WORKING TIME AND EMPLOYEE AVAILABILITY TIME: PROBLEMS OF LEGAL DELINEATION UNDER REMOTE EMPLOYMENT

Abstract

The article examines the concept of working time as one of the key elements of labor relations, defines its essence, legal nature, and place within the system of labor law. Scientific approaches to the interpretation of the category of "working time" are analyzed, in particular the positions of Ukrainian scholars who emphasize the regulatory, contractual, and functional aspects of this concept. Based on the generalization of scientific approaches, a comprehensive definition of working time is proposed as a period established by legislation and by the collective and employment contract, during which an employee, in accordance with internal labor regulations, is obliged to perform their labor functions or to remain at the employer’s disposal in other cases provided by legislation or the contract, while the employer is obliged to provide the employee with the necessary conditions and means of work. Working time is analyzed as not merely an object of legal regulation but also an essential condition of the employment contract that determines the limits of the rights and obligations of the parties to labor relations. The peculiarities of legal regulation of working time under the conditions of digitalization of the economy and the spread of remote and flexible forms of employment are revealed. The necessity of further improving the legal regulation of the "right to disconnect", which has already received partial recognition in Ukrainian legislation through the institution of the disconnection period, is substantiated. An original multi-factor criterion for distinguishing working time from an employee’s availability time is developed, based on a synthesis of Court of Justice of the European Union case law and current Ukrainian legislation, together with a proposal to improve Article 60-2 of the Labor Code of Ukraine. The current wording of Article 60-2 of the Labor Code of Ukraine is analyzed, revealing the absence of objective criteria for distinguishing working time from a remote employee’s availability time. The importance of harmonizing national legislation with Court of Justice of the European Union case law is emphasized, which will contribute to improving the level of social protection of employees under remote employment.