Effect given to the recommendations of the committee and the Governing Body - Report No 348, November 2007

Case No 2388 (Ukraine) - Complaint date: 07-OCT-04 - Closed

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

1. 156. The Committee last examined this case, concerning allegations of interference by the Ukrainian authorities and employers of various enterprises in trade union internal affairs, dismissals, intimidation, harassment and physical assaults on trade union activists and members, denial of facilities for workers’ representatives and attempts to dissolve trade unions, at its March 2007 meeting [see 344th Report, paras 217–233]. On that occasion, it requested the Government to:
2. - indicate whether appropriate compensation was paid to those trade unions of the Western Donbass Association of the Independent Trade Union of Miners (NPGU), which suffered material damage due to the illegal search on 12 November 2002 (paragraph 224);
3. - continue keeping it informed of the developments regarding investigations of cases concerning allegations of physical assaults on Mr Kalyuzhny and Mr Volynets and to transmit information as to the inquiries into the allegations of physical assaults on Mr Shtulman and Mr Fomenko (paragraph 225);
4. - ensure that trade union dues transferred during 2002–03 at the “Brodecke” and “Brodecke sugar refinery plant” enterprises were duly paid to the unions affiliated to the Federation of Trade Unions of Ukraine (FPU) (paragraph 226);
5. - provide information on the reasons for the dissolution of the All-Ukrainian Union of Football Players by an order of 20 August 2000 of the Ministry of Justice (complainant organizations were also requested to provide this information) (paragraph 227);
6. - take the necessary measures so as to ensure that the trade union at the “Azovstal” enterprise, the registration of which was cancelled for unlawful use of the enterprise’s name in the title of the union, is re-registered (paragraph 228);
7. - indicate whether the Federation of Free Trade Unions of Lvov Railways is presently registered (paragraph 229);
8. - provide further information on negotiation of a collective agreement at the Ilyichevsk Maritime Commercial Port (paragraph 230);
9. - provide information on the case of appeal filed by the enterprise trade union to contest the findings of two inspections conducted at the “Ilyich” metallurgical enterprise concerning the alleged violations of trade union rights and to examine further the allegations of anti-union campaign at the “Marganetsk ore mining and processing” enterprise with the participation of the union concerned (paragraph 231).
10. The Committee further noted the new allegations submitted by the Confederation of Free Trade Unions of Ukraine (CFTUU) and encouraged the complainant and the Government to examine the new allegations, as well as some of the outstanding matters, where possible through the use of tripartite commissions. The Committee noted the complainants’ lack of confidence in national procedures and therefore firmly encouraged the Government and the social partners to review the current functioning of national mechanisms so as to guarantee respect for freedom of association in practice, in a manner which has the full confidence of all parties concerned.
11. 157. In its communications dated 15 February and 11 June 2007, the Government provides its observations with regard to the Committee’s following recommendations:
12. – Paragraph 225: (1) Further to the information it had previously provided with regard to the physical assault on Mr Volynets, the Government indicates that following investigation, this case was closed pursuant to section 6(1) of the Code of Penal Procedure (absence of an offence). This decision by the Darnitsky District Department of the Main Directorate of the Ministry of Internal Affairs of Ukraine (GUMVD) in Kiev was taken in agreement with the Darnitsky District Public Prosecutor’s Office on 19 December 2006. (2) Concerning the allegation of assault on Mr Kalyuzhny and Mr Fomenko, criminal proceedings under section 296(2) of the Penal Code (act of hooliganism committed by a group) were instituted and investigations had been carried out. To date, the perpetrators have not been identified, despite all measures taken to that effect. The proceedings in these criminal cases were closed in accordance with section 206(3) of the Code of Penal Procedure on grounds that the perpetrators of the crime could not be identified. (3) Finally, with regard to Mr Shtulman, the Government indicates that, on 3 July 2001, Mr Shtulman addressed the Shakhtyorsk District Department of the GUMVD alleging that, on 2 July 2001 at about 2 a.m., three unidentified men forced him and his acquaintance into a car. They spent about three to five minutes threatening them with physical violence and demanded that they give up their trade union activity. Afterwards they let them out and drove off in an unknown direction. Based on the results of the inquiry carried out on 13 July 2001, an order refusing to institute criminal proceedings in accordance with section 6(2) of the Code of Penal Procedure (absence of an offence) was issued by the Shakhtyorsk District Department.
