Report in which the committee requests to be kept informed of development - Report No 318, November 1999

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

Allegations: Adoption of legislation contrary to freedom of association

1. 517. The complaint of the Free Trade Union's Federation of Ukraine is contained in communications dated 26 February and 2 July 1999. The Government sent its observations in a communication dated 30 July 1999.
2. 518. Ukraine has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 519. The Free Trade Union's Federation of Ukraine states firstly that it is opposed to certain provisions, in particular articles 11 and 16 of the Act on "Trade Unions, their Rights and Safeguard of their Activities", which was recently adopted by the Supreme Rada of Ukraine. The complainant also explains that under the veto procedure, the President of Ukraine gave back the law for revision but did not request in his observations that the content of articles 11 and 16 be modified. Therefore, although the abovementioned Act is still being discussed by the Supreme Rada of Ukraine, the complainant maintains its position concerning the need to amend articles 11 and 16 of the Act.
2. 520. More specifically, the Free Trade Union's Federation of Ukraine alleges that article 11 of the Act on "Trade Unions, their Rights and Safeguard of their Activities" violates Article 2 of Convention No. 87. Article 11 provides that "... trade unions shall have the district status if they have their organizational links in the majority of administrative territorial units of the same district and in the cities of Kiev and Sevastopol; ... or they comprise the majority of trade union members of the same vocation or occupation working in the district and in the cities of Kiev and Sevastopol. The All-Ukrainian status of trade unions shall be determined on the basis of one of the following principles: (1) the existence of organizational trade union links in the majority of those administrative territorial units of Ukraine; (2) the existence of organizational trade union links in the majority of those administrative territorial units of Ukraine where the enterprises, institutions and organizations of a certain industry are located and which unite at least one-third of the trade union members of the industry; (3) the association in a trade union of the majority of trade union members of a certain vocation working in Ukraine.
3. 521. The complainant alleges that the provisions of article 11, by stipulating the conditions for providing trade unions with local, regional and All-Ukrainian status -- according to which in order to provide a trade union with regional and All-Ukrainian status it should unite more than half of the workers of the appropriate industry or should have its organizational units in the majority of administrative territories of Ukraine -- are violating the constitutional principle of the equality of all trade unions. According to the complainant, this article creates unequal conditions for the trade unions of Ukraine since only the state-supported trade unions comprising the Federation of Trade Unions of Ukraine would meet such requirements.
4. 522. Another point raised by the complainant concerns the provisions of article 16 of the abovementioned law. This article provides that "the legalization of the trade unions and their associations shall be compulsory and shall be carried out by the way of their registration, ... the application for registration shall be considered within one month from the date of the receipt of the documents. During this period of time, the legalizing body shall carry out the verification of the correspondence of the status with the provisions of article 11 of the present law, introduce the organization into the register of the association of citizens and issue a certificate". According to the complainant, this article entails that a trade union is considered to be established only after its registration by the appropriate state bodies. This violates the Constitution of Ukraine and it would lead to state interference in the process of creating a trade union and would bring the end of the independent trade union movement in Ukraine.
5. 523. In addition, the complainant finds unacceptable part 2 of the final provisions of the Act which provides that "trade unions and their associations which have already acted in the territory of Ukraine shall be obliged within six months from the entry into force of the present law to be legalized in accordance with this law without paying any registration fee". This would entail the automatic dissolution of all trade unions which do not comply with the provisions of articles 11 and 16 of the new law.

B. The Government's reply

1. 524. The Government states firstly that the allegation according to which article 11 of the law on "Trade Unions, their Rights and Safeguard of their Activities" violates the principles of equality, independence and democracy in the establishment of free development of trade unions is without foundation. The Government explains that article 2 of the Act states that the purpose of setting up trade unions is to represent, implement and defend citizens' labour and socio-economic rights and interests. Under the Act, a union's right and powers to defend its members' interests does not depend on its status. As regards the status of trade unions, the Government insists that this is established, in Ukraine as in many other countries, in order to determine the representation of a union at the national, regional and branch levels for the purpose of consultations, collective bargaining, participation in tripartite bodies, etc.
2. 525. Concerning article 16 of the Act, under which unions must obtain legal recognition through registration, the Government explains that legal recognition means official recognition of trade unions once they have been established and therefore cannot be regarded as an "authorization".
3. 526. Finally, the Government points out that the Act was drafted in direct consultation with union representatives. In particular, the Supreme Council's Social Policy and Labour Affairs Committee set up a consultative commission whose members included representatives of all the national trade unions. According to the Government, the final versions of articles 11 and 16 were proposed by trade union representatives. The Government acknowledges that a number of provisions in the Act are indeed not consistent with the Constitution and the national legislation of Ukraine but it is precisely for that reason that the President has referred the Act back to the Supreme Council for a further reading.

