Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report. It further notes the Government’s reply to the comments made by the Confederation of Free Trade Unions of Ukraine (KSPU) and by the Federation of Trade Unions of Ukraine (FPU), examined in the 2005 observation, concerning legislative issues previously raised by the Committee.

The Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) in its communications dated 31 August 2005 and 10 August 2006 on the application of the Convention which concern the issue of trade union registration, restrictions on the right to strike, as well as interference in trade union activities and harassment of trade unionists in practice. While noting that some of these matters were dealt with in Case No. 2388 (see 337th and 342nd Reports), pending before the Committee on Freedom of Association, the Committee nevertheless requests the Government to transmit its observations thereon with its next report.

The Committee notes the last examination of Case No. 2038 by the Committee on Freedom of Association (see 338th Report).

1. Law on employers’ organizations. The Committee recalls that in its previous comments on the Law, it requested the Government to repeal section 31 of the Law, which provided that the bodies of the state authority shall exercise control over economic activities of employers’ organizations and their associations. The Committee notes the Government’s statement that employers’ organizations cannot be forced to implement instructions or orders which are not provided for by law or which are of a criminal nature. The Committee recalls, however, that the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes, in particular, autonomy and financial independence and the protection of the assets and property of these organizations (see 1994 General Survey on freedom of association and collective bargaining, paragraph 124). The Committee therefore requests that the Government repeal this provision. Noting that the draft amendments to the Law are being prepared, the Committee hopes that the Committee’s comments in this regard will be taken into account and requests the Government to keep it informed of any development in this respect.

As to the Committee’s previous request to indicate the manner in which employers’ organizations are representing employers at national level, the Committee notes the Government’s detailed explanation and reference to the Law on collective agreements. The Committee notes in particular the Government’s indication that, at the national level, employers are represented by employers’ organizations with all-Ukrainian status. If there is more than one employers’ organization, they have an option of either setting up a single representative body for the purpose of collective bargaining or delegating the authority to one employers’ organization.

2. Trade union registration. The Committee recalls that in its previous comments, it had noted the contradiction between section 3 of the Act of Ukraine on the State Registration of Legal Persons and Physical Persons-entrepreneurs (2003), providing that “the associations of citizens (including trade unions), for which special conditions for state registration have been established under the Act, shall obtain the status of legal person only after their state registration” and section 87 of the Civil Code (2003), according to which, an organization acquires its rights of legal personality from the moment of its registration, on the one hand, and section 16 of the Trade Unions Act, as amended in June 2003, providing that a trade union acquires the rights of a legal person from the moment of the approval of its statute and that a legalizing authority confirms the status of a trade union and no longer has a discretionary power to refuse to legalize a trade union, on the other. The Committee notes with interest the Government’s statement that, on 19 October 2006, the Act to Amend the Act of Ukraine on the State Registration of Legal Persons and Physical Persons-entrepreneurs will enter into force. Under this Act, the reference to trade unions will be deleted from section 3. The Government does not, however, provide its comments on section 87 of the Civil Code. The Committee requests the Government to provide a copy of the Act of 19 October 2006 and to indicate the measures taken or envisaged to further amend section 87 of the Civil Code so as to eliminate the contradiction within the national legislation and so as to fully guarantee the right of workers to establish their organizations without previous authorization.

3. Right of workers’ organizations to organize their activities freely. The Committee had previously requested the Government to amend section 19 of the Act on the procedure for the settlement of collective labour disputes, which provided that a decision to call a strike had to be supported by a majority of the workers or two-thirds of the delegates of a conference. The Committee notes the Government’s indication that the provision concerning the adoption of the decision by the majority of workers applies to enterprises where the number of workers is such as to allow for the possibility in practice of holding a workers’ assembly. If, however, the enterprise employs a large number of workers, they shall elect delegates to a conference, setting the number of delegates representing a given number of workers. In this case, the decision to declare a strike shall be taken by two-thirds of the conference delegates. There is a clear distinction between small enterprises, in which workers’ assembles are held, and large enterprises, in which conferences of workers’ delegates are held. The Government therefore asserts that there is no risk of any restriction on the right to strike. While taking note of the Government’s explanation, the Committee considers that if the national legislation requires a vote before a strike can be held, it should ensure that account is taken only of the votes cast and majority fixed at a reasonable level (see General Survey, op. cit., paragraph 170). The Committee once again asks the Government to take the necessary measures to amend section 19 of the Act on the procedure for the settlement of collective labour disputes accordingly.

In its previous observation, the Committee requested the Government to provide information on the practical application of article 293 of the Penal Code according to which organized group actions that seriously disturb public order or significantly disrupt operations of public transport, any enterprise, institution or organization and active participation therein are punishable by a fine of up to 50 minimum wages or imprisonment for a term of up to six months and, in particular, in respect of an industrial action. In view of the absence of the Government’s reply in this respect, the Committee reiterates its request.