13. – Paragraph 226: The territorial state labour inspectorate in Vinnitsa region is unable to carry out an inquiry into the allegation of non-payment of trade union dues, due to the absence of relevant documents at the enterprise, since the time limit for keeping them on file has expired. During a conversation with the Chairperson of the joint trade union committee of the “Brodecke” and “Brodecke sugar refinery plant” enterprises, Mr V.M. Burtsev, it was established that he did not know about the arrears in trade union dues for the years 2002–03, since he has been the Chairperson since 2005.
14. – Paragraph 227: The All-Ukrainian National Union of Football Players was registered by the Ministry of Justice of Ukraine on 20 March 2000. On 25 November 2003, the Kiev Appellate Economic Court declared invalid the by-laws and the certificate of registration of the union and instructed the Directorate of Legalization of Citizens’ Associations of the Ministry of Justice to strike it from the register of citizens’ associations. On 16 March 2004, the Higher Economic Court upheld the decision of the Kiev Appellate Economic Court. Given that the Supreme Court of Ukraine, by its decision of 17 June 2004, refused to open cassational proceedings to review the decision of the Higher Economic Court, the Ministry of Justice cancelled the registration of the All-Ukrainian National Union of Football Players on 15 September 2004.
15. – Paragraph 228: The independent trade union of the “Azovstal” enterprise has not taken any initiative with regard to its re-registration.
16. – Paragraph 229: The Federation of Free Trade Unions of Lvov Railways was legalized by the Main Directorate of Justice of Lvov region on 7 April 2000.
17. – Paragraph 230: The labour and social relations at the Ilyichevsk Maritime Commercial Port (IMCP) are governed by the collective agreement concluded between the port management and the workforce for 2001–04. The agreement was amended and supplemented on 16 August 2002, 17 November 2003, 9 July 2004, 24 June 2005 and 23 June 2006. All of the amendments were approved by the workforce conferences and registered in the Labour and Social Protection Directorate of Ilyichevsk. At the initiative of the previous director of the IMCP, in June 2006, the parties set up a working group for collective bargaining purposes. No bargaining is currently taking place between the owner and the five trade unions. No complaints have been received by the territorial state labour inspectorate in Odessa region from the representatives of the trade unions active at the IMCP concerning the conclusion of a new collective agreement.
18. – Paragraph 231: (1) “Marganetsk ore mining and processing” enterprise. According to the information provided by the State Department for Supervision of Compliance with Labour Legislation, an inspection was carried out at the enterprise by the territorial state labour inspectorate of Dnepropetrovsk region, with the participation of a specialist from the Labour and Social Protection Directorate of the Marganetsk Municipal Executive Committee, in the presence of the Chairperson of the primary trade union of the NPGU at the “Marganetsk ore mining and processing” enterprise, a former chairperson of the trade union committee of the NPGU at the enterprise (re-elected by majority vote at the trade union conference on 9 May 2007), a representative of the primary trade union of the Metallurgists and Miners of Ukraine at the enterprise (PPOMGU) and representatives of the enterprise. According to the findings of the inspection, two primary-level trade unions active at the enterprise, the NPGU and the PPOMGU, represent 128 and 6,596 workers, respectively. The collective agreement was found to be in conformity with the labour legislation in force. The inspection found no instances of pressure on members of the active primary trade unions or anti-union campaign by the management. (2) “Ilyich” metallurgical enterprise. On 29 January 2007, the Donetsk Regional Economic Court decided to close the proceedings in this case since the dispute did not fall within the competence of the economic court. The decision was upheld by decision of 14 March 2007 of the Donetsk Appellate Economic Court. Disagreeing with the abovementioned court decisions, the union filed a cassational appeal with the Higher Economic Court of Ukraine. That court is scheduled to examine the appeal on 12 June 2007.
