Observación (CEACR) - Adopción: 2000, Publicación: 89ª reunión CIT (2001)

The Committee takes note of the report supplied by the Government.

It also notes the conclusions of the Committee on Freedom of Association concerning Cases Nos. 2038 and 2079 (see 318th Report, paragraphs 517-533 and 323rd Report, paragraphs 525-543).

The Committee notes the adoption on 15 September 1999 of the Act of Ukraine on Trade Unions, their Rights and Safeguards of their Activities. More particularly, the Committee takes note of section 11 of the Act which provides that in order for a trade union to obtain district or all-Ukrainian status, it should unite more than half the workers of the same vocation or occupation or should have its organizational units in the majority of administrative territorial units of the same district or in the majority of administrative territorial units of Ukraine. In this regard, the Committee recalls that problems may arise when legislation stipulates that an organization may be set up only if it has a certain number of members in the same occupation or enterprise, or when it requires a high minimum proportion of workers which, in the latter case, in practice precludes the establishment of more than one trade union in each occupation or enterprise. Thus, requirements regarding territorial competence and number of union members should be left for trade unions to determine in their own by-laws and any legislative provisions that go beyond formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3(2) of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 80-83 and 111). The Committee also notes that section 16 of the Act provides for the compulsory registration of a union which is carried out by a legalizing body that will verify the correspondence of the status of the union in accordance with the requirements of section 11. In this regard, the Committee recalls that Article 7 of the Convention provides that the acquisition of legal personality by workers’ organizations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 thereof. Sections 11 and 16 of the Act were challenged in the Constitutional Court of Ukraine and were the object of the two complaints referred to above which were examined by the Committee on Freedom of Association. Following these developments, the Committee notes with interest that on 24 October 2000, the Ukrainian Constitutional Court declared unconstitutional certain provisions of sections 8, 11 and 16 of the Act on Trade Unions, their Rights and Safeguards of their Activities. The Committee asks the Government to supply a copy of the said decision and expresses the firm hope that the Government will take the necessary measures to bring sections 11 and 16 of the Act on Trade Unions, their Rights and Safeguards of their Activities into full conformity with the provisions of the Convention.

Right of workers’ organizations to formulate their programme of action without interference from the public authorities, including by recourse to industrial action.  The Committee takes note with interest of the adoption in November 1998 of the Presidential Decree and the Regulations on the Establishment of the National Mediation and Conciliation Service which shall take decisions which have the character of recommendations in the settlement of labour disputes. The Committee requests the Government to keep it informed in its next report of the application in practice of this new mechanism for the settlement of labour disputes.

With reference to its previous comments, the Committee had noted that section 19 of the Act on the procedure for the settlement of collective labour disputes provides that a decision to declare a strike must be supported by a majority of the workers or two‑thirds of the delegates of a conference. The Committee recalls in this regard that the majority and quorum required for a strike ballot should not be such that the exercise of the right to strike becomes very difficult or even impossible in practice. Any such legislative requirements should therefore ensure that account is taken only of the votes cast and the required majority and quorum should be fixed at a reasonable level (see General Survey, op. cit., paragraph 170). The Committee asks the Government to indicate in its next report the measures taken or envisaged in order to bring section 19 of the Act into full conformity with the principles of freedom of association.

Finally, the Committee once again requests the Government to indicate in its next report whether the former provisions of the Penal Code which were previously applicable in the USSR, and particularly section 190(3) which contained significant restrictions on the exercise of the right to strike in the public and transport sectors enforceable by severe sanctions, including up to three years’ imprisonment, have been repealed by a specific text.