Report in which the committee requests to be kept informed of development - Report No 367, March 2013

Case No 2890 (Ukraine) - Complaint date: 22-JUL-11 - Closed

Allegations: The complainant organization alleges interference in the establishment of trade union organizations, as well as cases of harassment of trade union leaders and the attempt by the State to seize the Federation of Trade Unions of Ukraine’s (FPU) property

1. 1240. The Committee examined the substance of this case at its June 2012 meeting, when it presented an interim report to the Governing Body [see 364th Report, paras 1019–1059, approved by the Governing Body at its 315th Session (June 2012)].
2. 1241. The Government sent its observations in a communication dated 24 September 2012.
3. 1242. 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. Previous examination of the case

1. 1243. In its previous examination of the case, the Committee made the following recommendations [see 364th Report, para. 1059]:
   • (a) The Committee invites the Government to engage in consultations with the trade union organizations concerned in order to settle the question of the assignment of property. It requests the Government to provide information on the development of the situation and, in particular, on any agreement which may be reached in this respect.
   • (b) The Committee requests the Government to provide its observations on the remaining alleged instances of the interference in the FPU and its affiliates’ trade union affairs. It further requests the Government to provide its observations on the two 2011 decisions of the Shevchenkivski District Court of Kiev.
   • (c) The Committee requests the Government to institute an independent inquiry into the allegation of the establishment of the Trade Union of the Sea Transport Employees (United) by, or upon, the initiative of employers and to provide information on its outcome.

B. The Government’s reply

1. 1244. In its communication dated 24 September 2012, the Government first provides historical background information in relation to the question of the assignment of property which is raised in the Committee’s recommendation (a). It then indicates that Order No. 3943-XII of 4 February l994 of the Supreme Council of Ukraine, “On the property of all-Union civil society organizations of the former Union of Soviet Socialist Republics”, provided that, provisionally, pending legislation to determine the holders of rights of ownership of the property of all-Union civil society organizations of the former USSR located on the territory of Ukraine, this property belongs to the State.
2. 1245. The Government adds that, in order to implement Instruction No. 31604/4/1-11 of 12 August 2011 of the Prime Minister of Ukraine, the Ministry of Economic Development and Trade of Ukraine has prepared a draft law of Ukraine “On the legal regime governing the property of all-Union civil society associations (organizations) of the former Union of Soviet Socialist Republics”. The draft law proposes a legal regime for the property of civil society associations or organizations of the former USSR, namely State ownership or shared ownership between the State and the civil society organization concerned, their relative shares being determined through a procedure laid down by the Government.
3. 1246. The Government indicates that the prosecution authorities in Ukraine are taking measures to restore property to State ownership through the courts, where State property has been alienated (seized) without legal justification by legal entities for the benefit of private individuals. In order to implement the decisions of the courts on the return of property to State ownership, the Cabinet of Ministers of Ukraine is appointing an executive body which will be entrusted with managing the property in question. Accordingly, pursuant to Instruction No. 10024/0/2-12 of 6 August 2012 of the Cabinet of Ministers of Ukraine, the State Property Fund of Ukraine (the Fund) submitted for consideration by the Government of Ukraine a draft Cabinet directive on “Certain matters relating to the management of property of all- Union civil society organizations of the former USSR being returned to State ownership by a court decision”, which provides, inter alia, for the Fund to determine the authority which will manage the property of all-Union civil society organizations of the former USSR which is being returned to State ownership by a decision of a court.
4. 1247. The Government further indicates that, in view of the complexity of the issues which have arisen, the Cabinet mandated the Fund (through Instruction No. 57011/3/1-11 of 4 January 2012) to hold a consultative meeting between the directors of the Fund and the FPU, with the participation of representatives of the implementing ministries. The Government further indicates that, at this meeting which took place on 13 January 2012, the participants agreed that it was necessary to work together to draw up a list of the property which, as at 24 August 1991 (date of the proclamation of the independence of Ukraine), was being managed, held and used by the trade unions of Ukraine, to compile an inventory of this property with the participation of representatives of the State, and to create a mechanism for managing it effectively. It was also agreed that there should be further consideration of the future use and disposal of property returned to State ownership from third parties by a decision of the courts. This meeting resulted in the signing of the Agreement on Cooperation between the Fund and the Federation of Trade Unions of Ukraine, No. 73 of 17 February 2012. Paragraph 5 of the Agreement provides that on the signing and entry into force of the instruments for the acceptance and transfer of property being returned by a decision of the courts to the ownership of the State through an executive procedure, the FPU or management bodies set up with its involvement ensure the safekeeping and conservation of the property. Under paragraph 6 of the Agreement, the parties agreed on the need to draft joint proposals on possible options for the future use and/or disposal of the property which, as at 24 August 1991, was being managed, held and used by the FPU and the business entities set up with its involvement.
5. 1248. The Government points out that joint working meetings are held in the Fund, as needed, interested persons being invited to attend, in order to solve ongoing problems relating to the inventory and record of the property and proposals for its future use (decisions are deemed to be adopted if they are approved unanimously). The Government adds that during these consultations the FPU supported the draft Cabinet directive on “Certain matters relating to the management of property of all-Union civil society organizations of the former USSR being returned to State ownership by a court decision”. The draft directive has now been submitted by the Fund to the Cabinet for consideration (letter from the Fund, No. 10-24-13251 of 6 September 2012).