19. 158. With regard to the allegations appearing in paragraph 218, the Government provides the following additional information:
20. – “Lesnaya”, “Zarechenskaya” and “Vizeiskaya” mines of the “Lvovugol” company: In its communication dated 15 February 2007, the Government indicates that the confiscated documents were returned to the trade union committee of the NPGU at the “Lesnaya” mine. The search of the premises of the trade union committee at the “Vizeiskaya” mine and confiscation of the NPGU’s documents were in accordance with the search warrant sanctioned by the public prosecutor of Chervonograd, pursuant to section 177 of the Code of Criminal Procedure. In its subsequent communication, dated 11 June 2007, the Government indicates that, on 27 January 2006, the Sokalsky District Department of the GUMVD in Lvov region instituted criminal proceedings with regard to the allegations of misuse of mine funds by the officials of the “Lvovugol” state holding company. Under these criminal proceedings, investigations into payments made by the “Lesnaya”, “Zarechenskaya” and “Vizeiskaya” mines were carried out. During the pre-trial investigation, some financial and economic documents and records were confiscated from the abovementioned mines as evidence in the criminal proceedings. However, this case does not concern trade union activities and trade unions at these mines are not under investigation. Therefore, no trade union documents were confiscated from the unions.
21. – Kherson port: An inspection carried out by the Kherson regional state labour inspectorate into the allegations of pressure exerted on members of the primary trade union organization of the All-Ukrainian Trade Union (AUTU) “Defence of Justice” by the administration of the Kherson Commercial Seaport established that the only trade union active at the port is a primary trade union affiliated to the Trade Union of Maritime Transport Workers of Ukraine. There is no evidence of existence and functioning in the port of the AUTU “Defence of Justice” primary trade union. The Kherson regional state labour inspectorate has received no complaints from the workforce or the trade union committee.
22. – Kharkiv State University of Arts: (1) The Kharkov regional state labour inspectorate established that the collective agreement for 2004–09, between the university’s administration and the Trade Union of Cultural Workers of Ukraine, was approved by the workers’ general assembly and registered in the executive committee of the Dzerzhinsk district council on 11 February 2004. On 27 February 2006, the chairperson of the primary trade union organization affiliated to the AUTU “Defence of Justice” at Kharkiv State University of Arts addressed a letter to the rector of the university requesting to conduct collective bargaining for the conclusion of a collective agreement. In her reply, the rector of the university suggested that the chairperson of the primary trade union organization of the AUTU “Defence of Justice” contact the Trade Union of Cultural Workers of Ukraine with a view to setting up a unified representative body for conducting negotiations to revise the collective agreement. In the course of the verification, no documents came to light that would confirm that the chairperson of the primary trade union organization of the AUTU “Defence of Justice” had contacted the chairperson of the Trade Union of Cultural Workers of Ukraine. (2) With regard to the payment of trade union dues, the Kharkov regional state labour inspectorate has ascertained that no written statements addressed to the rector had been received from the members of the primary trade union organization of the AUTU “Defence of Justice” requesting the payment of trade union dues to this trade union, despite the fact that by a letter of 6 September 2006, the Chairperson of the AUTU “Defence of Justice” at Kharkiv State University of Arts, had been informed that a written request of the worker, addressed to the rector of the university was needed for the deduction and transfer of trade union dues.
23. – “Snejnoeatratsit” state enterprise: With regard to the allegations of dismissal of a trade union member without a prior approval of the union, the Donetsk regional state labour inspectorate established that Mr D.V. Kotovsky was employed by the “Zarya” subdivision of the “Snejnoeatratsit” state enterprise from 16 November 2005. He was dismissed as of 1 March 2006 by an order of 18 May 2006, in accordance with section 40(4) of the Labour Code for absenteeism. An investigation into the matter established that on 28 February 2006, Mr Kotovsky, a member of the Trade Union of Workers of the Coalmining Industry (PRUP), submitted an application to join the Independent Trade Union of the Coalmining Industry. In accordance with the requirements of section 43 of the Labour Code, if a worker is a member of more than one primary trade union organization, consent for his dismissal is given by the elected body of the trade union to which the employer addresses the request for consent. Mr Kotovsky was informed in writing of the date of the PRUP committee meeting but failed to attend it. A commission comprising the head of the section where Mr Kotovsky used to be employed and representatives of the PRUP trade union went to his place of residence to ascertain the reason for his absence from work. The commission established that Mr Kotovsky was not living at home and his neighbours had not been informed of his whereabouts. Thereafter, the PRUP gave its consent for his dismissal on 1 March 2006.
