Interim Report - Report No 323, November 2000

Case No 2079 (Ukraine) - Complaint date: 02-FEB-00 - Closed

Allegations: Adoption of legislation contrary to freedom of association; denial of legal recognition to trade unions harassment and intimidation of trade union activists

1. 525. The complaint of the Volyn Regional Trade Union Organization of the All-Ukraine Trade Union "Capital/Regions" is contained in communications dated 2 and 22 February, 25 May and 9 September 2000. The Government sent its observations in communications dated 5 June and 28 July 2000.
2. 526. 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

• Allegations of a legislative nature
  527. 527 The Volyn Regional Trade Union Organization of the All-Ukraine Trade Union "Capital/Regions" explains firstly that on 8 April 1999, the Supreme Council of the Ukraine adopted the Act on Trade Unions, their Rights and Safeguard of their Activities (hereinafter the "Act"), which entered into force on 6 October 1999. The complainant alleges that sections 11 and 16 of the said Act are contrary to Article 2 of Convention No. 87. More specifically, the complainant explains that the provisions of section 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 in Ukraine - are violating the constitutional principle of the equality of all trade unions. According to the complainant, this section creates unequal conditions for the trade unions of Ukraine and only strengthens the monopoly rights of the Federation of Trade Unions of Ukraine, which is the successor of the communist trade unions.
  528. 528 Concerning the provisions of section 16 which provides that the legalization of a trade union shall be compulsory and shall be carried out by way of its registration in accordance with the conditions set out in section 11, the complainant considers that the fact that a union can be established only after its registration by the state bodies leads to state interference in the process of creating a trade union.
• Allegations of a factual nature
  529. 529 Secondly, the complainant explains that in accordance with article 36(3) of the Constitution of Ukraine, a trade union affiliated to the All-Ukraine Trade Union "Capital/Regions" was established at the Volynoblenergo enterprise in the second half of 1999. On 27 January 2000, the Volynoblenergo trade union informed the management of the establishment of the new union and of the start of collective bargaining on a number of issues relating to the socio-economic rights of the workers. On 22 February 2000, the newly created union received a written notification from the management informing it that the recognition of the union as a legal entity would not be considered and that the Ministry of Justice would be requested for confirmation of the legalization of the All-Ukraine Trade Union "Capital/Regions". Moreover, the public prosecutor's office would be requested to institute proceedings against the trade union officers for carrying out trade union activities without having been legalized.
  530. 530 The complainant explains that a similar situation has occurred at the Lutsk Bearing Plant enterprise since the trade union in that enterprise has not been legalized in accordance with section 16 of the Act on Trade Unions and that court proceedings were initiated against the leaders and activists of that union.
  531. 531 Following the non-recognition of the trade unions at the Volynoblenergo enterprise and at the Lutsk Bearing Plant enterprise, the complainant organization claims that the members of these unions started facing very serious acts of anti-union discrimination, namely repression and persecution of activists and trade union leaders and disregard of legislation by the employers and the representatives of the authorities. More specifically, concerning the situation of the trade union at the Volynoblenergo enterprise, the complainant explains that the leader of this union, Mr. Jura, was warned in April 2000 that his contract would be terminated as a result of his trade union activities. The trade union is currently working in illegal conditions which is punishable under Ukrainian legislation. Some of the trade union members who could not withstand the psychological pressure withdrew from the union. Furthermore, the complainant alleges that the public authorities instructed the police to use repressive measures against the trade union leaders and to initiate legal proceedings against them. As for the situation at the Lutsk Bearing Plant enterprise, the complainant claims that since early April 2000, the employers have instructed the security guards not to let the leader of the union, Mr. Vdovichenko, onto the premises of the enterprise. At the same time, the employers, with the active support of the authorities, have established an anti-trade union committee. Finally, the complainant claims that a collective agreement for 1999-2000 drafted by the employers was adopted without consultation of the union and that 223 workers were laid off at the end of 1999 without informing the union.
  532. 532 In a recent communication dated 9 September 2000, the complainant alleges that a new wave of repression against the leaders, activists and members of the Volyn Free Trade Union has taken place. This repression includes in particular an attack on Mr. V. Chupikov, leader of the Free Trade Union at the Voltex enterprise, the dismissal of Mr. Shavernev, trade union activist at the Lutsk Bearing Plant enterprise and the renewed refusal to allow the leader of that union onto the premises of the enterprise.