C. The Committee's conclusions

1. 1249. The Committee recalls that the present case concerns allegations related to interference in the establishment of trade union organizations, as well as cases of harassment of trade union leaders and the attempt by the State to seize the Federation of Trade Unions of Ukraine’s (FPU) property.
2. 1250. The Committee notes the information provided by the Government with regard to the issue of the assignment of property (recommendation (a)). The Committee notes in particular the Government’s indication that, in view of the complexity of the issues which have arisen, the Cabinet mandated the State Property Fund of Ukraine (through Instruction No. 57011/3/1-11 of 4 January 2012) to hold a consultative meeting between the directors of the Fund and the FPU, with the participation of representatives of the implementing ministries. The Government further indicates that, at this meeting which took place on 13 January 2012, the participants agreed that it was necessary to work together to draw up a list of the property which, as at 24 August 1991 (date of the proclamation of the independence of Ukraine), was being managed, held and used by the trade unions of Ukraine, to compile an inventory of this property with the participation of representatives of the State, and to create a mechanism for managing it effectively. It was also agreed that there should be further consideration of the future use and disposal of property returned to State ownership from third parties by a decision of the courts. This meeting resulted in the signing of the Agreement on Cooperation between the Fund and the Federation of Trade Unions of Ukraine, No. 73 of 17 February 2012. Paragraph 5 of the Agreement provides that on the signing and entry into force of the instruments for the acceptance and transfer of property being returned by a decision of the courts to the ownership of the State through an executive procedure, the FPU or management bodies set up with its involvement ensure the safekeeping and conservation of the property. Under paragraph 6 of the Agreement, the parties agreed on the need to draft joint proposals on possible options for the future use and/or disposal of the property which, as at 24 August 1991, was being managed, held and used by the FPU and the business entities set up with its involvement.
3. 1251. The Government points out that joint working meetings are held in the Fund, as needed, interested persons being invited to attend, in order to solve ongoing problems relating to the inventory and record of the property and proposals for its future use (decisions are deemed to be adopted if they are approved unanimously). The Government adds that during these consultations the FPU supported the draft Cabinet directive on “Certain matters relating to the management of property of all-Union civil society organizations of the former USSR being returned to State ownership by a court decision”. The draft directive has now been submitted by the Fund to the Cabinet for consideration (letter from the Fund No. 10-24-13251 of 6 September 2012).
4. 1252. The Committee welcomes the initiative taken by the Government to consult the FPU on this matter of direct interest to it and requests the Government to keep it informed of any further developments in this regard.
5. 1253. In relation to recommendation (b), the Committee recalls that the Government provided its observations on a number of alleged instances of interference by the authorities in the activities of the FPU and its affiliates. These allegations include: inquiry into trade union fees paid to the structural organizations of the Trade Union of Workers of Education and Science of Ukraine; inquiry into the receipt and the use of trade union dues paid by students to the trade union committee of the Nadvirnya technical college No. 11 in Ivano-Frankivsk; instruction given by the General Prosecutor’s Office on 23 May 2011 to the FPU not to examine certain issues at the sitting of its presidium on 24 May 2011; and request by the Prosecutor’s Office of the Bagliysky region of Dneprodzerzhynsk city in Dnepropetrovsk region addressed to the Chairperson of the trade union committee of the “Dnepr AZOT” to produce notarized copies of the trade union committee statutes, staff list and decisions adopted at trade union meetings between 2010 and 2011.
6. 1254. Moreover, the Committee recalls that it is still awaiting the Government’s observations on two 2011 decisions of the Shevchenkivski District Court of Kiev (in the first decision, the court declared illegal the decision by the Statutory Commission of the FPU not to include one more candidate in the list of the candidates for the FPU Chairperson election and obliged the organization to take a decision on the inclusion of this candidate in the list of candidates; in the second decision, the court invalidated the decision of the 10th Kiev City Trade Union Conference of 17 December 2010 and reinstated, in the position of the Chairperson, the candidate who did not have the majority of votes), which, based on the information provided by the complainant, appear to interfere with the right of trade unions to elect their representative in full freedom.
7. 1255. With regard to recommendation (c), the Committee recalls that it requested the Government to institute an independent inquiry into the FPU’s allegation that the Trade Union of the Sea Transport Employees (United) was established upon the initiative and involvement of the Deputy Chairperson of the National Sea and River Transport Agency of Ukraine and employers of sea transport companies, whereas some of the employees requested to vote for the creation of that union were members of an FPU-affiliated union.
8. 1256. With regard to these two recommendations (b) and (c), the Government indicates that it will be submitting information and comments on the matters concerned, which are being considered by the competent executive authorities, at the request of the Ministry of Social Policy. In these circumstances, the Committee requests the Government to ensure that the above allegations are investigated through independent inquiries and to keep it informed of the results of such inquiries.

The Committee's recommendations

1. 1257. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting with interest the information provided by the Government in relation to the meeting held between the directors of the State Property Fund of Ukraine and the FPU, with the participation of representatives of the implementing ministries, in order to settle the question of the assignment of property, as well as the Agreement reached, the Committee requests the Government to keep it informed of further developments in this regard.
   • (b) As concerns the remaining alleged instances of the interference in the FPU and its affiliates’ trade union affairs, the Committee requests the Government to ensure that these allegations are investigated through independent inquiries and to keep it informed of the results of such inquiries. Moreover, it once again requests the Government to provide its observations on the two 2011 decisions of the Shevchenkivski District Court of Kiev.
   • (c) The Committee once again requests the Government to institute an independent inquiry into the allegation of the establishment of the Trade Union of the Sea Transport Employees (United) by, or upon, the initiative of employers and to provide information on its outcome.