political appointees. It is unclear the reference to assistants, advisors, commissioners, heads and staff of patronage services (it seems that they are mainly political appointees). If this is the case they are not recruited and submitted to the same rules, rights and obligations as established for civil servants, and therefore they should not be civil servants and should not be under this law. As abovementioned, this is a key issue for building a professional civil service.
Management of the civil service (Section II)
Article 8 As stated before, it is unclear why there is a manager of the civil service and a personnel service. It seems bad drafting technique when there is a definition for CS manager in the definition chapter and then here there is a new definition, namely “chief of staff”. The distribution of responsibilities between the CS manager and the “central executive authority” is not clear. It seems that the CS manager has too much discretion in regard of classification of positions (see para 2) A civil servant serves the state, therefore the CS manager cannot be the employer. Basically the law under this header provides a job description which should not be in the law and also contradicts the provision under para 1 of art. 8 according to which the competence profile should be provided by the executive authority. Moreover, each manager has to ensure that his/her unit is performing well. Rewards and disciplinary action should not depend on one single person. Art. 9: the personnel service should do HRM and not personnel administration.
Legal status of the civil servant(Section III)
There should be a right to resist unlawful orders, not just an obligation. As concerns duties, there should also be an obligation not to disclose personal information received from individuals (i.e. data protection). The obligations do not only include legislative requirements but also guideline and follow order. Follow orders should be under duties otherwise the following art (12) does not make sense. Art. 13 No right to strike, as a general rule, is not in line with the International Labor Organisation (ILO) rules. This is a sensitive issue which usually relates with the constitutional law as well. At least, it must be assessed if such restriction is allowed by the Constitution. Art. 14 The complaint to the civil service manager without a right to have a judicial review seems not sufficient. Only the judicial review guarantees an independent decision (provided that the judiciary has the required conditions for this purpose). Para 3 it is unclear where the “internal investigation” is specified by law. Transparent legislation calls for clear cross referencing.
Entry in the civil service (Section IV – chapter 1)
As already commented, this part of the draft law is too detailed. A significant part of the draft could be part of secondary legislation in order to simplify the current draft and to make it simpler to introduce amendments when necessary.
Art.15 Para 2, 1): who decides on the limited capacity? 4): does this mean that one year and one day later the person can enter the civil service? It seems too short. Para 3: but if the person would become the superior can she/he be appointed? The exceptions with regard to teaching, etc. are understandable but civil service is a full time job. Therefore side jobs will need a special treatment and should not interfere with the obligation to work full time; as it is regulated now it seems too generous. The second part of para 4 seems to be in the wrong place. Incompatibilities need a specific article even if they are regulated in a special law. Art. 16 This article is too lengthy; it is unclear why every sub-group is mentioned if the subgroups have identical requirements. Moreover, there is no explanation for complete or basic higher education or undergraduate education. If experience in the civil service is needed, then a new and higher position would be a promotion and not entry; it seems that a clear distinction between entering and promotion is missing. It would need to be clarified somewhere that internal promotion has priority over recruitment from outside the service. It is demotivating if higher positions are usually filled from outside; moreover politicization is more likely if all management positions can be filled from the outside; finally public administration is difficult to learn and cannot easily be done by private sector managers. The difference between the appointing entity and the civil service manager is not quite clear. In fact the professional competence level for the groups should be fixed by the central authority. Para 3: this para seems to imply that the competence level can be changed in view of the person one wants to hire; in reality the job should define the competence level and that should remain the same much longer than just a year. This is an important issue for avoiding adjustments of the requirements for facilitating favoritism in recruitment. Art. 17: most what follows is promotion rules and not entry. It is a bit disturbing that in para 2 again it is stated either the procedure in this law is applied or another one; such rules are against legal certainty and transparency. If a law always allows for all kind of exceptions, the law does not regulate anything. As a consequence, the regulation in the law could also just be a guideline and not a law. Para 2: as the persons in Art. 6 p.3 are in fact political advisors (except for the court advisors who should have a competition) they cannot be civil servants and therefore should not be regulated in this law.