B. The Government's reply

• Allegations of a legislative nature
  533. 533 In its communication of 5 June 2000, the Government indicates that in accordance with the Ukrainian Constitution, only the Constitutional Court of Ukraine has the jurisdiction to resolve issues relating to the constitutionality of laws. Therefore, the Government states that the issue of amending or supplementing the Act on Trade Unions can only be resolved following a ruling by the Constitutional Court of Ukraine. In this regard, the Court is currently examining an appeal by a group of Ukrainian Parliamentarians concerning the constitutionality of articles 8, 11 and 16 of the Act. The decision of the Court is still due.
• Allegations of a factual nature
  534. 534 Concerning the situation of the trade union at the Volynoblenergo enterprise, the Government indicates that the complaints of that union were examined several times by the Ministry's Chief State Labour Inspectorate and the Volyn regional state labour inspectorate. As a result of verifications, records of violations were drawn up and sent to the enterprise management with instructions for the violations to be eliminated. These concerned, in particular, remuneration, the settlement of wage arrears, working conditions, staff reductions and the conclusion of the collective agreement. The Chief State Labour Inspectorate informed the president of the union in writing that the employer had taken steps to eliminate the violations on all the points mentioned in the inspectorate's instructions.
  535. 535 Concerning the situation of the trade union at the Lutsk Bearing Plant enterprise, the Government indicates that according to the information provided by the Volyn regional labour inspectorate, the matters set forth in the complaint were examined several times at the enterprise level. According to the Government, upon verification, the drafting of the collective agreement for 1999-2000 was done with the direct participation of the trade union. Furthermore, no violation was found to have taken place when 223 workers were dismissed without consulting the union. Upon verification, it was found that the dismissal of these workers in connection with staff reductions took place in accordance with Ukrainian labour legislation.
  536. 536 Finally, the Government states that it was explained to the complainants that the activity of the trade union in the enterprise is regulated by the Act on Trade Unions and failure on their part to comply with the provisions of this Act may be contested in court by the employers. The Government also indicates that according to the Ministry of Justice, as of 25 July 2000, the All-Ukraine Trade Union "Capital/Regions" had not been registered.

C. The Committee's conclusions

1. 537. The Committee observes that this case relates to two sets of allegations, namely allegations of a legislative nature related to certain provisions of the Act on Trade Unions, their Rights and Safeguard of their Activities, and allegations of a factual nature related to the denial of legal recognition of trade unions, harassment and intimidation of trade union activists.
2. 538. With regard to the allegations of a legislative nature, the Committee recalls that it has already examined similar allegations in the context of Case No. 2038 (see 318th Report, paras. 517-533). In this case, which concerned the compliance with freedom of association principles of sections 11 and 16 of the Act on Trade Unions, the Committee had made the following recommendation:
   • (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 organizations, 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.
3. 539. In a recent communication of 30 October 2000, the Committee has been informed of the decision of the Ukrainian Constitutional Court, published on 24 October 2000, in which the Court declared unconstitutional certain provisions of articles 8, 11 and 16 of the Act on Trade Unions, their Rights and Safeguard of their Activities. In these circumstances, while expressing the firm hope that the Government will give effect to the Court's decision, the Committee does not intend to examine once again this aspect of the case and will only recall the recommendation it formulated in the context of Case No. 2038.
4. 540. Concerning the other allegations, the Committee observes firstly that the trade unions at the Volynoblenergo enterprise and at the Lutsk Bearing Plant enterprise have not yet acquired legal personality since the All-Ukraine Trade Union "Capital/Regions" has not yet been registered. This fact is not contested by the Government. According to the complainant, this non-recognition has led to numerous acts of anti-union discrimination, including criminal proceedings against trade unions leaders. In this regard, 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 or following a registration procedure. Although the founders of a trade union should comply with the formalities prescribed by legislation, these formalities should not be of such a nature as to impair the free establishment of organizations (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 248). In the present case, the Government has not clearly indicated why the All-Ukraine Trade Union "Capital/Regions" had not yet been registered. Therefore, the Committee requests the Government to take the necessary measures to ensure that, once the registration formalities have been observed, the trade unions at the Volynoblenergo and Lutsk Bearing Plant enterprise obtain legal recognition and are able to exercise freely their activities.
5. 541. Concerning the allegations of anti-union discrimination, namely the harassment, intimidation and initiation of legal proceedings against trade union leaders and activists for carrying out trade union activities, the Committee notes that the Government acknowledges that certain violations had been noted by the Chief State Labour Inspectorate but that management had taken steps to eliminate the violations in question. However, according to the complainant, the leader of the trade union at the Lutsk Bearing Plant enterprise is still being prevented from entering the premises of the enterprise. Furthermore, the union leaders of the Volynoblenergo and Lutsk Bearing Plant enterprises are still facing legal proceedings for carrying out their trade union activities. In this regard, the Committee recalls that measures designed to deprive trade union leaders and members of their freedom entail a serious risk of interference in trade union activities and, when such measures are taken on trade union grounds, they constitute an infringement of the principles of freedom of association (see Digest, op. cit., para. 74). The Committee regrets that the Government has not provided any information on these allegations and requests it to transmit its observations on this aspect of the case without delay. It also requests the Government to transmit its observations on all the new allegations submitted by the complainant in its most recent communication.
6. 542. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.

The Committee's recommendations

1. 543. In the light of its interim 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 taking note of the recent decision of the Ukrainian Constitutional Court on the unconstitutionality of certain provisions of the said Act, the Committee requests the Government to take all necessary measures to bring sections 11 and 16 of the said Act into full conformity with the provisions of that Convention and to keep it informed in this regard.
   • (b) The Committee requests the Government to take the necessary measures to ensure that, once the registration formalities have been observed, the trade unions at the Volynoblenergo and Lutsk Bearing Plant enterprises do acquire legal recognition and are able to exercise freely their activities.
   • (c) The Committee regrets that the Government has not provided any information on the allegations of harassment, intimidation and initiation of legal proceedings against the leaders of the unions at the Volynoblenergo and Lutsk Bearing Plant enterprises and requests it to transmit its observations on this aspect of the case without delay. It also requests the Government to transmit its observations on all the new allegations submitted by the complainant in its most recent communication.
   • (d) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.