C. The Committee's conclusions

1. 527. The Committee notes that this case relates to allegations concerning the adoption of a legislation on trade unions contrary to the principles of freedom of association. More specifically, the Committee takes note of the provisions of sections 11 and 16 of the Act on "Trade Unions, their Rights and Safeguard of their Activities" which are the main issues of the complaint.
2. 528. With regard to section 11 of the Act, the Committee notes that in order for a trade union to obtain district or All-Ukrainian status, it should unite more than half of the workers of the same vocation or occupation or should have its organizational units in the majority of administrative territorial units of the same district or in the majority of administrative territorial units of Ukraine. It also notes that article 16 provides for the compulsory registration of a union which will be carried out by a legalizing body who will verify the correspondence of the status of the union in accordance with the requirements of section 11. The Committee further notes that according to the final provisions of the Act, the existing trade unions will have six months from the date of entry into force of the Act to regularize their situation by registering themselves, otherwise their activities will become illegal.
3. 529. Concerning section 11 of the Act, the Committee recalls that requirements regarding territorial competence and number of union members should be left for trade unions to determine in their own by-laws. In fact, any legislative provisions that go beyond formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3(2) of the Convention (see General Survey on freedom of association and collective bargaining, 1994, para. 111).
4. 530. Concerning section 16 of the Act, the Committee recalls that national legislation providing that an organization must deposit its rules is compatible with Article 2 of the Convention if it is merely a formality to ensure that those rules are made public. However, problems may arise when the competent authorities are obliged by law to request the founders of organizations to incorporate in their constitution certain provisions which are not in accord with the principles of freedom of association. Furthermore, the Committee recalls that Article 7 of Convention No. 87 provides that "The acquisition of legal personality by workers' and employers' organizations, federations and confederations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 thereof". A legislation is thus compatible with the terms of the Convention if it automatically confers legal personality on the organization in question at the time of establishment, be it without formalities being observed, when the by-laws are deposited, or following a registration procedure or other formalities which are compatible with the Convention. However, in the present case, it appears that the provisions of sections 11 and 16 of the Act, which confer a certain status to a union if it unites more than half of the workers of the same vocation or occupation and then has to be registered in accordance with the status it has been granted, are not compatible with the provisions of Convention No. 87. The Committee recalls that the principle of freedom of association would often remain a dead letter if workers and employers were required to obtain any kind of previous authorization to enable them to establish an organization. This does not mean that the founders of an organization are freed from the duty of observing formalities concerning publicity or other similar formalities which may be prescribed by law. For instance, the requirement that a trade union shall have a registered office is a normal requirement in a large number of countries. However, these requirements must not be such as to be equivalent in practice to previous authorization. Even in cases where registration is optional but where such registration confers on the organization the basic rights enabling it to further and defend the interests of its members, the fact that the authority competent to effect registration has discretionary power to refuse this formality is not very different from cases in which previous authorization is required (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 244 and 253; see also General Survey on freedom of association and collective bargaining, 1994, paras. 70 and 76).
5. 531. Concerning the final provisions of the Act which grant six months to existing unions to regularize themselves through registration, the Committee is of the view that such provisions are not in themselves problematic. However, in this case, considering the requirements of sections 11 and 16 which are not compatible with the principles of freedom of association, these final provisions become unacceptable since they would amount to an administrative dissolution for unions which do not comply with them.
6. 532. Finally, the Committee notes that the Government acknowledges that certain provisions of the Act are not consistent with the Constitution as well as national legislation. The Committee is of the view that in this context, new consultations with all trade unions, including the complainant organization, should take place in order to eliminate the shortcomings of the Act and it therefore requests the Government to take all necessary measures to bring sections 11 and 16 of the Act on "Trade Unions, their Rights and Safeguard of their Activities" into full conformity with the provisions of Convention No. 87. The Committee requests the Government to keep it informed in this regard.

The Committee's recommendations

• D. The Committee's recommendations
  533. 533 In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
       • (a) Considering that sections 11 and 16 of the Act on "Trade Unions, their Rights and Safeguard of their Activities" are in violation of Convention No. 87 and that new consultations with all trade unions, including the complainant organization, should take place in order to eliminate the shortcomings of the said Act, the Committee requests the Government to take all necessary measures to bring sections 11 and 16 of the Act into full conformity with the provisions of that Convention and to keep it informed in this regard.
       • (b) The Committee draws the legislative aspects of this case to the attention of the Committee of Experts on the Application of Conventions and Recommendations.