Art.19 If a person continues to work in the civil service after the promotion, official relations continue, they do not commence.
10. Competition for vacant positions (Section IV – chapter 2) The competition commissions may also include someone from the central executive authority or at least they must report to it. If this authority is in charge of civil service policy it has to be able to monitor implementation. If a competition commission is created for recruitment, it is difficult to understand why then only part of the commission has to be present. The commission should have the same members for all applicants, otherwise the candidates would not have the same chances and the principle of equal access would be violated. Para 4: does this para mean that there will be two years the same questions or that different questions can be asked following the same general program? In the first case this will mean that all candidates know the question and everybody passes; so the selection will be solely based on the interview and the result rather arbitrary. Art. 21 Do this standard regulations already exist? The content of para 1 and the first sentence of para 2 seem similar. In addition, it seems that “authority” and “appointing entity” are the same thing. It is difficult to understand why the competition announcement shall be published no later than within a month from the emergence of a vacancy. The decision about the opportunity must be based on a proper HRM policy which should consider factors like need, costs, other managerial options, etc. Furthermore, there is no sanction if the announcement is not made within the prescribed period. Para 3 The closing date for the applications is missing; Fixed term and indefinite contract appear here for the first time and no reason is given when one would open which competition. In general, the content of a vacancy announcement does not belong in a law. Art.22 If the person is already in the civil service most of the requirements are superfluous and only create unnecessary costs for the applicant. Even for new entrants most papers could be submitted after they have passed the competition, especially those where one has to pay for.
It is interesting that no CV is required nor a motivation letter explaining why the person thinks that he/she can do the job. As least with regard to persons coming from outside the service this could be helpful for the selection. It is unclear why there has to be a personal file and a work book – apparently both have the same function. Art. 23 Sub para 1 and 2: the three days delays seems too short ; if there are many applicants the interviews etc. may take a few days and then the delay cannot be observed. Moreover, if then the special inspection will check the candidate, why should the candidate get first info that he was accepted only to possibly receive within one month that he was rejected. Sub para 3 There seems no reason why more than the decision should be in the personal file Art 24 All these details should be in a decree. It is unclear why not just one candidate can be tested and interviewed; finally it is the job requirements against which the candidate is tested which he/she either fulfills or not. If there are more candidates it may well happen that none fulfills the requirements. Para 2 has sub-paras but no numbering; it will therefore be difficult to cite the para. Sub-para 3 sounds strange as even if there is only a single candidate he needs to be given a chance.
11. Appointment to a civil service position (Section IV – chapter 3) Sub para 1: it is unclear who in the agency will do the appointment as it seems group I is the top position and therefore in some agencies there may not be a superior who could do it. As a delay is given only in sub para 2 it seems not absolutely clear if also the special inspection in para 2 is excluding the top level civil servant in group I. Para 3: creates the question if the internal service rules in public agencies are unified. If not also a civil servant coming from another agency would need to be familiarized with them. Art.26 As already stated under the general comments, the trial period seems too short; moreover, also the top positions should have a trial period. This would be in line with the recent developments in most EU civil services.
12. Performance of civil service work (Section IV – chapter 4) Art. 27 If this chapter is correctly understood then the “ranks” are in fact salary steps which, following para 6, should be allocated every 2 year (salary progression). However, as none of the sub groups has more than 3 ranks it is unclear how there can be enough ranks to allocate them every two years. The more as it seems impossible to guarantee that every civil servant will move up to the next subgroup every 6 years.
