Interim Report - Report No 337, June 2005

1274. The complaint was presented in a letter dated 7 October 2004 from the International Confederation of Free Trade Unions (ICFTU), the Confederation of Free Trade Unions of Ukraine (CFTUU) and the Federation of Trade Unions of Ukraine (FPU). In a communication dated 26 October 2004, the FPU supplied further information. The CFTUU sent additional information in communications dated 10 October and 5 November 2004, and 13 and 20 January 2005. The CFTUU transmitted further additional information contained in communications dated 28 February, 28 March and 7 April 2005.

1. 1275. The Government forwarded its observations in communications dated 16 November, 10, 15 and 28 December 2004.
2. 1276. 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 complainants’ allegations

1. 1277. In their communications, the International Confederation of Free Trade Unions (ICFTU), the Confederation of Free Trade Unions of Ukraine (CFTUU) and the Federation of Trade Unions of Ukraine (FPU) allege 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. The specific allegations concern the following trade union organizations and their affiliates.
2. The Confederation of Free Trade Unions
3. of Ukraine (CFTUU)
4. Independent Trade Union of Miners (NPGU)
5. 1278. The complainants submitted the following allegations concerning violations of trade union rights of the NPGU, affiliated to the CFTUU.
6. 1279. From May to July 2001, agents of the Security Service of Ukraine (SBU) paid visits to the trade union leaders to “establish contacts”, during which they inquired about internal affairs of the NPGU and the NPGU’s attitude towards political opposition in the country. Special attention was paid to the forthcoming NPGU Congress and the CFTUU president, Mr. Volynets. In particular, leaders of the regional NPGU trade union organizations at the “Chaykino” and “Rodinskaya” mines, in Kirov city, and at the “Donbassantransit” and “Krasnoarmeyskugol” enterprises, were approached by the SBU officials, as well as by the officials of the regional department of internal affairs, with suggestions to cooperate with the authorities. Trade union leaders were asked to list the delegates to the forthcoming NPGU Congress and requested, sometimes with monetary incentive, to help to change the NPGU leadership. The complainants further allege that in 2004, the SBU officials frequently visited the Donbass office of the NPGU to inquire about its activities. During February-March 2004, SBU officials paid home visits to the accountant and the President of the Shakhtyorsk city NPGU organization. The SBU officials expressed interest in the internal activities of this trade union organization and in trade union members’ political opinions. In February and March 2004, Mr. Volynets requested the SBU to conduct an inquiry into the allegations of anti-union discrimination and violation of workers’ right to establish and join organizations of their own choosing and on the SBU’s interference in the activities of the NPGU. The SBU replied that it had examined the complaints but that no proof of interference had been found.
7. 1280. In June 2001, following numerous wage arrears-related strikes, which took place at the mines of “Shahterskugol” enterprise in Donetsk region, the employer and the Governor of the region launched an anti-union campaign, which included pressure, intimidation and threats of dismissal against the NPGU members working at the “Postnikovskio”, “Pervomai”, “Vinintzkouo” and “Shahtersko-glubokoe” mines. Furthermore, according to the complainants, SBU agents tried to influence the chairpersons of the NPGU councils of these mines (Mr. Shtulman, Mr. Netkachev and Mr. Kantsurak). The representative of the State Health and Safety Agency threatened Mr. Shtulman with dismissal and with a “possible accident” which could happen to him or his family members. Following these threats, on 1 July 2001, on his way home from work, Mr. Shtulman was forced into a car by three people. The aggressors held Mr. Shtulman at gunpoint demanding that he cease his trade union activities and threatening to attack his family. Mr. Shtulman suffered several injuries. Mr. Shtulman informed the local militia about the incident but no investigation was ever launched.
8. 1281. The complainants further alleged an anti-union campaign at the state-owned “Trest Donetzkuglestroy” Ltd., which took place in July 2001. Attempts were made to discredit the NPGU and its leaders. At the “Duvannaya” and “Zolotoye” mines, the management strongly advised the delegates to the NPGU Congress to vote against the NPGU president.
9. 1282. On 12 November 2002, the police seized trade union documents from the office of Western Donbass Association of the NPGU, and of its primary organizations at the following mines: “Imeni Gueroyev Kosmosa”, “Imeni Stashkova”, “Stepnaya”, “Blagodatnaya”, “Pavlogradskaya”, “Ternovskaya”, “Zapadno-Donbasskaya”, “Dneprovskaya”, “Samarskaya” and “Yubileinaya”. The documents were seized in violation of procedural norms: trade union premises were entered without prior explanations or formal accusations, without requisition or search orders signed by a competent authority and without signing documents of seizure or issuing a report of proceedings. This took place outside of the normal working hours, sometimes at night, forcing the doors. Although the actions of the police and of the Pavlograd city prosecutor were found illegal by the Prosecutor of Dnepropetrovsk region, the union was not compensated for the material damages and several documents were lost.
10. 1283. During 2001-02, the management of the “Krasnolimanskaya” mine was refusing to recognize the NPGU primary trade union and to provide its representatives with facilities. Although the organization had been legalized according to the legislation in force, the employer has been asking the union to provide additional information on trade union members. Moreover, the employer prohibited the chairperson of the union to enter the mine. In February 2004, the Commercial Court of Donetsk ruled in favour of the lawsuit brought by the employer to cancel trade union registration. The complainants point out, however, that the Commercial Court does not have the competence to revoke trade union registration or legalization. The complainants further state that, although the Ministry of Labour had informed the ILO that it had urged the employer to stop violations of trade union rights, the situation of the union had not improved.
11. 1284. The complainants alleged systematic persecution of the NPGU members by the management of the “Krivorozhsky” iron ore plant at the “Gvardeyevskaya”, “Oktyabrskaya” and “Imeni Lenina” mines. At the “Gvardeyevskaya” mine, the human resource manager promotes, among newly recruited workers, another trade union active at the enterprise and threatens the NPGU members with transfers and obstacles to promotion. One worker was also offered a pay rise, conditional upon withdrawal from his NPGU membership. On 6 February 2004, the director of the plant conducted a meeting with the heads of production shops at the “Oktyabrskaya” mine and ordered them to take measures to destroy the NPGU by taking such measures as dismissals of trade union members within one month, nearly 300 workers had left the union, while the complainants indicate that, during the previous two years, its membership had been increasing. On 11 February 2004, trade union members submitted a complaint to the office of the city prosecutor, who concluded to an absence of trade union rights’ violations. In March 2004, the administration of the same company began a campaign against the NPGU at the “Imeni Lenina” mine. Heads of production shops were also instructed to destroy the union by a specific date. Since then, the NPGU members were intimidated and ordered to join another trade union active at the enterprise. Some trade union members were summoned during their holidays or recuperation days.
12. 1285. At the “Partizanskaya” mine (“Antratsit” coal company), the management, giving only two days notice, ordered the local organization of the NPGU to free its office. The management justified its demand by the absence of legalization of the union. The complainants explained, however, that Ukrainian law does not oblige organizations to be legalized if they belong to a legalized higher level trade union. According to the complainants, the employer was further putting pressure on trade union members by not paying their salaries on time.
13. 1286. Moreover, in October 2004, the administration of the same mine, in violation of section 44 of the Law on Trade Unions did not transfer money for the cultural activities of the NPGU primary trade union, as provided for in the tariff agreement. The money was transferred, however, to another union. The complainants also accused the administration of the “Stakhanova” mine (“Krasnoarmeyskugol” enterprise) of systematic non-transfer of money for the cultural and recreational activities in violation of the collective agreement. As of 1 January 2005, and as concerns the latter enterprise, the arrears amount to 234,952 UAH (US$44,000).
14. 1287. On 16 October 2004, the management of the “Knyagynskaya” mine attempted to hamper the holding of a trade union conference. Furthermore, the complainants alleged that one member of the trade union, Mr. Yshenko, was unlawfully dismissed. The court hearing concerning his reinstatement has been delayed for ten months already due to the failure of the management to send its representative to the court.
15. 1288. The administration of the “Krivoy Rog Steal” enterprise has been refusing for six years to provide the primary NPGU organization with an office. The requests sent to the company’s management were left without reply.
16. Trade unions in the railway sector
17. 1289. In December 2002, the Lvov region prosecutor lodged a complaint to the Commercial Court against the establishment of the Federation of Free Trade Unions of Lvov Railways and requested that the union’s statutes be declared null and void. After a year of trials, in 2004, the case was still under examination.
18. 1290. The complainants alleged an anti-union campaign at Melitopol locomotive depot, which started in October 2003 when one worker, Mr. Kuzmenko, requested a representative of the Association of Free Trade Unions of the Railway Workers (OVPZU) to explain to workers the role of trade unions. The employer did not allow the OVPZU’s representative to attend workers’ meeting. Instead, Mr. Kuzmenko was subjected to intimidation by the enterprise administration, which clearly stated that there were many lawful ways to dismiss those who come up with similar initiatives. Nevertheless, on 3 March 2004, the workers of the depot decided to establish an independent trade union, which later affiliated to the OVPZU. Having received the list of trade union members, the depot administration summoned trade union members for individual discussions, following which, several workers left the union. The administration then requested the prosecutor’s office to investigate whether the trade union’s legalization was carried out in accordance with the law and whether the union could carry out its activities. The investigation was referred to the transport militia.