24. – The Mariupol Commercial Seaport: The Donetsk regional state labour inspectorate has established that the primary trade union of the AUTU “Defence of Justice” of the Mariupol Commercial Seaport was registered in Kiev on 12 April 2006, with a membership of four persons. The Chairperson of the trade union died in a car accident in the summer of 2006; another trade union member was dismissed from the enterprise for absenteeism under section 40(4) of the Labour Code and his suit for reinstatement is currently being examined in a judicial procedure; two other members left the trade union voluntarily. Given that, currently, there are no members of the primary trade union organization of the AUTU “Defence of Justice” at the Mariupol Commercial Seaport, trade union dues are not being paid. According to the port administration, no other requests concerning payment of trade union dues to the primary trade union organization of the AUTU “Defence of Justice” have been received.
25. – “Mariupol Ilyich Metallurgical Complex”: With regard to the recognition of the trade union and the provision of facilities, the Donetsk regional state labour inspectorate established that, in accordance with the report of the constituent assembly of 1 February 2005, the primary trade union organization of the AUTU “Defence of Justice” was established in the plant with a membership of six persons. The organization was registered on 13 March 2005. On 21 March 2005, its Chairperson, Mr Simonik, informed the management of the enterprise of the registration of the trade union and, in accordance with section 12 of the Law on Trade Unions, requested that the trade union be provided with premises and the necessary equipment, communications facilities and security services. His request was denied. In accordance with the collective agreement in force, the management of the plant provided the primary trade union of the “Mariupol Ilyich Metallurgical Complex” with a two-floors trade union building, lighting, means of communication, heating and security services. The investigation revealed that Mr Simonik had not contacted the chairperson of the primary trade union of the “Mariupol Ilyich Metallurgical Complex” regarding the provision of premises in the trade union building to the primary trade union organization of the AUTU “Defence of Justice”.
26. – “Krimsky Titan” enterprise: A unified representative body to draft collective agreement for 2007–09, which included the chairperson of the primary trade union organization of the NPGU, was set up on 20 December 2006.
27. – “VK Dnepropetrovsk enterprise”. The Dnepropetrovsk regional state labour inspectorate established that Ms Pribudko was dismissed on 21 July 2006 pursuant to section 41(2) of the Labour Code for absenteeism. Civil proceedings on her reinstatement are currently pending before the Babushkinsk district court in Dnepropetrovsk.
28. – Sosnitsa city boarding school: According to the chief administration of labour and social protection of the Chernigov regional state administration, there was no pressure exercised by the institution on the members of the primary organization of the Free Trade Union of Education and Science of Ukraine. The organization ceased its activity after all trade union members left the union, as attested by their statements, for the reasons of absence of formal registration of the union, non-payment of dues by trade union members and mistrust in the organizational activities of its leader. However, the district organization of the Free Trade Union of Education and Science of Ukraine is still active. The Government further indicates that the allegations of threats by the director of the school to use force against Ms L.N. Batog, the Head of the district organization of the Free Trade Union of Education and Science of Ukraine were not confirmed and therefore, criminal proceedings were not instituted. Ms Batog terminated the contract of employment, and, on 25 December 2006, ceased her employment at the boarding school in accordance with section 36(1) of the Labour Code (by mutual agreement).