One important issue must be taken into consideration: the fiscal impact of such progression. Automatic progression may be impossible mainly in periods of budgetary constraints due to economic crisis. If we clearly understand the planned system it may be better to prevent such problem. Para 9 it is unclear why the ranks have to noted in both, the personal file and the work book. Art 28 These organizational questions should not be regulated by law. The civil service law should regulate the number of working hours per week and the annual holidays. If there are standard internal service regulations, the question arises in which relationship the standard regulation are with regard to the internal regulations of an agency. Can the internal regulations contradict the standard one? In any case, if possible there should not be different internal service regulations. What is a â€œprimaryâ€? trade union? Does it refers to the lower level unit of a trade union? Para 3: this was already stated in art.25/ 3. Art 29 As the tasks of the civil service manager and the personnel office are described in this law (which actually is not necessary or useful as according to the scope it is a law on civil servants and not on organization of the civil service) it is surprising that in this article career planning appears for the first time. Is it intentional that civil servants of group I are not appraised? As there are 4 sub-groups, some appraisal should be possible and moreover also this group may need training and may include bad performers. Para 3: seems to exclude managers of simple structural units. If it is the direct supervisor who does the appraisal, it should also always be the direct supervisor who gives the recommendations, whether or not the structural unit is independent. The dismissal if after 6 month the same supervisor provides another bad appraisal is not in line with good practice. As a better solution, the civil servant should be transferred to another supervisor for another trial period and then, if there is again a bad appraisal, there should be a disciplinary procedure (the more as bad performance is noted as a disciplinary offence). Finally the civil servant should have a possibility to appeal against termination. Para 6: in fact the group mentioned in Art 6 part 3 should not be in this law as their tasks are not civil service tasks. Art. 31, art.32 The wording in these articles seems not exact (maybe due to translation). Transfer is commonly used for horizontal mobility, i.e. remaining in the same sub group and rank, but executing a different task of the same level. The word promotion is commonly not used for changing ranks as this change does not imply superior tasks.
Art.31 para 2 should be self-evident if it were stated that promotion (as well as recruitment) should be based on merit. Art.32 para 2 does this imply that there is no competition but only an application? Para 3: it would seem advisable that competition, including internal competition should be obligatory. If this were the case, para 3 would be just an interim provision until all positions have been filled by competition. Para 4: the delay seems too short; moreover, it seems unlikely that the civil servants can solve such a situation by themselves; it has to be solved by the personnel department. In principle, it must be possible to solve such a situation. To offer dismissal as a solution opens a door to arbitrary behavior for the personnel manager. Para 5: it would have been easier to state â€œcatastrophesâ€? instead of enumerating (as enumerations usually create loopholes). Para 6: rotation should be foreseen for all groups as a means of human resources management. Art 34 Dismissals due to changes in essential service conditions must be handled carefully since they may open the door to arbitrariness. Some conditions shall be established in order to reach a good balance between protection of public employment and the reasonable needs of the administration. In case legislation was changed and job conditions were changed due to this new legislation and the civil servant refuses to comply, dismissal seems possible; however if the internal organization was changed then he may refuse and have a right to be transferred to a job where e.g. he/she could continue to work part time. As it stands, one may conclude that the article is not in line with general legal principles. Art. 35 The title of this article seems not to reflect the content of the article. Maybe just the first para should be eliminated as the remuneration comes under a special chapter Para 2 no. 3 and 4: it is at least questionable if political positions should be counted, in all circumstances, for seniority in the civil service. It may be possible only if political functions are performed by civil servants who suspend those functions while performing political functions (if allowed). Para 3: it seems more than unusual that the procedure for calculation should be determined by the council of ministers. Maybe the meaning is that it will be established by a decree, prepared by the special authority and adopted by the CoM.