19. 1291. The complainants also alleged an anti-union campaign at the locomotive depot “Imeni Shevchenko”, which took place between December 2003 and February 2004. Members of the union were asked to leave the union. In January 2004, the employer asked the court to revoke the trade union registration.
20. 1292. In February 2004, Mr. Volynets requested an inquiry on the allegations of anti-union discrimination and violation of workers’ right to establish and join organizations of their own choosing at the National Railways. The authorities did not reply to the complaints brought by Mr. Volynets.
21. Trade unions in the education sector
22. 1293. In March 2004, after two primary trade unions of the Free Trade Union of Education and Science (FTUES) were established in the Mena district of the Chernigov region, the district state administration launched an anti-union campaign under the pretext that free trade unions were political organizations, prohibited from carrying out activities in educational institutions. The head of the district Board of Education obliged school principals to demand the members of the CFTUU-affiliated trade union organizations to provide written statements on the reasons to belong to trade unions. Pressure was also put on teachers who were members of the FTUES in the Gorodnia district of the Chernigov region and in Kirovograd where, as of 29 September 2004, ten out of 84 trade unions had been liquidated.
23. 1294. The complainants alleged that the management of the state agrarian technical secondary school of Alexandria city did not recognize the CFTUU-affiliated trade union set up by the employees of the school. Moreover, according to the complainants, the management of the college humiliated the members of the union in every possible way. The deputy chairperson was laid off. On 11 October 2004, the members of the trade union applied to the state inspectorate of the Ministry of Education in connection with the violations of the legislation of Ukraine. No response was provided to the union.
24. Other affiliated trade unions
25. 1295. In December 2002, following the establishment of a primary CFTUU trade union at “Promproduct” company, the enterprise administration gave all trade union members an ultimatum: to leave the union or lose their jobs. Three trade union members were dismissed two days after the incident. A petition to the prosecutor’s office concerning illegal termination of employment contracts was filed on 31 January 2003. According to the documents sent by the complainants, the prosecutor’s office did not find any violation of the labour legislation. The case is presently under the court’s examination.
26. 1296. The complainants alleged that SBU officials visited the chairperson of the Independent Students’ Trade Union (NPS) in Donetsk. The NPS chairperson was inquired about his trade union membership, its activities and contacts with the international NGOs.
27. 1297. According to the complainants, the administration of the “Orzhitsky” sugar refinery plant had been attempting to destroy the enterprise primary trade union. Since June 2001, the union was deprived of its office space and the check-off system was suspended. Under the employer’s pressure, 115 workers left the union. Since March 2003, the union chairperson has been denied access to the enterprise and is allowed to enter the plant only when the plant manager is present. The trade union chairperson was not allowed to enter the enterprise to accompany the labour inspector even when one trade union member died in an occupational accident in June 2004.
28. 1298. In 2004, an independent trade union was established at the “Azovstal” enterprise in Mariupol. After the employer was notified of the establishment of this trade union, he lodged a court complaint against the union for the alleged illegitimate use of the company’s name in the union’s name. The court prohibited the use of the company name and obliged the union to change its statutes. Since the union continued to use the company’s name, the Commercial Court of the Donetsk region revoked the union’s registration on 1 July 2004 and therefore precluded its activities at the enterprise. Moreover, Mr. Fomenko, who had been providing legal assistance to the trade union, suffered an assault and had to be put on life support for eight days in January 2004. On the same day, another attorney who assisted the union found his car broken into.
29. 1299. In 2003, the general prosecutor’s office applied to the Commercial Court of Kiev to declare the by-laws of the All-Ukrainian Trade Union of Football Players of Ukraine null and void and to revoke its registration. On 10 June 2003, the Court rejected the application, but the ruling was appealed by the Association of Football Clubs – an employers’ organization. On 25 November 2003, the Court of Appeal declared the trade union by-laws null and void and ruled that the trade union registration should be revoked. Both the Ministry of Justice and the trade union lodged appeals before the Supreme Court of Ukraine, but the case was declared not receivable.
30. 1300. During 2003, the management of the “Alchevsky” metallurgical enterprise refused to recognize the Independent Trade Union of Metallurgists of Ukraine. The employer put pressure on its members by making them choose between the trade union and their job. The union’s chairperson, Mr. Kalyuzhny, was severely beaten and forced to resign from his trade union post. Only a few workers remained members of the union.
31. 1301. An anti-union campaign against the trade union of McDonald’s was organized by the management of McDonald’s Ukraine Ltd. in July 2004. The administration had tried to dissuade workers from becoming trade union members by intimidating them. The deputy chairperson of the organization was not certified (his qualification was not confirmed), although during his almost four years of employment he had been regularly promoted.
32. 1302. The administration of the Maritime Commercial Port of Ilyichevsk refused to bargain collectively with the Independent Trade Union of Workers of the Maritime Commercial Port of Ilyichevsk and did not recognize the labour inspection created by the trade union according to sections 21 and 38 of the Law on trade unions.
33. 1303. The complainants further alleged that on 1 March 2003, Mr. Volynets’ car was broken into and his case with documents was stolen (although it was later returned). On 7 March, people in masks and dressed in uniforms (special forces, according to the complainants) kidnapped Mr. Volynets’ son. He was beaten up, and later hospitalized with concussion of the brain, haemorrhage and psychological shock. According to the complainants, the authorities and the police did everything to block the investigation and to prevent media coverage of the incident. The son of the CFTUU’s chairperson had suffered an armed attack in 2002, but neither the police nor the prosecutor’s office had opened an investigation.
34. 1304. The complainants submit that on 18 May 2004, Interim Report No. 5535 of the Temporary Commission of Inquiry of Verkhovna Rada of Ukraine on issues related to establishing of evidence of foreign interference into financing of the election campaign in Ukraine through non-governmental organizations operating on grants of foreign States was disclosed to Parliament. This report treats free trade unions as political organizations and states that the CFTUU and the NPGU are controlled by the director of the Ukrainian Programme of the Solidarity Centre AFL-CIO USA, thus portraying the unions as political organizations carrying out orders of foreign agents.
35. The Federation of Trade Unions of Ukraine (FPU)
36. 1305. The complainants submit the following allegations concerning violations of trade union rights of the FPU-affiliated organizations. Since December 2002, the director of the “Tomashpilsakhar” enterprise forbade the company’s finance department to transfer trade union dues via a check-off system. The trade union was also deprived of its office space. The chairperson of the union was suspended from his work. The district prosecutor’s office did not react to the petition filed by the trade union. A petition to the regional prosecutor’s office was filed in December 2003.
37. 1306. Also since December 2002, the director of the “Svesky Nasosny Zavod” enterprise had been attacking the primary trade union organization of the Mashmetal Trade Union. The union chairperson was denied access to the enterprise. The FPU asked the general prosecutor’s office in December 2002 to launch a criminal investigation. In its communication of 18 February 2003, the prosecutor of the Yampolski district informed the union of its decision of 30 January 2003 not to launch a criminal investigation due to the absence of corpus delicti in the actions of the employer. In January 2003, the enterprise concluded a collective agreement with the union that was created by the employer.
38. 1307. During 2002-03, the employers of the “Brodecke” enterprise and the “Bordecky” sugar refinery plant had not been transferring workers’ membership dues to the FPU-affiliated trade unions. Trade union dues already deducted from workers’ wages were used at the employers’ discretion.
39. 1308. In May 2003, following an order by the director of “Microprylad” Ltd., the telephone lines used by the Trade Union of Machinery and Apparatus Building Workers (PRMPU) were disconnected. Moreover, the transfer of trade union dues was also suspended. The PRMPU and the FPU reported the actions of the management to the prosecutor’s office, who found no grounds for launching a criminal investigation.
40. 1309. In September 2003, at the “Gruzavtoservice” enterprise, the head of the FPU-affiliated trade union organization and two members of the union’s committee were dismissed less than a month after their election. In November 2003, the management of the company organized a trade union meeting to elect new trade union officers. Moreover, the company systematically withheld trade union dues and used them at the employer’s discretion. In November 2003, the Nikolaevsky region trade union council requested the prosecutor’s office to launch a criminal investigation, but this request was denied.
41. 1310. Since the beginning of 2004, the officials of the Ministry of Labour and Social Affairs have interfered in the activities of the FPU-affiliated All-Ukrainian Trade Union of State Agencies’ Employees. Pressure was exercised on members of the union to change their union membership and to join the Trade Union of the Social Sphere, an organization established by the Ministry. Several appeals were made by the union to the Government to take measures against the interference by officials in internal trade union affairs.
42. 1311. In its communications of 28 February, 28 March and 7 April 2005, the CFTUU further alleged violation of trade union rights at the “Ordzhonikidze” and “Novodonetskaya” mines, “Meridian” international school, “Ilyich” metallurgical enterprise, “Krasnoarmeyskiy dinasovoy zavod” enterprise and “Krasnolimanskaya” coal company.
