Effect given to the recommendations of the committee and the Governing Body - Report No 329, November 2002

Case No 2038 (Ukraine) - Complaint date: 26-FEB-99 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 145. The Committee last examined this case at its November 2001 meeting when it noted with interest the Government’s statement that the proposed amendments to the Trade Unions Act would take into account the conclusions of the ILO technical assistance mission [see 326th Report, paras. 165-167].
2. 146. In a communication dated 12 March 2002, the Free Trade Union’s Federation of Ukraine indicates that on 13 December 2001, the Supreme Rada of Ukraine adopted the Act amending the Trade Unions Act, and more particularly its sections 11 and 16. According to the new section 16, for collective bargaining purposes, trade unions are subject to legalization through registration by the Ministry of Justice or district and local administrations of justice. According to the complainant, the new version of section 16 continues to violate trade union rights as it maintains the requirement of registration of a trade union. Such a requirement, according to the complainant, is tantamount to previous authorization to establish a trade union. While obtaining legal personality upon its creation, a trade union cannot fully exercise its activities without satisfying the condition set by section 16. Moreover, the complainant provides examples of difficulties encountered by unregistered trade unions. The complainant has suggested an amendment to section 16 of the Act, which is currently before the Rada committee dealing with social and labour matters. According to the proposed amendment, trade unions would no longer be subject to registration, but only to legalization by the Department of Statistics.
3. 147. In communications dated 25 April, 12 July and 30 August 2002, the Government indicates that, in order to engage in bargaining at the appropriate level for the regulation through collective agreement of labour and socio-economic relations, trade unions, their organizations and associations are subject to legalization (official registration) through registration. The registration of all-Ukrainian trade unions and their associations is carried out by the Ministry of Justice of Ukraine, and that of other trade unions and their associations by the Main Directorate of Justice of the Ministry of Ukraine for the Crimea Autonomous Republic, and the regional, district and municipal justice directorates. The registration certificate is delivered and trade unions are included in the register of public associations on the basis of the documents required by section 16 (trade union by-laws, founding documents, etc.) within one month from the application date. Paragraph 10 of the section amended in December 2001 provides that trade unions and confederations of trade unions acquire their legal personality from the moment of their establishment (approval of by-laws). Legal personality is also acquired by the organizations affiliated to the trade union carrying out its activity on the basis of its by-laws. Thus, according to the Government, legalization through registration does not constitute previous authorization for the establishment of a trade union. The Government further states that there are 86 presently registered trade unions. Moreover, it considers that the fact that the Free Trade Union’s Federation has participated, without being registered, in the negotiation of the General Agreement for 2002-03 demonstrates that the new procedure does not put trade unions in a situation of dependency upon the executive bodies. In light of the above, the Government states, in its communication of 30 August, that the current wording of section 16 of the Act is in conformity with international standards and therefore does not need to be amended. However, in its communication of 12 July, the Government had indicated that the fact that the Act implies a distinction between the acquisition by a trade union of a legal personality (which occurs as soon as its by-laws are approved) and official legal recognition of trade unions created certain difficulties with regard to the interpretation of standards concerning the inclusion of trade unions in the appropriate state registers. In this respect, on 6 June 2002, a meeting of the National Social Partnership Council proposed to the Government to request the Ministry of Justice, in collaboration with representatives of trade unions and employers’ organizations, to propose possible amendments to the Act.
4. 148. The Committee takes note of this information. It notes with interest that, according to the current wording of section 16 of the Trade Unions Act, trade unions and confederations of trade unions acquire their legal personality from the moment of their creation. As concerns trade union registration, the Committee recalls that, in many countries, organizations are required to register; such legislation is not in principle incompatible with the Convention. However, problems of compatibility with the Convention may arise where, in practice, competent administrative authorities make excessive use of their powers and are encouraged to do so by vagueness of the relevant legislation. The Committee notes that the Government itself has acknowledged that the distinction between the acquisition by a trade union of a legal personality (which occurs as soon as its by-laws are approved) and official legal recognition of a trade union creates certain difficulties with regard to the interpretation of standards concerning the inclusion of trade unions in the appropriate state registers and that the National Social Partnership Council is of the opinion that section 16 needs to be amended. The Committee also notes from the complainant’s communication that application of section 16 continues to pose practical difficulties for trade unions. The Committee also notes that the complainant formulated an amendment to section 16 of the Act. In the Committee’s view, and on the basis of the information provided by both the complainant and the Government, the proposed amendment would be compatible with Convention No. 87. The Committee has previously emphasized the importance it attaches to the promotion of dialogue and consultation on matters of mutual interest between the public authorities and the workers’ organizations [see Digest of decisions and principles of the Freedom of Association Committee, 4th (revised) edition, 1996, paras. 924-928]. The Committee therefore requests the Government to engage in full consultations with the social partners on the possible amendment of section 16 of the Act in order to resolve this issue to the satisfaction of all the parties concerned. It requests the Government to keep it informed in this respect.