29. – Kiev Metro: (1) The Kiev regional state labour inspectorate has conducted an investigation into the allegation of refusal to set up a unified representative body for the conclusion of a collective agreement between the management and the trade union organizations. It has been established that, on 8 December 2004, at the general assembly of the representatives of the Trade Union of Railway and Transport Construction Workers of Ukraine and the Free Trade Union of Workers of the Kiev Metro, a unified representative body was set up for the conclusion of a collective agreement for 2005–06. The concluded agreement is currently in force. The investigation further revealed that, in accordance with an order of 5 July 2006 on changes in the organization of work of engine depot operators, a system of averaging of working hours was established. However, this order was issued without the agreement of the executive committee of the free trade union, in violation of section 61 of the Labour Code. An injunction was therefore issued ordering the management of the enterprise to eliminate the said violation of labour legislation. According to the Kiev city state administration, appropriate action was taken with the management of the enterprise and the trade union organizations. A meeting was held with the acting head of the municipal enterprise Kievsky Metropoliten, the managers of the structural subdivisions, the Chairperson of the United Trade Union Organization of the Kiev Metro and the Chairperson of the Free Trade Union of Workers of the Kiev Metro to discuss the social and labour relations at the enterprise. With regard to the demand of the Chairperson of the Free Trade Union of Workers of the Kiev Metro (which comprises less than 3 per cent of the workforce) to sign a collective agreement, the Metro management does not have the right to decide on this issue, since the authority to sign on behalf of the workforce was granted by the workers’ conference to the Chairperson of the United Trade Union Organization. Pursuant to section 12 of the Labour Code and section 37 of the Law on Trade Unions, if more than one primary trade union organization has been established in an enterprise, such organizations should, based on the principle of proportional representation and at the initiative of any of them, set up a unified representative body for the conclusion of a collective agreement. In accordance with the legislation in force, the decision to establish a representative body is taken by the trade unions independently. Any interference by the Government, employers or their associations in the activities of trade unions or their organizations or associations is prohibited (section 12 of the Law on Trade Unions). (2) With regard to the allegation of anti-union discrimination suffered by Ms Ivanova-Butovich, who was allegedly subjected to a heavier workload than other operators, the Government informs that Ms Ivanova-Butovich has worked as an operator of an engine depot since 1987. She was informed of her duties at the time of her recruitment. She has performed the same work for a long period of time. After the creation of a new structural subdivision and the separation of the department of rolling stock and the workers of the engine depot, the responsibilities of the Metro engine depot operators did not change, the amount of work did not increase and their workload did not exceed 70 per cent (as attested by the relevant verifications). In order to achieve an even distribution of the responsibilities of operators of all Metro’s engine depots, the decision was taken to create equal working conditions. The management of the enterprise considers that Ms Ivanova-Butovich should carry out her work in accordance with the contract of employment and the description of her duties.
30. – Railway transport “Ukrzaliuznucia” (Ukrainian railways) and Lvov Railway: (1) The Government states that trade unions in the railway transport sector have equal rights with regard to representation and defence of the rights and interests of their members. (2) With regard to the allegation that the management of the Kozyatin directorate of railway refuses to provide free trade unions with an office space, the Government indicates that premises at Berdichev station were proposed for use by the CFTUU primary trade union. However, in his letter dated 23 November 2006, the Chairperson of the trade union declined the offer. The management then considered providing the premises in the administrative building of the Kozyatin branch of the carriage division of Kiev-Passazhirsky station, which could be made in the second half of 2007, after the completion of certain administrative formalities. Currently, premises in the assembly hall of the board of directors are provided for conducting meetings of the members of the free trade union. (3) Allegations of anti-union dismissal of workers of the structural subdivisions of the railway have repeatedly been examined by specialists of Ukrainian railways and by the relevant railway services. Mr S.S. Smereka, passenger carriage conductor of the Uzhgorod passenger carriage division of the Lvov Railway, was dismissed from work on 31 August 2006 on the basis of section 40(4) of the Labour Code for a long-term absence without valid reason. Having examined Mr Smereka’s suit for reinstatement, the Uzhgorod municipal court and the district court of the Zakarpattya region ruled in favour of the Uzhgorod passenger carriage division of the Lvov Railway. The CFTUU of the Lvov Railway filed a suit for Mr Smereka’s reinstatement and the hearing was set for 15 March 2007. (4) With regard to the participation of the Chairperson of the Association of Free Trade Unions of Railway Workers, Mr G.M. Nedviga, in the senior management meetings of the Ukrainian railways, the Government explains that the senior management meetings in the state administration of the railway transport is one of the forms of management aimed at organization and supervision of the transportation process and the economic activity of railway transportation in Ukraine. Therefore, participation of the chairperson of a trade union in senior management meetings is not obligatory.