43. B. The Government’s reply
44. 1312. In its communication of 16 November 2004, the Government stated that the issues touched upon in the complaint receive the fullest attention of the Ministry of Labour and the Government and are regularly discussed at meetings of the National Assembly of Social Partners. The Government further assured that the central Government, with the direct participation of trade unions, was continuing its work to bring Ukrainian social and labour legislation in line with ILO Conventions. It indicated that a central concern for the social partners remained the practical implementation of a system for regulating social and labour relations through collective agreements at all levels of management.
45. 1313. According to the Government, there were currently 104 national trade unions and trade union associations. Agreement could not always be reached among such a wide range of trade unions – either within the trade union movement itself or between the social partners. However, the constant consultations and negotiations generally resulted in a significant convergence of positions. Progress was being made in the practice of concluding general, regional, sectoral and collective agreements. Seventy national trade unions and trade union associations were parties to the General Agreement for 2004-05. In the Government’s view such a broad representation testified to the processes of democratization taking place in society and to the rapid development of the trade union movement and enterprise in Ukraine. Eighty sectoral agreements and 27 regional agreements were currently in force. Particular attention was being paid to social and labour relations at the enterprise level: around 80,000 collective agreements covering 9.5 million workers had been concluded.
46. 1314. As concerns the problems raised in the complaint, the Government indicated that the Ministry of Labour and Social Policy approached the workers’ and employers’ co-chairpersons of the National Assembly of Social Partners with a proposal for a joint discussion to formulate practical steps to be taken to ensure that freedom of association and the exercise of trade unions’ rights was guaranteed in practice. In the Government’s view, the problems could only be solved through the consolidated efforts of the Government, trade unions and employers. It considered that the alleged individual violations of the law and the ILO Conventions were the result of unlawful actions by a number of employers, who created obstacles for the activities of the newly formed trade unions.
47. 1315. The Government explained that deliberate obstruction of the lawful activities of a trade union is a criminal offence and refusal by officials to participate in collective bargaining for the conclusion of collective agreements or accords is an administrative offence incurring a fine. Such cases are examined by the courts if a representation is received from one of the parties. Only courts can examine these cases. The executive Government may not interfere in such situations, nor may it interfere in relations between the parties to a collective agreement or accord. Nevertheless, the Government indicated that the Vice-Prime Minister issued an order instructing central and local executive governments to take immediate measures to investigate and to end the violations referred to in the complaint. The Minister of Labour and Social Policy indicated that he has written to the leaders of the national associations of employers’ organizations, drawing their attention to the cases of violation of trade union rights and the need to take steps to prevent them.
48. 1316. In its communication of 15 December 2004, the Government provided details on certain specific allegations of violation of trade union rights raised in the complaints. It indicated that Mr. Volynets, in his capacity as a member of parliament, lodged in fact several appeals with the security service regarding alleged instances of unlawful interference in the activities of the NPGU. The allegations were examined but no violation was found. Mr. Volynets was informed of the situation. The Government pointed out that the security service officials worked on the basis of the Law on Security Service of Ukraine and that central or local executive government bodies had no right to interfere with the SBU’s work.
49. 1317. With regard to violations by the law enforcement agencies of procedural standards and constitutional rights of member organizations of the NPGU at the “Geroev Kosmosa”, “Stashkov”, “Stepnaya”, “Blagodatnaya”, “Pavlogradskaya”, “Ternovskaya”, “Zapadno-Donbasskaya”, “Dneprovskaya”, “Samarskaya” and “Yubileynaya” mines, the Government indicated that, according to the information received from the Dnepropetrovsk provincial state administration, the office of the Prosecutor-General of Ukraine, in accordance with Article 121 of the Constitution of Ukraine, was responsible for supervising compliance with the law during searches carried out by state agencies. Interference by government bodies, local authorities and state officials in the work of prosecutors was prohibited by section 7 of the Law on Prosecutors.
50. 1318. Concerning the accusation formulated by the complainants against the employer of the “Krasnolimanskaya” mine, the Government indicated that in December 2003, Mr. Kozhukh, the chairperson of the trade union committee of the NPGU organization at the “Krasnolimanskaya” mine, informed the management of the enterprise that the trade union organization in question had been legally registered by the judicial authorities on 11 November 2003. The mine management demanded further information on members of the union. According to the Government, such a demand violated the Law on Trade Unions. The Ministry of Labour brought to the attention of the mine’s management that, in accordance with the legislation in force, an employer shall not set conditions for trade unions’ activities at the enterprise.
51. 1319. As regards the alleged interference by the management of the “Krivorozhsky” iron ore plant in the activities of the primary organization of the NPGU at the “V.I. Lenin”, “Gvardeyskaya” and “Oktyabrskaya” mines, the Government indicated that two primary trade unions were active at the plant in question: the Union of Workers of the Metallurgical and Minerals Industries (PTMGP) and the NPGU. As reported by the Ministry of Industrial Policy of Ukraine, an on-site investigation had established that the management of the “Krivorozhsky” plant was not obstructing any lawful activities of the NPGU. This union was authorized to represent and defend the rights and interests of its members and was granted, free of charge, premises, and communication and transport facilities. The management provided these facilities to both unions on exactly the same conditions. All problematic issues that had arisen at the mine were settled at a meeting of representatives of the provincial state administration, the board of the “Krivorozhsky” plant and both trade unions on 2 April 2004. Minutes of the meeting establishing this fact were signed by Mr. Alekseenko, the president of the NPGU. Mr. Volynets was appropriately informed in this respect. The Government indicated that the allegations of unlawful interference by the management in the activities of this trade union have been investigated on more than one occasion by the government corporation “Ukrrudprom” and by the office of the prosecutor. No violation had been found.
52. 1320. With regard to the alleged violation of the rights of the NPGU primary trade union organization at the “Partizanskaya” mine, a part of the state enterprise “Antratsit”, the Lugansk provincial state administration reported that the issue of provision of office space for the primary organization has never arisen.
53. 1321. The Government indicated that, in the opinion of the Ministry of Fuel and Energy, several allegations contained in the complaint required a closer on-site investigation. A special commission had therefore been set up within the Ministry in order to examine the allegations. The Government further indicated that further information on the results and conclusions of the commission’s work, as well as on the measures taken with regard to any violations of trade union rights that may have taken place, will be provided to the Committee.
54. 1322. In relation to the Federation of Free Trade Unions of the Lvov Railway, the Government indicates that the state registration of that Federation was declared invalid by the decision of 22 May 2003 of the Lvov provincial economic court following a demand by the Lvov Provincial Prosecutor. However, this decision was overturned by a ruling of 17 March 2004 of the upper economic court of Ukraine and the case was referred to the Court of First Instance for a second examination.
55. 1323. With respect to the allegations of violations of trade union rights of the trade union organization at the Melitopol locomotive depot, the Government indicated that the primary organization of the Free Trade Union of Workers at the Melitopol locomotive depot was established on 21 March 2004 and legally registered on 6 September 2004 by the Melitopol Municipal Justice Department. By orders of the depot management dated 23 and 29 June 2004, the trade union was provided with premises and Mr. Kuzmenko, the chairperson of the union committee, was granted one free day each month for performing his union duties. The Government further submitted that the employer’s representation to the office of the transport prosecutor was due to the information it had received from Mr. Skiba, Mr. Dyachenko and Mr. Mishakov, who were members of the Trade Union of Railway and Transport Construction Workers and allegedly had not expressed any desire to leave that union in order to join the newly created free trade union of workers at the depot, but nevertheless found themselves to be members of the new union. Mr. Rudenko, the director of the Melitopol locomotive depot, and Mr. Kulik, the chairperson of the trade union committee, therefore requested the office of the Zaporozhie transport prosecutor to investigate these cases.
56. 1324. As concerns the alleged violations of trade union rights at the “Imeni Shevchenko” locomotive depot, the Government indicated that Mr. Dzyubko, the chairperson of the free trade union organization, was dismissed on 16 January 2004 for absenteeism, on the basis of section 40.4 of the Labour Code. He contested his dismissal in court, but the Smelyansk city court found, in its decision of 5 March 2004, that the dismissal was legal. The Cherkass provincial court confirmed the ruling of the lower court. The Government further indicated that because the union registration was carried out in violation of section 11 of the Law on trade unions (concerning determination of trade union status), the management of the locomotive depot appealed to the Smelyansk city court and the Cherkass economic court to have the registration of the free trade union organization at the depot revoked.
57. 1325. As regards the appeal by Mr. Volynets concerning discrimination against the trade union organizations in the railway sector, the Government indicated that his appeal did not state clearly who was obstructing the organization’s activities and which workers were affected, nor was there a specific list of those individuals who had left the trade union at the locomotive depot.
