Why employers will get rid of defaulters of alimony explained by Yulia Stusenko

Later, the project #ЧужихДетейНеБывает, aimed at fighting non-payers of alimony, will also affect the business. Employees, who, due to family problems, have created debts to their own children, are in a certain sense toxic.

Recently, the Ministry of Justice signed a memorandum of cooperation with the State Employment Service and the State Labor Service of Ukraine, according to which the departments will exchange information about non-payers of alimony. Moreover, this information can be the basis for checking the organization where the shady father works, - an associate partner of Skliarenko, Sydorenko and Partners, lawyer Yulia Stusenko draw attention to in the article “Toxic worker” for the platform Liga: Zakon.

Since one of the key problems of the child receiving less funds is unformed employees and wages in envelopes, according to experts, the state thus actually try to solve two problems simultaneously. In accordance with the provisions of the memorandum in the case of a complaint, the Ministry of Justice will send information to the State Labor Department, which will come to the employer with an inspection of all the employees.

And it fully fits into the existing Procedure for exercising state control over compliance with labor legislation, approved by the Cabinet of Ministers of 26.03.2017 No. 295. Thus, by the decision of the head of the control body to conduct inspection visits to identify unformed labor relations, taken as a result of analyzing information obtained from sources for which access is not limited by law, a labor inspector can come to the company with an inspection visit.

In addition, the establishment of the fact of work without formalization will be the basis for the bodies of the State Fiscal Service to charge such employers the personal income tax, the Unified Social Contribution, the military fee and the corresponding penalties for each unformed employee.

Extra troubles in connection with the accompanying inspectors, as well as significant fines, which in 2019 amount to more than 125 thousand UAH, for each identified employee with a salary in the envelope, and additional taxes and penalties will force employers (in order not to create an extra reason for inspections) to find a replacement for those employees who have family debts.

But in this case, the employee will have problems. After all, the concealment of your real salary (the concealment of income) can be regarded as a malicious evasion from the payment of alimony. Art. 164 of the Criminal Code punishes this by public works for a period of from eighty to one hundred twenty hours or by arrest for up to three months, or by restraint of liberty for up to two years.

However, the unemployed alimony debtors will not be left without the care of the state. They will be offered voluntary employment opportunities. In case of refusal, they will be sent to paid socially useful work and thus pay off debts to pay alimony. Such a mechanism is also laid down by a memorandum.

The key question that arises in connection with this scheme is how, should the defaulter refuse to accept voluntary employment, does the Ministry of Justice plan to send such a person to community service? After all, if a person refuses to work voluntarily, then he can be sent to socially useful work only under compulsion.

And although under article 43 of the Constitution of Ukraine, the use of forced labor is prohibited, at the same time, work performed by a court decision is not considered forced labor. In this regard, it can be recalled that the Law “On Amendments to Certain Legislative Acts of Ukraine on the Creation of Economic Prerequisites for Enhancing the Protection of the Child’s Right to Proper Maintenance” (which is one of the laws of the project #ЧужихДетейНеБывает) provides for administrative liability socially useful work for the non-payment of alimony (current article 183-1 of the Code of Administrative Offenses).

Thus, for compulsory referral to socially useful work, the Ministry of Justice will appeal to the court to bring defaulters of alimony to administrative responsibility and obtain a positive court decision regarding such a person indicating to be sent to socially useful work in order to repay the arrears.

To ensure that this “sanction” is served, the legislator also provided for administrative responsibility for evading a person from serving an administrative penalty in the form of community service by imposing an administrative arrest of up to ten days.