13. Termination of the civil service (Section V) Art. 37 Civil servants should usually have (after probation) a permanent contract or appointment. This draft foresees appointment periods which, except for temporary replacement of an absent civil servant is not at all defined, i.e. there are no reasons given for short term appointments. In case this short term appointments are meant for political advisors, it has to be stressed that political advisors are by no definition civil servants as by no definition they are impartial and they should not carry out civil service tasks. Para 2 is again a very vague reference to other laws; as stated before such references hamper transparency and legal certainty. If this law states in the scope that it regulates termination of civil service, then this issue should in fact only be regulated in this law. Art. 38 Para 1/5: this is differently regulated in art. 32 para 4. Good drafting technique would call for clear cross referencing; “unless otherwise provided by the law” is not sufficient. Whether or not the acquisition of another citizenship is a valid regulation is doubtful as there are countries where marriage automatically implies the citizenship of that country. One would assume that such acquisition would not suffice for termination when applying the standards of the Human Rights Court. Para 2: 3 days may not suffice for the administrative tasks to be finalized Art.41 Para 1 /3): as stated before, it seems necessary to follow a procedure here. Art. 44 It is difficult to understand what is meant by “property” and by “duties”. This rule should be in the internal rules of procedures; moreover, it may be difficult for the dismissed civil servant to fulfill this obligation as he/she can only transfer things if a successor is already there. In fact, what is meant is that he/she should leave the files in good order and not take public property out of the office. Art.45 The need of a work book remains incomprehensible
14. Labour remuneration, incentives and social guarantees (Section VI) As the law is only for civil servants, “for a civil servant” is superfluous Art.46 and Art 47 “Official “salary is supposingly a translation error as official implies that there is also unofficial salary which should be impossible. It is assumed that basic salary is meant. Para 1: “bonuses” may not suffice here as there seem to be also other supplements, therefore the word supplement should be added; bonus is usually only used for performance supplements. 15
Para 2 it is unlikely that the cabinet of ministers develops the salary table; it is assumed that the appropriate wording should be the special authority prepares and the cabinet of ministers adopts it. If the official salary means the basic salary, than this basic salary should be the same for each sub group; the supplement for the ranks could be added in or stated separately; however, the level of the basic salary should not be left to the discretion of the civil service manager or to anyone else in the agencies. As the basic salaries a fixed on minimum wages the question arises whether or not it can be ensured that the minimum wages are definitely fixed for the following year in the month following the adoption of the budget. It is unclear why and how the difference between maximum and minimum official salary rate for each subgroup can be 30% and if a broad band salary scheme is intended. Supplements for longevity and ranks for performance are foreseen plus other performance bonuses. Except for the minimum salary allocated to each sub-group the take home pay seems to be to a large degree at the discretion of the superior or the civil service manager of a given agency. Doing a rough calculation, the actual take home pay can even reach more that 300% of the official salary for civil servants working in ministries or at the presidency, when adding longevity, rank bonuses, bonus according to para. 5 and the bonuses regulated in art.47. This amount of discretion and possible arbitrariness in remuneration is inappropriate. The real salary level is not any longer predictable as it depends on the good relationship with the superior. Good performance is to a great extend a value judgment. The individual civil servant is no longer â€œindependent in work and it would be more than difficult to not follow unlawful orders if the monthly salary depends on it. Moreover the various supplements and the possibility of monthly changing salaries create unnecessary costs for the administration while at the same time it hampers civil servants to plan ahead as they are never sure what their take home pay in the following month may be. Neither art.46 nor art. 47 specify how the individual basic salary and the major bonuses are awarded and for which time frame (in particular Art.46 /5; art. 47/1). In fact it is stated that each agency will used its own procedures. The system is not transparent and raises concerns regarding fairness and realism. Art.46/6 states that lack of budget funds cannot lead to reduction in salaries; this provision seems not implementable. Summarizing: it seems advisable to review the salary structure and to increase the basic salaries and at the same time adapt the bonus level to general European standards, that is to a level of around 5 to 10 % for outstanding performance and/ or workload and have salary steps linked to seniority and performance; longevity would then be superfluous. A supplement for working in ministries and the presidency would be acceptable if it were paid to all staff working there and a special reasoning is provided.