58. 1326. The Government submitted that the Chernigov provincial association of the Trade Union of Education and Science Workers of Ukraine affiliated 971 primary union organizations and represented 44,111 workers. Instances of individual members leaving the union and joining the CFTUU had taken place in the Gorodnyansky district, followed by further instances in the Mena district. Thus, organizations affiliated to the FTUES had been set up at the Oktyabrskaya school and the Mena high school. The Government considered that the head of the Education Department of the Mena district state administration had acted in line with section 42 of the Law on trade unions when he required a written request to be submitted by workers for union membership fees to be deducted from their wages and transferred to the account of a trade union committee. As no such application had been received and the collective agreement did not include any provision to this effect, the union members paid their fees directly to the appropriate trade union body. A similar situation had arisen in educational institutions in the Gorodnia district. In accordance with section 20 of the constitution of the FTUES, issues regarding exclusion from the trade union are settled at the meetings, in the presence of the trade union members in question.
59. 1327. The allegations that member organizations of the FTUES in the cities of Kirovograd and Alexandria were dissolved have been investigated by the Kirovograd provincial state administration and have found no confirmation. Furthermore, the Ministry of Education and Science has issued a directive to all bodies within its departments regarding unconditional compliance with the standards of the Law on trade unions and non-interference in trade union affairs.
60. 1328. The Kharkov provincial state labour inspectorate has carried out an investigation into observance of labour legislation at the “Promproduct” enterprise. This investigation established that, on 5 February 2003, the management of the “Promproduct” enterprise received notice from Mr. Udyansky, the president of the Ukrainian Regional Association of Free Trade Unions, that a trade union organization had been set up at the “Promproduct” enterprise and Mr. Komissarov was elected as its leader. However, the management had no information on union membership. The Government further confirmed the dismissals of three workers – Mr. Komissarov, Mr. Karpov and Mr. Dubovoy. It stated, however, that during the investigation, it was established that they had been dismissed on the basis of section 40.3 of the Labour Code – that is, for systematic failure, without valid reason, to carry out the duties assigned to them by a collective labour agreement or internal work regulations – in this particular case, for damaging production machinery. Disciplinary measures had previously been taken against these workers in accordance with sections 147-149 of the Labour Code. Therefore, no violation of labour legislation was established in connection with the dismissal of Mr. Komissarov, Mr. Karpov and Mr. Dubovoy. The office of the prosecutor of the Moskovsky district of Kharkov investigated the allegations of wrongful dismissal of these workers in March 2003, but did not find any violation of the legislation in force. The aforementioned workers lodged an appeal in court, claiming unlawful dismissal from work and demanding to be reinstated. On 12 March 2004, the court of the Moskovsky district refused to reinstate Mr. Dubovoy. The case involving Mr. Karpov was not examined due to his non-appearance in court. The substance of the case involving Mr. Komissarov has not yet been examined.
61. 1329. The Central Labour and Social Protection Authority of the Poltava provincial state administration conducted an investigation into the allegations of violation of trade union rights at the “Orzhitsky” sugar refinery plant. In accordance with the Law on trade unions, the management of the enterprise can transfer trade union membership fees from workers’ wages to the account of a trade union committee only if the members of that union have made a written request to that effect. Since 2001, the board of the “Orzhitsky” sugar refinery plant has repeatedly proposed that a request from the members of the independent trade union to deduct trade union dues from their wages be presented to the accountant. To date, however, no such requests have been filed. With regard to the claim that Mr. Krazhan, the chairperson of the trade union committee, was denied access to the premises, the Government points out that the “Orzhitsky” sugar refinery plant operated with a pass system: using their passes, workers have access to the factory; visitors can access the enterprise by requesting a one-time pass. As Mr. Krazhan was not an employee of the factory, he visited the factory using a one-time visitor’s pass. In order to carry out his trade union work, Mr. Krazhan was granted passes on 24 occasions between 1 January and 31 August 2004. The Government further indicated that 45 workers lost their jobs in 2004. Thirty-seven of these left voluntarily, four because of staff cuts, one in connection with his transfer to different work and one by the consent of all parties.
62. 1330. With regard to the situation of conflict between the management of the “Azovstal” metalworking enterprise and the independent trade union, the Government confirmed that the management of the enterprise filed a suit with the Donetsk provincial economic court against the independent trade union of the “Azovstal” enteprise, a public association, for unlawful use of the enterprise’s name. In a ruling of 29 December 2003, the economic court banned the Independent Trade Union of the “Azovstal” enterprise from using the name of the plaintiff, “Azovstal”, in its title, and ordered the union to make the necessary amendments to its statutes. As this was not done, the court ordered the compulsory dissolution of the public association. Moreover, the judicial and law enforcement authorities have found no cases of application of psychological pressure or of unlawful actions with regard to the members of the Independent Trade Union of the “Azovstal” enterprise by the management of the company.
63. 1331. As regards the All-Ukrainian Trade Union of Footballers of Ukraine, the Supreme Court of Ukraine has left unchanged the ruling of the Kiev Court of Appeal that revoked the union’s registration and declared its constitution invalid.
64. 1332. In connection with the complaint alleging discrimination against the Independent Trade Union of Metallurgists of Ukraine (NPMU) at the “Alchevsky” metallurgical enterprise, the Government indicated that this independent union was established at the enterprise in 1997. However, in 2003, 59 workers left the union of their own will. Despite the fact that there are only seven workers who are members of this union (out of a total of 21,000 workers), the union participated in the preparation of a draft collective agreement for the year 2004. Mr. Kalyuzhny, chairperson of the trade union committee of the independent union, was one of the signatories of that draft agreement. Moreover, the Lugansk provincial state administration reported no instances of pressure put on members of the independent union.
65. 1333. In the course of its investigation into the allegations involving the trade union of McDonald’s Ukraine Ltd., the state labour inspectorate of the City of Kiev did not establish the existence of any documents to confirm that a trade union organization had been set up and legally registered at the establishment in question.
66. 1334. With regard to the abduction of Mr. A. Volynets, the son of Mr. Volynets, the Ministry of Internal Affairs reported that, on 10 March 2004, the office of the prosecutor of the Darnitsky district of Kiev instituted criminal proceedings in connection with this crime. These proceedings are currently under way.
67. 1335. The Government submitted that the allegations with regard to trade union organizations at the “Bordecke” and “Bordecky” sugar refinery plant in the Vinnitsia province required more thorough examination by the office of the provincial public prosecutor. The Ministry of Labour and Social Protection will therefore send the results of that examination to the ILO at a later date.
68. 1336. The Government indicated that the office of the Lvov provincial public prosecutor reported that all outstanding trade union dues owed by the “Mikropribor” (“Mikroprilad” in the complainants’ communications) enterprise have been paid, and that there was no need for an inspection to be carried out at that enterprise.
69. 1337. The territorial inspectorate of the Nikolaev province conducted an inspection to verify the application of labour legislation at the “Gruzavtoservice” enterprise. The inspection showed that the chairperson of the trade union organization, Ms. Gerasyuto, was wrongfully dismissed. She was later reinstated in accordance with a court decision of 19 March 2004. However, with the consent of all parties, she was dismissed from her position by Decree No. 98-k of 22 March 2004. On 17 November 2003, a new trade union committee was elected at the enterprise. The Government indicated that the office of the Nikolaev provincial public prosecutor rightfully refused to begin criminal proceedings for impeding the lawful activities of a trade union against the management of the enterprise. Furthermore, as concerns trade union dues, the Government stated that no written requests had been received from workers at the enterprise to have trade union dues deducted from their salaries; the employer therefore had no grounds, under section 42 of the Law on Trade Unions, to deduct monthly trade union dues from their pay and transfer them to the account of the trade union organization.
70. 1338. Concerning the establishment of the All-Ukrainian Trade Union of Workers of the Social Sector, the Government indicated that, as reported by Ms. Yasnitskaya, the president of this union, the decision to leave the Trade Union of Workers of State Agencies and set up an independent trade union of workers of the social sector was taken by a number of primary trade union organizations as early as the beginning of 2002. In no way did the Ministry interfere or pressure the workers during the process of setting up the union, and no complaints from union members of violations of their right to freedom of association were received. At the Constituent Assembly of the All-Ukrainian Trade Union of Workers of the Social Sector, held on 14 May 2004, the constitution of the union was adopted and elections were held for its governing bodies. Member organizations of the union have been set up in 19 of Ukraine’s 27 regions. The All-Ukrainian Trade Union of Workers in the Social Sector is legally registered with the Ministry of Justice.

C. The Committee’s conclusions

1. 1339. The Committee notes that the complainants in this case allege that the Ukrainian authorities and employers of various enterprises interfere in trade union internal affairs. They further allege numerous instances of intimidation, harassment and physical assaults on trade union activists and members, anti-union dismissals, denial of facilities for workers’ representatives, attempts to dissolve trade unions and violation of the right to collective bargaining.
2. Interference by the authorities in trade
3. union internal affairs
4. 1340. As concerns the allegations of interference by the authorities in the internal affairs of trade unions, the Committee notes that the complainants submit that, on several occasions, from May to July 2001 and February to March 2004, the officials of the Security Service of Ukraine (SBU) frequently visited offices of several trade union organizations of the Independent Trade Union of Miners (NPGU) to inquire about the NPGU’s activities and political opinions of its members. In some instances, especially in 2001, attempts were made to influence trade union leaders to change the leadership of the Confederation of Free Trade Unions of Ukraine (CFTUU). The Committee further notes that, allegedly, the SBU officials paid similar visits to the chairperson of the Independent Students’ Trade Union in Donetsk. The Committee furthermore notes that Mr. Volynets, the CFTUU chairperson, requested the SBU to conduct an investigation into these events. The Committee notes that the Government confirms that Mr. Volynets had in fact requested an investigation into the abovementioned allegations. However, following an investigation conducted by the SBU, no violation of trade union rights was found. The Committee further notes the Government’s indication that it cannot interfere with the work of the SBU.