31. 159. The Government states that the Collegium of the Ministry of Labour and Social Policy held a session to discuss the observance of Convention No. 87 in Ukraine. The Labour and Social Policy Committee of the Supreme Council also had a meeting to discuss the observance of the rights of trade unions and employers’ organizations in Ukraine. The Government indicates that every complaint by the social partners is carefully examined by an independent commission, composed of the representatives of the state inspection bodies and social partners, set up to that end. Moreover, the Ministry of Labour and Social Policy has introduced a practice of meeting with the social partners to discuss such matters. Between 2006 and 2007, three working meetings were held at which representatives of the Government and trade unions discussed, among other topics, compliance of the legislative provisions with international standards on freedom of association and protection of the right to organize. The CFTUU and the FPU, the largest trade union, have given a positive assessment of the Government’s work to address these issues. The Government understands that such events are a key element in the set of legislative, organizational, legal and institutional measures carried out by the Government with a view to creating a conducive environment for the free development of trade unions and employers’ organizations in accordance with the provisions of ILO Conventions.
32. 160. By a Communication dated 24 October 2007, the CFTUU transmits its comments on the measures taken by the Government to implement the Committee’s recommendations and alleges further violations of trade union rights.
33. 161. The Committee notes with interest the efforts made by the Government to resolve the pending issues brought to the attention of the Committee through active participation in national tripartite mechanisms set up to examine complaints of the social partners. It further notes with interest the constructive dialogue, which appears to have been taking place between the Government and the two largest trade union centres in respect of freedom of association and the protection of the right to organize.
34. 162. The Committee notes the detailed information provided by the Government on the implementation of the Committee’s previous recommendations. The Committee regrets that no information was provided in respect of the Committee’s previous request to indicate whether appropriate compensation was paid to those trade unions of the Western Donbass Association of the NPGU, which suffered material damage due to the illegal search on 12 November 2002. It therefore once again requests the Government to provide its observations in this regard. With regard to its previous request to provide information on the reasons for the dissolution of the All-Ukrainian Union of Football Players, the Committee regrets that the Government did not indicate the reason behind the initial decision of the Kiev Appellate Economic Court to declare invalid the by-laws of the All-Ukrainian National Union of Football Players. The Committee requests the Government to transmit the relevant court decisions concerning the case of the All-Ukrainian National Union of Football Players. The Committee further requests the Government to keep it informed of the decision reached by the Higher Economic Court in the case filed by the enterprise trade union to contest the findings of two inspections conducted at the “Ilyich” metallurgical enterprise concerning the alleged violations of trade union rights and to transmit the corresponding judicial decision.
35. 163. The Committee notes the Government’s indication that no primary trade union of the AUTU “Defence of Justice” exists in Kherson Port. The Committee recalls the complainant’s allegation of an anti-union campaign aimed at preventing the establishment of a free and independent trade union at the port. In this respect, the Committee recalls that anti-union tactics aimed at preventing the establishment of workers organizations are contrary to Article 2 of Convention No. 98, which provides that workers’ organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents or members in their establishment, functioning and administration. The Committee trusts that the Government will ensure the application of this principle.
36. 164. The Committee recalls the complainant’s allegation of preferential treatment given by the management of the Ukrainian railways enterprise to the old “state” trade union by inviting its leaders to the meetings with the management and not extending the same privilege to the CFTUU-affiliated unions. While noting the Government’s statement that participation in the management meetings is not obligatory, the Committee expresses a note of caution that by extending an invitation to participate in the meetings with the enterprise management to one organization and not to another, may be an informal way of showing favouritism to one organization and thereby influencing the trade union membership of workers. The Committee requests the Government to take the necessary measures so as to ensure that the management of the Ukrainian railways refrains from any such favouritism.
37. 165. The Committee notes the information provided by the Government in respect of the dismissal of a trade union member of the AUTU “Defence of Justice” from the Mariupol Commercial Seaport, as well as the dismissals of the founder of the CFTUU primary trade union at the “VK Dnepropetrovsk enterprise” and the Chairperson the CFTUU primary trade union at the Lvov Railway. Noting that judicial proceedings are currently pending in respect of the abovementioned cases, the Committee requests the Government to keep it informed of their outcomes once the final decisions have been handed down.
38. 166. The Committee notes the information transmitted by the CFTUU and requests the Government to transmit its observations thereon.