Art. 48 The formulation of this article is far too general; some conditions have to be set in the law, so that the decree can be drafted within given boundaries. As it stands now, arbitrariness in distributing official accommodation is very possible. Art. 49 The foreseen regulation of pensions seems very difficult to administer as the funds shall come from the pension fund and the budget (para 11). It could be simpler to envisage a supplement to the pension fund retirement benefits. This civil servants pension could be based on length of service and last basic salary. In any case, the civil servants pensionsâ€™ scheme must be harmonized with the pensionâ€™s policy in Ukraine, which has been recently reviewed. Fiscal impact assessment should also be made before any decision related to this subject. Para 1 firstly this paragraph should have numbers for the sub paragraphs. It is difficult to understand the second sub paragraph. If, to be eligible to a civil service pension the minimum of civil service years is ten years, then for all persons who have a right to a pension, the pension will be increase from 80% to 90% due to seniority. So why regulating it, or is there a misunderstanding. In any case, 90% is very high. However it is completely unclear what wage means in this context and which supplements to his basic salary are included. In the forth sub-paragraph it is stated that â€œall kinds of labour remuneration on contribution is charged. This does not really help transparency, the more as in this case nor article of the Law on General Mandatory State Pension Insurance is stated. In the following sub paragraph a maximum value is mentioned. Does this mean that top civil servants may end up with only 40% of their last take home pay or even less? Were calculations made? Para 2 again we assume a decree is meant. Who will prepare that decree, the central executive authority? Are there rules of procedures for drafting decrees and submitting them to the Cabinet of ministers? Do they include consultations, which are really important? Para 3: it would be common to reduce the pension if the pensioner works full time or if the money earned is paid out of the state budget. Para 9 is unclear; wage usually means private sector salary; it could be that here it means pension. It is also not clear what incapable means: it is unlikely that it really means handicapped. If it means dependent, then for children there is commonly a maximum age, e.g. 25 year. Para 12/2: it is not clear how a person who is still working in the service can have a pension calculated which needs to be recalculated due to dismissal. Para 13 is not really understandable. A pension is commonly always to be paid as of the day when the conditions for the pension are fulfilled, otherwise there has to be a limitation period stated. It is common practice that pensions are increased in line with active salaries. It is rather unusual for civil servant to apply for their pension and to provide papers as they are usually with the administration.
Para 16: the entitlement to a pension can be lost due to unethical behaviour, but then a minimal general state pension should replace it; however as the pension described in this article seems to be a mixture of pension fund and state supplement, it seems impossible to deprive the person from the entitlement coming from the pension fund, assuming that he/she had paid contributions.
15. Civil servants Working Hours, rest time and leave (Section VII) Art. 50 This article is clearly a definition so in the logic of this law it should be at the beginning. Para 2: In fact this law has made exceptions from the labour law with regard to working conditions, e.g. in art. 11 and art. 32; therefore this art. would have to take these exceptions into account and would need to cite them in this article. Para 3: in which law overtime remuneration is regulated? Is it the general labour law or there is a special law for civil servants? Art. 51 Count leave by calendar days is unusual and difficult to administer. What if a civil servant only takes leave from Monday to Friday three weeks in a row; it seems the personnel administration would not have any possibility to count the week-ends in to his leave allowance. We recommend to use working days. Para 1: does this para mean that a civil servant gets 2 monthly salaries when he/she is on leave? Para 2: does this mean that between the fifth and the 20th year of civil service there would be one more day every year? This may be a bit much. Para 3: for recalling from leave there have to be good reasons; as the para stands now, the recalling could be arbitrary; therefore it is not in line with general principles. Para 4: in this para there has to be a reference where the conditions for such leave are regulated.