5. 1341. The Committee notes that the Government has not denied that the SBU officials had, in fact, on several occasions, paid visits to several trade union officials. These actions of the SBU which, according to the Government, were outside its control, were considered by the SBU itself to be lawful. The Committee considers that the visits of the SBU’s agents, which were conducted without any justification given, had the effect of pressuring trade unionists. The Committee recalls that the rights of workers’ organizations can only be exercised in a climate that is free from pressure of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 47]. Moreover, the Committee considers that, the bodies responsible for the investigation of allegations of violation of trade union rights, should enjoy independence from the authorities against which the allegations were submitted. The Committee requests the Government to take the necessary measures so as to ensure that any further allegations of trade union intimidation or harassment by the SBU are investigated by an independent body having the confidence of the parties concerned and that the SBU will refrain in future from any anti-union discrimination activities.
6. 1342. The Committee further notes a copy of Interim Report No. 5535 of the Temporary Commission of Inquiry of Verkhovna Rada of Ukraine on issues related to establishing of evidence of foreign interference into financing of the election campaign in Ukraine through non-governmental organizations operating on grants from foreign States, transmitted to the Committee by the complainants and which treats free trade unions as political organizations carrying out the order of foreign agents. The Government did not provide any comment in this respect. The Committee requests the Government to indicate whether any measure had been taken in respect of trade union organizations as a result of this report.
7. 1343. The Committee further notes the complainants’ allegation of the interference by the officials of the Ministry of Labour and Social Affairs in the activities of the All-Ukrainian Trade Union of State Agencies’ Employees affiliated to the Federation of Trade Unions of Ukraine (FPU). According to the complainants, pressure was exercised on members of the union to change their union membership and to join the Trade Union of the Social Sphere, an organization established by the Ministry. The complainants indicated that several appeals were made by the union to the Government to take measures against the interference in trade union activities and attached a copy of one of such letters addressed to the President of Ukraine. The Committee notes that the Government indicates that the decision to leave the Trade Union of Workers of State Agencies and set up an independent trade union of workers of the social sector was taken by a number of primary trade union organizations as early as the beginning of 2002. In no way did the Ministry interfere or pressure workers during the process of setting up the union. Moreover, the Government indicates that no complaints from trade union members of violations of their right to freedom of association were received. To date, member organizations of this union have been set up in 19 of 27 regions of Ukraine. In view of this contradictory information concerning the allegations of interference in the internal affairs of the All-Ukrainian Trade Union of State Agencies’ Employees, the Committee requests the Government to institute an independent investigation into the above allegations and to keep it informed in this respect.
8. 1344. The Committee notes the complainants’ allegation that on 12 November 2002, documents of several NPGU primary trade union organizations in Western Donbass were seized. According to the complainants, trade union premises were entered without a search warrant, outside of working hours and, in some cases, forcing the doors. Although the actions of the police and of the city prosecutor were later found to be illegal, the union was not compensated for the material damage and several documents were not returned as they were said to have been lost by the authorities. The Committee notes that the Government submits that the office of the Prosecutor-General is responsible for the supervision of searches carried out by state agencies and that the Government cannot interfere in its work. The Committee recalls that the entry and search by police of trade union premises without a judicial warrant constitutes a serious and unjustifiable interference in trade union activities [see Digest, op. cit., paras. 176 and 177]. Given that the Government has not contradicted the complainants’ statement that the actions of the police were found to be unlawful, the Committee requests the Government to ensure that those trade unions of the Western Donbass Association of the NPGU which suffered material losses due to the illegal search are compensated without delay.
9. Interference by the employers in
10. trade union internal affairs
11. 1345. The Committee further notes that the complainants allege numerous instances of anti-union campaigns instigated by the employers of various enterprises. In some cases, they were sanctioned by the authorities. According to the complainants, such campaigns against the NPGU, which included intimidation, threats of dismissal and attempts to discredit trade union leaders, took place from June to July 2001 at the “Postnikovskio”, “Pervomai”, “Vinintzkouo”, “Shahtersko-glubokoe”, “Duvannaya” and “Zolotoye” mines, as well as at the state-owned “Test Donetskuglestroy” Ltd. The Committee notes the Government’s indication that several allegations contained in the complaint required a closer on-site investigation and that a special commission had been set up by the Ministry of Fuel and Energy in order to examine the allegations. The Government assures that it will inform the Committee about the results and conclusions of the commission’s work, as well as about the measures taken with regard to any violation of trade union rights that may have taken place. The Committee trusts that the commission to investigate the alleged violations of trade union rights will be independent and requests the Government to keep it informed on the results of the work of the commission.
12. 1346. The Committee further notes the complainants’ allegation on systematic persecution of the NPGU members by the management of the “Krivorozhsky” iron ore plant at the “Gvardeyevskaya”, “Oktyabrskaya” and “Imeni Lenina” mines. In particular, the complainants allege that at the “Gvardeyskaya” mine, the human resource manager promotes, among newly recruited workers, another trade union active at the enterprise and threatens the NPGU members with transfers and obstacles to promotion. One worker was also offered a pay rise, conditional upon withdrawal from his NPGU membership. At the “Oktyabrskaya” mine, on 6 February 2004, the director of the plant allegedly conducted a meeting with the heads of production shops and ordered them to take measures to destroy the NPGU by taking such measures as dismissals of trade union members. According to the complainants, one month after the meeting, nearly 300 workers had left the union. On 11 February 2004, trade union members submitted a complaint to the office of the city prosecutor, who concluded that there was no violation of trade union rights. In March 2004, the administration of the same company allegedly began a campaign against the NPGU at the “Imeni Lenina” mine, and heads of production shops were instructed to destroy the union by a specific date. Since then, the NPGU members have been intimidated and ordered to join another trade union active at the enterprise. The Committee notes the following information provided by the Government: (1) two primary trade unions are active at the plant in question – the Union of Workers of the Metallurgical and Minerals Industries (PTMGP) and the NPGU; (2) an on-site investigation had established that the management of the “Krivorozhsky” plant was not obstructing lawful activities of the NPGU at the “V. I. Lenin”, “Gvardeyskaya” and “Oktyabrskaya” mines. This union was authorized to represent and defend the rights and interests of its members and was granted, free of charge, premises, and communication and transport facilities. The management provided these facilities to both unions on exactly the same conditions; and (3) all problematic issues that had arisen at the mine were settled at a meeting of representatives of the provincial state administration, the board of the “Krivorozhsky” plant and both trade unions on 2 April 2004. Minutes of the meeting establishing this fact were signed by Mr. Alekseenko, the president of the NPGU. Mr. Volynets was appropriately informed in this respect. The Committee requests the Government to provide a copy of these minutes.
13. 1347. The Committee notes the complainants’ allegations concerning trade unions in the railway sector. In particular, the complainants allege an anti-union campaign at the Melitopol locomotive depot, which started in October 2003 when a representative of the Association of Free Trade Unions of the Railway Workers (OVPZU) was not allowed to attend a workers’ meeting to explain the role of trade unions. Some workers were subjected to intimidation by the enterprise administration and were forced to leave the union. Moreover, the complainants indicate that the depot administration requested the prosecutor’s office to investigate whether the trade union’s legalization was carried out in accordance with the law and whether the union could carry out its activities. The investigation was referred to the transport militia. The complainants also alleged that there was an anti-trade union campaign at the locomotive depot “Imeni Shevchenko” between December 2003 and February 2004. The Committee notes that with respect to the allegations of violations of trade union rights of the trade union organization at the Melitopol locomotive depot, the Government indicates that the primary organization of the Free Trade Union of Workers at the Melitopol locomotive depot was established on 21 March 2004 and legally registered on 6 September 2004. By the orders of the depot management dated 23 and 29 June 2004, the trade union was provided with premises and Mr. Kuzmenko, the chairperson of the union committee, granted one free day each month for performing his union duties. The Government further submits that the employer’s representation to the office of the transport prosecutor was due to the information he had received from certain workers who complained that their trade union membership was changed against their will. The director of the Melitopol locomotive depot and the chairperson of the trade union committee requested therefore the office of the Zaporozhie transport prosecutor to investigate these cases. The Committee takes note of this information. As the Government has not provided any information in respect of the anti-union campaign at the “Imeni Shevchenko” locomotive depot, the Committee requests the Government to conduct an independent inquiry into these allegations and keep it informed in this respect.
14. 1348. The Committee also notes the allegations of an anti-union campaign in the education sector. The complainants state that in March 2004, after two primary trade unions of the Free Trade Union of Education and Science (FTUES) were established in the Mena district of the Chernigov region, the district state administration along with the school principals, launched an anti-union campaign under the pretext that free trade unions were political organizations prohibited from carrying out activities in educational institutions. The head of the district Board of Education obliged school principals to demand the members of the CFTUU-affiliated trade union organizations to provide written statements on their reasons for belonging to trade unions. The complainants attached copies of several letters that had been sent to the relevant authorities informing them of the situation and requesting them to take the necessary measures against the interference in internal affairs of the union.
