Definitive Report - Report No 318, November 1999

1. 463. The complaint of the Kharkov Region Trade Union Association is contained in a communication dated 25 December 1998. The Government sent its observation in communications dated 9 March and 20 August 1999.
2. 464. 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. 465. In its communication dated 25 December 1998, the Kharkov Region Trade Union Association alleges a violation of Article 7 of Convention No. 87 by the judicial authority of Ukraine. The complainant organization explains that this violation concerns the refusal by the courts of Ukraine to examine the substance of a claim lodged by the Free Trade Union of the joint-stock company "Kharkov Bearing Plant" which is a member of the Kharkov Region Trade Union Association. In that claim, the Free Trade Union of the joint-stock company "Kharkov Bearing Plant" asked the courts of Ukraine for the recognition of its right to organize the administration and the activities of its union.
2. 466. The Free Trade Union of the joint-stock company "Kharkov Bearing Plant" had previously requested the "Kharkov Bearing Plant" company to provide premises for the use of its union committee in accordance with article 249 of the Ukraine Labour Code. This request was allegedly ignored by the management of the enterprise. Following that refusal, the Free Trade Union of the joint-stock company "Kharkov Bearing Plant" lodged a complaint before the Ordzhonikidze District Court for the recognition of its right to organize its administration and activities. The District Court ruled on 13 September 1996 that there were no provisions in the legislation of Ukraine for the examination of the abovementioned dispute between two legal entities by a district court and that there was an indication that this was a matter for the arbitration courts. The District Court concluded that this dispute did not fall within the jurisdiction of the Ordzhonikidze District Court of Kharkov. The appeal lodged by the Free Trade Union of the joint-stock company "Kharkov Bearing Plant" before the Kharkov Regional Court and the Supreme Court of Ukraine was rejected on the same motives.
3. 467. The complainant organization declares that articles 221 and 249 of the Ukraine Labour Code guarantee a trade union the right to lodge a complaint for the recognition of their trade union rights and those of its members before a district court. The complainant organization states further that a trade union and its members have the right to lodge a complaint in a court of law in order to have their trade union rights recognized and defended. The complainant organization based its argument on article 11 of the Law on Trade Union Rights and Guarantees of their Activities and article 24 of the Civil Procedural Code of Ukraine.

B. The Government's reply

1. 468. In its communication dated 9 March 1999, the Government states that the Ministry of Labour and Social Policy, in consultation with the Supreme Court of Ukraine, had examined the complaint brought before the ILO by the Kharkov Regional Trade Union Association concerning the refusal of the courts to examine the claim made by the Free Trade Union of the joint-stock company "Kharkov Bearing Plant". As the Supreme Court had indicated, the courts' position was based on section 24 of the Civil Procedural Code of Ukraine and section 12 of the Arbitration Procedural Code of Ukraine, according to which disputes arising in matters relating to civil and industrial relations in law between parties that are legal entities was subject to the jurisdiction of arbitration tribunals. It was on these grounds (the parties to this dispute being legal entities) that the union's formal request to the company for premises to be provided for the use of its committee was turned down on 13 September 1996 by the Ordzhonikidze District Court in Kharkov. However, the Government explains that this does not in any way imply that trade unions have no legal protection. A dispute of this type, as the union was informed, is subject to the jurisdiction of arbitration tribunals rather than that of the general courts. The Government adds that article 221 of the Ukraine Labour Code sets the procedure for examining individual labour disputes rather than disputes between two legal entities.
2. 469. In addition, the Government explains that the substance of the dispute between the Free Trade Union of the joint-stock company "Kharkov Bearing Plant" and the company can be summarized as follows: A number of different trade union organizations operate at the joint-stock company in question, namely the following: the Union of Automobile and Agricultural Machine-Building Workers (about 5,000 workers); the Free Trade Union of the All-Ukraine Workers' Solidarity Association (40 workers); and the Free Trade Union of the Undertaking (seven workers). The Government admits that article 249 of the Ukraine Labour Code provides that undertakings, establishments and organizations are required to provide trade union committees free of charge with premises and the necessary equipment for the work of the committee and for workers' meetings. Furthermore, the Government explains that section 4 of the Act concerning Collective and Workplace Agreements states that where there is more than one trade union or confederation of trade unions, or other body authorized by work collectives to represent them, in an enterprise or at the state, branch or territorial level, they shall establish a joint representative body for purposes of bargaining and concluding collective and workplace agreements.

C. The Committee's conclusions

1. 470. The Committee notes that the Free Trade Union of the joint-stock company "Kharkov Bearing Plant", which is a member of the Kharkov Region Trade Union Association, had lodged a complaint before the Ordzhonikidze District Court, the Kharkov Regional Court and the Supreme Court of Ukraine. The substance of the complaint, which was never examined by the courts, concerned the granting of premises free of charge by the Kharkov Bearing Plant in favour of the Free Trade Union which regroups seven workers in an undertaking of over 5,000 workers. As it appears from the decision of the Kharkov Regional Court as well as the decision of 16 January 1997 of the Supreme Court of Ukraine, the Ordzhonikidze District Court was not the competent jurisdiction under the legislation of Ukraine as stated in article 24 of the Civil Procedural Code of Ukraine and section 12 of the Arbitration Procedural Code of Ukraine. The Committee also notes that according to the Civil Procedural Code of Ukraine and the Arbitration Procedural Code of Ukraine, trade unions have legal protection as they have the right to ask a court of law for the recognition of their trade union rights. However, the Committee notes that according to the Government, as well as according to the legal provisions in force in Ukraine and court decisions, disputes of this type are subject to the arbitration courts rather than general courts.
2. 471. The Committee considers that since the Government has informed the Free Trade Union of the joint-stock company "Kharkov Bearing Plant" of its right to address its claim before the arbitration court which is the competent body in this matter, this case does not call for further examination.