16. Disciplinary and property liability (Section VIII) Art 52 Para 1 and 2 are rather redundant. Para : in principle disciplinary offences consist in not fulfilling his/her duties; consequently what is not somehow mentioned in the chapter duties/responsibilities cannot be an offence. This para should therefore have some kind of a general clause stating or in another way seriously have violated his/her duties. In addition, it may need to be clarified that also offences outside working hours can be disciplinary offences The numbering is not logic as serious and not serious offences seem to be mixed and not somehow structured
Sub para 4: it needs to be clarified that disciplinary offences and sanctions go parallel to penal law and that there can be a court judgment and a disciplinary sanction for the same deed. This fact may have been misunderstood while drafting sub para 4. Sub para 5: clear referencing to the law would be necessary. Sub para 9: seems to be difficult to control. Art. 53 The sanctions mentioned in this article seems to be unbalanced. There are basically 3 different forms of a written statement (reprimand) of the administration. What are the consequences of such statement? It is assumed that it goes into the personal file and then? Are there any consequences, e.g. if there are 3 reprimands in a year? It is not explained which offence would cause dismissal while all other sanctions are explained. A good solution could be to link the different sanctions with the classification of violations (e.g.: serious and non serious offences). What is the consequence of a service incompetence note? Is that stated somewhere? What is missing in the sanctions are: fine, reduction of salary for a given period of time up toâ€Ś, downgrading; blocking promotion for a given period of time up toâ€Ś and only as the last resort it would be dismissal. Art.55 This article does omit to regulate if there is a delay within which the appointing entity has to investigate a supposed disciplinary offence. In general the statute of limitation only starts when the appointing agency has gained knowledge of the possible offence. As of that date the delay maybe one or two years. However, it need to be regulated. The time, the offence was committed has usually not influence of the statute of termination. Para 4: establishing, independent of the possible severity of an offence, a commission of 7 members seems not proportionate. In many countries the inquiries are done by one person either from the personnel department or appointed by the personnel department. Then a report will be drafted and then a kind of a commission (or the top manager) decides. The delay of max 20 days may well be too short in different cases as witness may need to be heard and files consulted (e.g. corruption or sexual harassment are not that easy to explore). Para 5: is it rightly understood that the civil servant can appeal before a decision on the sanction is taken? The procedure is not finished so how can he appeal? An appeal against a proposal seems wrong. What could be appropriate is to hear him to the proposed sanction and the reasons before the final decision is taken. Para 6: it is unclear why details on the procedure are given in this article if then it is stated that the procedure of internal investigation has to be approved by the central executive agency.
Art. 56 It is not very common that a civil servant during a suspension from the job would keep his full salary, usually it would be reduced and if no offence was confirmed he would be paid the outstanding salary part. However, if the salary level is low, this solution may be appropriate. Para 3: it is not understandable how a civil servant suspended from the job can and should observe working hours. He/she has to be available for questions, etc. but the issue is that he should not be at the work place so that he cannot make disappear documents, etc. Art. 57 Para 1: we would assume it should be the civil service manager and not anybody in the appointing entity. Para 2 seems to imply that the civil servant will not receive a copy of the decision if he is willing to sign the receipt; this may need reformulation. Art. 59 This article treats all sanctions the same way which is not appropriate. The treatment should depend on the severity of the offence. The sanction would have to go into the personal file and should be taken out at the earliest after one year, but for more severe offences maybe only after 5 years and only then if not other offence happened .
17. Transitional provisions They are very difficult to analyse without the previous legislation, therefore no comments are produced to this part. In any case, it seems that rules for applying these rules to the existing civil servants are missing. This is usually a difficult part in the process of adopting a new law on civil service and must be prepared carefully.
Looking at previous versions of the draft law on civil service one may conclude that the current version represents an improvement. However, important areas are requiring further and relevant changes in order to align it with European standards and good practices in this domain. For this purpose the draft must:
Clarify the vertical and horizontal scope
Establish a clear separation between political and administrative positions
Improve the rules related to the salary system in order to create a system simpler, fair, transparent, realistic and predictable (reducing opportunities for arbitrariness)
Propose a better balanced disciplinary system
Ensure full compatibility with the general pensions scheme and sustainability
Separate matters that should be included in this law and others that should be part of secondary legislation
Improve protection against unfair dismissal
Reduce opportunities for political or managerial arbitrariness
Improve the overall consistency of the draft (internal systematization of matters, definitions, and wording)
Sigma, 16 August 2011