15. 1349. According to the complainants, pressure had also been put on teachers who were members of the FTUES in the Gorodnia district of the Chernigov region and in Kirovograd. Moreover, the complainants alleged that the management of the State Agrarian technical secondary school of Alexandria city did not recognize the CFTUU-affiliated trade union set up by the employees of the school. According to the complainants, the management of the college humiliates the members of the union in every possible way. While the members of the trade union applied to the state inspectorate of the Ministry of Education in connection with the violations of the legislation of Ukraine, no response was provided to the union.
16. 1350. The Committee notes the Government’s indication that the Chernigov provincial association of the Trade Union of Education and Science Workers of Ukraine affiliates 971 primary union organizations and represents 44,111 workers. Instances of individual members leaving the union and joining the CFTUU have taken place in the Gorodnia district, followed by further instances in the Mena District. Thus, organizations affiliated to the FTUES have been set up at the Oktyabrskaya school and the Mena high school. The Government considers that the head of the Education Department of Mena district state administration acted in line with section 42 of the Law on Trade Unions when he required written requests to be submitted by workers for the deductions of their union membership fees. As no such application had been received and the collective agreement did not include any provision to this effect, the union members paid their fees directly to the appropriate trade union body. A similar situation has arisen in educational institutions in the Gorodnia district. In accordance with section 20 of the constitution of the Trade Union of Education and Science, issues regarding exclusion the trade union are settled at the meetings, in the presence of the trade union member in question. The Government further states that, as concerns the allegations made in respect of the member organizations of the FTUES in the cities of Kirovograd and Alexandria, the Ministry of Education and Science had issued a directive to all bodies within its departments regarding unconditional compliance with the standards of the Law on Trade Unions and non-interference in trade union affairs. The Committee notes this information.
17. 1351. The Committee notes that, according to the complainants, at the “Orzhitsky” sugar refinery plant, 115 workers left the union under pressure from the employer. As no information was provided by the Government in respect of this allegation, the Committee requests the Government to conduct an independent investigation into this allegation and to keep it informed of the outcome.
18. 1352. The Committee notes that the complainants alleged that during 2003, the management of the “Alchevsky” metallurgical enterprise refused to recognize the Independent Trade Union Metallurgists of Ukraine (NPMU). The employer put pressure on its members by making them choose between the trade union and their job. Only a few workers remained members of the union. According to the Government, the NPMU was established at the enterprise in 1997. However, in 2003, 59 workers left the union of their own free will. Despite the fact that there are only seven workers who are members of this union (out of a total of 21,000 workers), the union participated in the preparation of a draft collective agreement for the year 2004. Mr. Kalyuzhny, chairperson of the trade union committee of the independent union, was one of the signatories of that draft agreement. Moreover, the Lugansk provincials state administration reported no instances of pressure put on members of the independent union. The Committee takes note of this information.
19. 1353. The Committee further notes that, according to the complainants, an anti-union campaign against the trade union of McDonald’s was organized by the management of McDonald’s Ukraine Ltd. in July 2004. The administration had tried to dissuade workers from becoming trade union members by intimidating them. The deputy chairperson of the organization was not certified (his qualification was not confirmed), although during his almost four years of employment he had been regularly promoted. According to the Government, the state labour inspectorate of the City of Kiev did not establish the existence of any documents to confirm that a trade union organization had been set up and legally registered at the establishment in question. The Committee notes from the Government’s reply that it limited its inquiry to the verification of a registered union in McDonald’s in Kiev, but that apparently no investigation was carried out to examine whether the management carried out anti-union acts and whether these acts may have resulted in the non-establishment of a union. The Committee recalls that the right of workers to establish and join organizations of their own choosing cannot be said to exist unless such freedom is fully established and respected in law and in fact [see Digest, op. cit., para. 271]. The Committee therefore requests the Government to carry out an independent investigation into the allegations of an anti-union campaign carried out by the management of McDonald’s and, if it is found that workers were indeed harassed and intimidated in an attempt to dissuade them from becoming members of a union, to take suitable measures to redress the situation and to ensure that workers may effectively exercise their fundamental right to organize. It requests the Government to keep it informed in this respect.
20. 1354. The Committee notes the complainants’ allegation that at the “Svesky Nasosny Zavod” enterprise, the management had created a union with which it had concluded a collective agreement in January 2003. No information was provided by the Government in this respect. Recalling that creation of puppet unions is contrary to Article 2 of Convention No. 98, which provides that workers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each others’ agents in their establishment, functioning or administrational and further recalling the importance of the independence of the parties in collective bargaining, and that negotiations should not be conducted on behalf of employees or their organizations by bargaining representatives appointed by or under the domination of employers or their organizations [see Digest, op. cit., paras. 760 and 771], the Committee requests the Government to conduct an independent inquiry into the above allegations and to keep it informed in this respect.
21. 1355. Finally, the Committee notes that the complainants allege that in November 2003, at the “Gruzavtoservice” enterprise, the management of the company organized a trade union meeting to elect trade union officers. The Government does not reply to this allegation. The Committee recalls that Article 2 of Convention No. 98 establishes the total independence of workers’ organizations from employers in exercising their activities and that these organizations should enjoy adequate protection against any acts of interference by employers in their establishment, functioning or administration [see Digest, op. cit., para. 759]. The Committee therefore requests the Government to conduct an independent inquiry into the above allegations and to keep it informed in this respect.
22. Dismissals
23. 1356. The Committee notes that the complainants allege the following cases of dismissals:
24. – at the “Knyagynskaya” mine, one member of the trade union, Mr. Yshenko, was unlawfully dismissed. The court hearing concerning his reinstatement has been delayed for ten months already due to the failure of the management to send its representative to the court;
25. – at the State Agrarian technical secondary school of Alexandria City, the deputy chairperson was laid off;
26. – at the “Promproduct” company, three trade union members were dismissed. A petition concerning illegal termination of employment contracts was sent on 31 January 2003 to the prosecutor’s office, but he found no violation of the labour legislation. The case is presently before the courts;
27. – at the “Tomashpilsakhar” enterprise, the chairperson of the union was suspended from his work; and
28. – at the “Gruzavtoservice” enterprise, the head of the FPU-affiliated trade union organization and two members of the union’s committee were dismissed in September 2003, less than a month after their election.
29. 1357. The Committee notes the following information provided by the Government in respect of the cases of dismissals at the “Promproduct” and the “Gruzavtoservice” enterprises. As concerns the first enterprise, the Government confirms the dismissal of three workers – Mr. Komissarov, Mr. Karpov and Mr. Dubovoy. It states, however, that during the investigation, it was established that they had been dismissed on the basis of section 40.3 of the Labour Code – that is, for systematic failure, without valid reason, to carry out the duties assigned to them by a collective labour agreement or internal work regulations (in this particular case, for damaging production machinery). Disciplinary measures had previously been taken against these workers in accordance with sections 147-149 of the Labour Code. Therefore, no violation of labour legislation had been established in connection with these dismissals. Moreover, the office of the prosecutor of the Moskovsky district of Kharkov, investigated the allegations of wrongful dismissal of these workers in March 2003 but did not find any violation of the legislation in force. Following an appeal lodged by the dismissed workers, on 12 March 2004, the court of the Moskovsky district refused to reinstate Mr. Dubovoy. The case involving Mr. Karpov was not examined due to his non-appearance in court, while the substance of the case involving Mr. Komissarov has not been examined. As concerns the dismissal at the “Gruzavtoservice” enterprise, the Government indicated that an inspection revealed that the chairperson of the trade union organization, Ms. Gerasyuto, was wrongfully dismissed. She was later reinstated in accordance with a court decision of 19 March 2004; however, with the consent of all parties, she was relieved from her position by Decree No. 98-k of 22 March 2004.
30. 1358. Furthermore, the Committee notes that the Government refers to the case of dismissal of Mr. Dzyubko, the chairperson of the free trade union organization at the “Imeni Shevchenko” locomotive depot. The Government submits that he was dismissed on 16 January 2004 for absenteeism, on the basis of section 40.4 of the Labour Code. Mr. Dzyubko contested his dismissal in court, but the Smelyansk city court found, in its decision of 5 March 2004, that the dismissal was legal. The Cherkass provincial court confirmed the ruling of the lower court. The Government did not reply to the other allegations of anti-union dismissals.
31. 1359. The Committee recalls that the dismissal or suspension of workers on the grounds of membership of an organization or trade union activities violates the principles of freedom of association [see Digest, op. cit., para. 702]. The Committee requests the Government to conduct independent inquiries into the allegations of anti-union dismissals at the “Knyagynskaya” mine, the State Agrarian technical secondary school of Alexandria City and the “Tomashpilsakhar” enterprise, and keep it informed in this respect. The Committee expects that the case concerning Mr. Komissarov, the chairperson of the union at the “Promproduct” enterprise will be examined without delay and requests the Government to keep it informed in this respect. As concerns the dismissal of Mr. Dzyubko, the Committee requests the Government to indicate whether the relevant procedures for dismissal of a trade union leader provided for in the Labour Code were followed in this particular case.
32. Physical assaults
33. 1360. The Committee notes that the complainants allege several instances of physical assaults on trade unionists. The Committee notes the case of Mr. Shtulman, the chairperson of the NPGU primary trade union, who suffered several injuries after he was forced into a car on 1 July 2001 and threatened at gunpoint to make him cease his trade union activities. According to the complainants, no investigation was ever conducted. The Committee also notes the case of Mr. Fomenko, a legal assistant to the primary trade union of the CFTUU at the “Azovstal” enterprise, who suffered an assault and had to be put on life support for eight days in January 2004. The Committee further notes the allegation that Mr. Kalyuzhny, the chairperson of the Independent Trade Union of metallurgists of Ukraine at the “Alchevsky” metallurgical enterprise, was severely beaten and forced to resign from his trade union post. Finally, the Committee notes the kidnapping of Mr. Volynets’ son, who was beaten up and hospitalized with concussion and a haemorrhage in March 2003.
34. 1361. The Committee observes that the Government provides no information on the allegations concerning Mr. Shtulman, Mr. Fomenko and Mr. Kalyuzhny. As concerns the assault of Mr. A. Volynets, the Committee notes the Government’s statement that a criminal investigation was instituted. The Committee emphasizes that freedom of association can only be exercised in conditions in which personal safety are fully respected and guaranteed. The Committee therefore requests the Government to institute immediately an independent judicial inquiry into the allegations of physical assaults on Mr. Shtulman, Mr. Fomenko and Mr. Kalyuzhny with a view to fully clarifying the facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. The Committee requests the Government to keep it informed of any development regarding the investigations into these cases, as well as the criminal investigation regarding the abduction of, and physical assaults on, Mr. Volynets’ son.
35. Facilities for workers’ representatives
36. 1362. The Committee notes that the complainants allege that employers of the following enterprises refused to provide trade unions and their representatives with facilities:
37. – the “Krasnolimanskaya” mine, where during 2001-02, the management refused access to the trade union chairperson;
38. – the “Partizanskaya” mine, where the management ordered the primary NPGU to free its office space;
39. – the “Krivoy Rog Steal” enterprise, where the management refused to provide the primary NPGU trade union with office space;
40. – the “Orzhitsky” sugar refinery plant where, since June 2001, the union has been deprived of its office space, check-off facilities were suspended and the union chairperson was not allowed to enter the plant without the management of the plant being present;
41. – the “Tomashpilsakhar” enterprise where, since December 2002, check-off facilities were suspended;
42. – the “Svesky Nasosny Zavod” enterprise, where the union chairperson was denied access to the workplace;
43. – the “Brodecke” enterprise and “Bordecky” sugar refinery plant where, during 2002-03, the employer was not transferring the already deducted workers’ membership dues to the FPU-affiliated trade unions;
44. – the “Microprylad” Ltd. Enterprise where, in May 2003 following an order by the director, the telephone lines used by the Trade Union of Machinery and Apparatus Building Workers (PRMPU) were disconnected and the transfer of trade union dues was also suspended; and
45. – the “Gruzavtoservice” enterprise, where trade union dues were systematically withheld and used at the employer’s discretion.
46. 1363. As regards the “Krasnolimanskaya” mine, the Committee notes that the difficulties encountered by the trade union chairperson took place in 2001-02 and that since then the Government brought to the attention of the mine management that, in accordance with the legislation in force, an employer shall not set conditions for trade union activities at an enterprise. As regards the allegations with respect to the “Partizanskaya” mine, the Committee notes that the Government denies that this issue was ever raised. In view of the contradictory information in respect of the “Partizanskaya” mine, the Committee requests the Government to inform it whether the NPGU trade union at this mine was provided with office space. Similarly, in the absence of a reply from the Government concerning the allegations relating to the trade union at the “Krivoy Rog Steal” enterprise and the “Orzhitsky” sugar refinery plant, the Committee requests the Government to indicate whether trade unions at these enterprises were provided with office space.
47. 1364. As concerns the alleged suspension of check-off facilities at the “Orzhitsky” sugar refinery plant and the “Gruzavtoservice” enterprise, the Committee notes the Government’s indication that a check-off system could be established at the enterprise only if workers provided an employer with written requests in this respect. At the “Orzhitsky” sugar refinery plant and at the “Gruzavtoservice” enterprise, no such requests were received. As concerns the denial of access to the workplace to the trade union chairperson of the “Orzhitsky” sugar refinery plant, the Government indicates that the chairperson of the union was granted access to the enterprise on 24 occasions between 1 January and 31 August 2004. The Committee notes that no information was provided by the Government with respect to the allegations of suspension of check-off facilities at the “Tomashpilsakhar” enterprise and of violation of the right of the union chairperson to access the workplace at the “Svesky Nasosny Zavod” enterprise. The Committee therefore requests the Government to provide information in this respect. The Committee further notes the Government’s assurances that the allegations concerning the “Brodecke” enterprise and “Bordecky” sugar refinery plant will be thoroughly examined. The Committee therefore requests the Government to indicate whether trade union dues deducted from workers’ wages during 2002-03 were duly paid to the FPU-affiliated trade unions at these enterprises. The Committee notes the Government’s indication that at the “Microprylad” Ltd. enterprise, all outstanding trade union dues have been transferred. However, the Committee notes that no information was provided by the Government on whether the telephone lines were reconnected at the PRMPU’s office and requests the Government to provide information in this respect.
48. Trade union registration
49. 1365. The Committee further notes the complainants’ allegation concerning several instances of revocation of trade union registration. In particular, the complainants state that in February 2004, the commercial court of Donetsk ruled in favour of the lawsuit brought by the management of the “Krasnolimanskaya” mine to cancel the trade union’s registration. The complainants point out, however, that the commercial court does not have the competence to revoke trade union registration or legalization. No information was provided by the Government in this respect.
50. 1366. The complainants further allege that in January 2004, the management of the locomotive depot “Imeni Shevchenko” asked the court to revoke registration of the primary trade union of the complainants’ organization. The Committee notes the Government’s reply according to which the union registration was carried out in violation of section 11 of the Law on Trade Unions (concerning determination of trade union status). The management of the locomotive depot therefore appealed to the Smelyansk city court and the Cherkass economic court to have the registration of the free trade union organization at the depot revoked.
51. 1367. The Committee further notes that the registration of the trade union at the “Azovstal” enterprise was revoked because the trade union used the company’s name in its own name. As a result, the organization was dissolved.
52. 1368. The Committee notes the revocation of registration of the All-Ukrainian Trade Union of Football Players. However, neither the complainants nor the Government explained the reasons behind the prosecutor’s office application to the court requesting revocation of the union’s registration.
53. 1369. The Committee notes that the complainants allege that in December 2002, the Lvov region prosecutor lodged a complaint to the commercial court against the establishment of the Federation of Free Trade Unions of Lvov Railways and requested that its statutes be declared null and void. After a year of trials, in 2004, the case is still under examination. The Committee notes that the Government indicates that the state registration of that federation was declared invalid by a decision of 22 May 2003 of the Lvov provincial economic court following a demand by the Lvov provincial prosecutor. However, this decision was overturned by a ruling of 17 March 2004 of the Upper Economic Court of Ukraine, and the case was referred to the Court of First Instance for a second examination.
54. 1370. The Committee notes the complainants’ allegation that in Kirovograd, as of 29 September 2004, ten out of 84 FTUES primary trade unions have been liquidated. According to the Government, the allegations that member organizations of the FTUES in the cities of Kirovograd and Alexandria were dissolved have been investigated by the Kirovograd provincial state administration and have found no confirmation. The Committee takes note of this information.
55. 1371. The Committee recalls that the dissolution of trade union organizations is a measure which should only occur in extremely serious cases. Given that no information was provided by the Government in respect of the revocation of the registration of the NPGU primary organization at the “Krasnolimanskaya” mine, the Committee requests the Government to provide information in this respect. As concerns the revocation of the registration of the trade union at the locomotive depot “Imeni Shevchenko” and of the All-Ukrainian Trade Union of Football Players, the Committee requests the Government and the complainants to provide further information concerning the reasons for dissolution so that it may examine this question in full knowledge of the facts. As concerns the trade union at the “Azovstal” enterprise, in view of the serious consequences which cancellation of trade union registration involves for the occupational representation of workers, the Committee considers that the use of the company’s name in the title of the trade union should not result in the cancellation of trade union registration. The Committee therefore requests the Government to take the necessary measures so as to ensure that this trade union is registered. The Committee further requests the Government to keep it informed of the court decision as concerns the registration of the Federation of Free Trade Unions of Lvov Railways and to provide a copy of the judgement.
56. Collective bargaining
57. 1372. The Committee notes the alleged violations of collective agreements by the management of the “Partizanskaya” mine (“Antratsit” coal company) and of the “Stakhanova” mine (“Krasnoarmeyskugol” enterprise), which did not transfer money for the cultural and recreational activities of the NPGU primary trade unions, as provided for in the respective collective agreements. As of 1 January 2005, and as concerns the latter enterprise, the arrears amounted to 234,952 UAH (US$44,000). The Committee notes that a special commission has been set up within the Ministry of Fuel and Energy in order to examine these allegations. Recalling that agreements should be binding on the parties [see Digest, op. cit., para. 818], the Committee requests the Government to keep it informed of the conclusions reached by the commission.
58. 1373. The Committee further notes that the complainants allege that the administration of the Maritime Commercial Port of Ilyichevsk refuses to bargain collectively with the Independent Trade Union of Workers of the Maritime Commercial Port of Ilyichevsk. No information was provided by the Government in this respect. The Committee recalls that it had previously examined the allegations of violation of the right to collective bargaining at the maritime commercial port of Ilyichevsk in Case No. 2018. In its last examination of this case, the Committee noted the Government’s communication of 4 September 2003, by which it had indicated that the administration of the port and the Independent Trade Union of Workers of the Maritime Commercial Port of Ilyichevsk had concluded a new collective agreement [see 332nd Report, para. 170]. In view of the allegations by the complainants to the contrary, the Committee requests the Government to provide its observations in this respect.
59. 1374. The Committee observes that this case concerns numerous complaints of alleged anti-union discrimination and interference in trade union internal affairs at a number of enterprises and that such acts have apparently affected both main trade union centrals, the FPU and the CFTUU. The Committee expresses its concern over the number of complaints concerning the non-application of Conventions Nos. 87 and 98 in practice. Recalling that, where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention [see Digest, op. cit., para. 754], the Committee trusts that the Government will rapidly take the necessary measures to investigate the remaining allegations and to ensure that any effects of anti-union discrimination and interference are appropriately and adequately remedied.
60. 1375. The Committee notes the recent communication of the CFTUU and requests the Government to provide its observations on the allegations of violation of trade union rights at the “Ordzhonikidze” and “Novodonetskaya” mines, “Meridian” international school, “Ilyich” metallurgical enterprise, “Krasnoarmeyskiy dinasovoy zavod” enterprise and “Krasnolimanskaya” coal company.
61. 1376. Finally, the Committee requests the Government to solicit information from the employers’ organizations concerned, with a view to having at its disposal their views, as well as those of the enterprises concerned, on the questions at issue.

The Committee’s recommendations

1. 1377. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
2. (a) The Committee recalls that the rights of workers’ organizations can only be exercised in a climate that is free from pressure of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee further considers that bodies responsible for investigation of allegations of violation of trade union rights should enjoy independence from the authorities against which the allegations were submitted. The Committee therefore requests the Government to take the necessary measures so as to ensure that any further allegations of trade union intimidation or harassment by the SBU are investigated by an independent body having the confidence of the parties concerned and that the SBU will refrain in future from any anti-union discrimination activities.
3. (b) The Committee requests the Government to indicate whether any measures have been taken in respect of trade union organizations as a result of Interim Report No. 5535 of the Temporary Commission of Inquiry of Verkhovna Rada of Ukraine on issues related to establishing of evidence of foreign interference into financing of the election campaign in Ukraine through non-governmental organizations operating on grants of foreign States, which treats free trade unions as political organizations carrying out the order of foreign agents.
4. (c) The Committee requests the Government to institute an independent investigation into the allegations of interference in the internal affairs of the All-Ukrainian Trade Union of State Agencies’ Employees and to keep it informed in this respect.
5. (d) The Committee requests the Government to ensure that those trade unions of the Western Donbass Association of the NPGU which suffered material damage due to the illegal search are compensated without delay.
6. (e) The Committee trusts that the commission mandated to investigate the alleged violations of trade union rights at the “Postnikovskio”, “Pervomai”, “Vinintzkouo”, “Shahtersko-glubokoe”, “Duvannaya” and “Zolotoye” mines, as well as at the “Test Donetskuglestroy” Ltd. Enterprise will be independent. It further requests the Government to keep it informed on the results of the work of the commission.
7. (f) The Committee requests the Government to conduct an independent inquiry into the allegations of the anti-union campaign which allegedly took place at the “Imeni Shevchenko” locomotive depot and to keep it informed in this respect.
8. (g) The Committee requests the Government to provide a copy of the minutes of the meeting of 2 April 2004, during which, according to the Government, all problematic issues that had arisen at the “Krivorozhsky” plant were settled by the representatives of the provincial state administration, the management of the plant and trade unions.
9. (h) The Committee requests the Government to conduct an independent investigation into the allegation that at the “Orzhitsky” sugar refinery plant, 115 workers left the union under pressure by the employer and to keep it informed of the outcome.
10. (i) The Committee requests the Government to carry out an independent investigation into the allegations of an anti-union campaign carried out by the management of McDonald’s and, if it is found that workers were indeed harassed and intimidated in an attempt to dissuade them from becoming members of a union, to take suitable measures to redress the situation and to ensure that workers may effectively exercise their fundamental right to organize. It requests the Government to keep it informed in this respect.
11. (j) The Committee requests the Government to conduct an independent inquiry into the allegation of creation by the management of the “Svesky Nasosny Zavod” enterprise of a puppet union controlled by it and to keep it informed in this respect.
12. (k) The Committee requests the Government to conduct an independent inquiry into the allegation of interference by the management of the “Gruzavtoservice” enterprise in the election of trade union officers and to keep it informed in this respect.
13. (l) The Committee requests the Government to conduct independent inquiries into the allegations of anti-union dismissals at the “Knyagynskaya” mine, the State Agrarian technical secondary school of Alexandria City and the “Tomashpilsakhar” enterprise, and to keep it informed in this respect. The Committee expects that the case concerning Mr. Komissarov, the chairperson of the union at the “Promproduct” enterprise, will be examined without delay and requests the Government to keep it informed in this respect. Furthermore, the Committee requests the Government to indicate whether, in the case of dismissal of Mr. Dzyubko, the relevant procedures for dismissal of a trade union leader provided for in the Labour Code were followed.
14. (m) The Committee requests the Government to institute immediately an independent judicial inquiry into the allegations of physical assaults on Mr. Shtulman, Mr. Fomenko and Mr. Kalyuzhny with a view to fully clarifying facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. The Committee requests the Government to keep it informed of any development regarding these cases, as well as the criminal investigation regarding the abduction and physical assaults on Mr. Volynets’ son.
15. (n) As concerns the allegations of denial of certain facilities to trade unions, the Committee requests the Government to:
16. – inform the Committee whether the primary trade unions of the complainants’ organizations at the “Partizanskaya” mine, the “Krivoy Rog Steal” enterprise and the “Orzhitsky” sugar refinery plant were provided with office space;
17. – reply to the allegation of suspension of check-off facilities at the “Tomashpilsakhar” enterprise;
18. – reply to the allegation of violation of the right of the trade union representative to access the workplace at the “Svesky Nasosny Zavod” enterprise;
19. – to indicate whether trade union dues deducted from workers’ wages during 2002-03 were duly paid to the FPU-affiliated trade unions;
20. – to indicate whether the telephone lines were reconnected in the office of the trade union organization at the “Microprylad” Ltd. Enterprise.
21. (o) With regard to the alleged instances of revocation of trade union registration:
22. – the Committee requests the Government to provide information in respect of the revocation of registration of the NPGU primary organization at the “Krasnolimanskaya” mine;
23. – the Committee requests the Government and the complainants to provide further information concerning the reasons for the dissolution of the trade union at the locomotive depot “Imeni Shevchenko” and the All-Ukrainian Trade Union of Football Players;
24. – the Committee requests the Government to take the necessary measures so as to ensure that the trade union at the “Azovstal” enterprise is re-registered;
25. – the Committee requests the Government to keep it informed of the court decision as concerns the registration of the Federation of Free Trade Unions of Lvov Railways and to provide a copy of the judgement.
26. (p) Recalling that collective agreements should be binding on the parties, the Committee requests the Government to keep it informed of the conclusions reached by the commission set up to examine the allegations of violations of trade union rights by the management of the “Partizanskaya” mine (“Antratsit” coal company) and of the “Stakhanova” mine (“Krasnoarmeyskugol” enterprise).
27. (q) The Committee requests the Government to reply to the complainants’ allegation that the administration of the maritime commercial port of Ilyichevsk refuses to bargain collectively with the Independent Trade Union of Workers of the Maritime Commercial Port of Ilyichevsk.
28. (r) Recalling that, where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention, the Committee trusts that the Government will rapidly take the necessary measures to investigate the remaining allegations and to ensure that any effects of anti-union discrimination and interference are appropriately and adequately remedied.
29. (s) The Committee requests the Government to provide its observations on the allegations of violation of trade union rights at the “Ordzhonikidze” and “Novodonetskaya” mines, “Meridian” international school, “Ilyich” metallurgical enterprise, “Krasnoarmeyskiy dinasovoy zavod” enterprise and “Krasnolimanskaya” coal company.
30. (t) The Committee requests the Government to solicit information from the employers’ organizations concerned, with a view to having at its disposal their views, as well as those of the enterprises concerned, on the questions at issue.