Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 318, Noviembre 1999

1. 473. On 23 February 1999, the Independent Trade Union of Workers of the Ilyichevsk Maritime Commercial Port (NPRP) presented a complaint of violation of trade union rights against the Government of Ukraine. It subsequently supplied complementary information on the case in a communication dated 17 June 1999.
2. 474. The Government sent its comments and observations concerning this complaint in a communication dated 21 May 1999.
3. 475. Ukraine has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 476. In its communication of 23 February 1999, the Independent Trade Union of Workers of the Ilyichevsk Maritime Commercial Port (NPRP) in Odessa region in Ukraine explains that it was founded in 1990 and that the authorities have since been conducting an anti-union campaign against it and its leaders.
2. 477. In a detailed account of the situation, the complainant explains that on 18 December 1998, in accordance with its own statutes, the NPRP was to hold its conference and elections and that on 17 December, in accordance with the law and the applicable collective agreement, it sent a letter to the director of the port requesting that premises be made available for that purpose. However, the port management turned down the request, as it had done on several previous occasions.
3. 478. According to the complainant, workers reported that management was forcing NPRP members to leave the union under threat of dismissal. Recently hired workers were allegedly forced to accept conditions of employment which prevented them from joining the NPRP. In one year, the union lost 1,000 of its 4,000 members.
4. 479. The complainant adds that an association of younger workers was formed using funds provided by the port management. Members of the NPRP were asked to leave the union; the association signed an agreement with the port director obliging brigades of young workers to work in the port in the event of a strike.
5. 480. The complainant explains that, faced with the illegal measures taken by the port director, the NPRP held a meeting on 25 June 1998 in order to discuss demands to be submitted to the director, in accordance with the Settlement of Collective Disputes Act. Although all the statutory procedures were respected, the NPRP's proposals were rejected and the union was thus forced to declare a strike as a last resort. On 18 August, the NPRP called a meeting of workers to discuss the strike declaration and issued a strike notice for 7 September. However, even before the strike was due to start, the port administration applied to the Odessa Regional Court which ruled that the strike was illegal. The NPRP then appealed against the initial ruling to the Supreme Court. That appeal was dismissed.
6. 481. Subsequently, a meeting of all port workers was called by the port director on 4 September 1998. According to the complainant, 80 per cent of those participating in the meeting were heads of department, managerial staff or administrative employees. During the meeting, attacks were directed against the NPRP. A workers' council was set up without any legal basis. From then on, the council has usurped the place of the independent trade union. The meeting declared a moratorium on strikes, which means, according to the complainant, that the port director took it upon himself to abolish the right to strike.
7. 482. A proposed new collective agreement was then presented to the union by the port administration. The agreement represented a deterioration of the legal, financial and social situation of workers. The NPRP requested in vain that conciliation proceedings be started. It was warned verbally that if it rejected the proposal, the new collective agreement would be adopted at a meeting of the workforce and signed by the workers' council.
8. 483. The port management also initiated proceedings against workers' representatives who had criticized management. The Ilyichevsk Prosecutor brought a claim for 1 million hryvnas (about US$300,000) in damages before the Odessa Arbitration Tribunal at the request of the Ilyichevsk port.
9. 484. Furthermore, the prosecutor, acting at the request of workers who were not members of the NPRP, confiscated the union's documents, initiated criminal proceedings against the union's President, Mr. Boychuk, and his legal adviser, Mr. Tatarnikov, and ordered the closure of the union's bank accounts for eight days. The President of the NPRP was prohibited from leaving the City of Ilyichevsk or from speaking at the conference of the Confederation of Free Trade Unions of Ukraine which was held on 23 December 1998 in Kiev. Finally, according to the complainant, an attempt was made by persons unknown with the help of the police to abduct the union's President.
10. 485. The NPRP also states that a government commission visited the port after the complaint had been lodged with the ILO. The commission spent two days meeting representatives of the management, the unions and public organizations, but only three hours talking to NPRP leaders. During these talks, none of the points raised in the complaint was discussed. The commission took the side of the employer and put pressure on the union to make concessions. Realizing that this approach would not work, the commission left for Kiev, having first indicated that other ways of influencing the union would be found, which the NPRP interpreted as a threat.
11. 486. The complainant also refers to threats of dismissals made on 27 May 1999 against NPRP members and in particular against one union officer, Mr. Loshmanov, for having asked the port management to explain the excessively high price of tomatoes grown within the port area, and threats to destroy the NPRP.
12. 487. The complainant also mentions a meeting of Work Brigade No. 301 on 22 December 1998 at which, according to the union, it was said that the independent union would be dissolved on the ground that it did not meet the requirements of the management. At the end of the meeting, sheets of paper were distributed to workers who were invited to indicate in writing their intention to leave the independent union. Mr. Proskurin, a member of the NPRP who protested against these illegal demands, is said to have been subjected to intense psychological pressure which led to his being hospitalized for nervous depression. These facts were brought to the attention of the commission and were supported by the victim himself but no appropriate response from the commission followed.

B. The Government's reply

1. 488. In its reply of 21 May 1999, the Government states that the complaint of the NPRP was examined by the Ministry of Labour and Social Affairs jointly with the National Council for Social Partnership and the National Mediation and Conciliation Service, assisted by the labour inspectorate, and that a commission had visited the port.
2. 489. Relevant documents from the courts and the prosecutor responsible for the transport sector were studied and interviews were conducted with the port management and the different unions, namely, the Trade Union of Maritime Transport Workers of Ukraine (PRMTU), with 4,922 members in the port, the NPRP (the complainant), with 2,874 members, the Trade Union of Service Workers (93 members), the Trade Union of Professionals, Dockworkers and Mechanics (55 members) and the Engineers' and Technicians' Union (32 members).
3. 490. The Government acknowledges that on 17 December 1998 the port management received letters from two organizations, the PRMTU and the NPRP, concerning their respective conferences on 18 December 1998. Given the very short notice and the fact that these events would entail the absence from the workplace of workers elected as delegates at a critical period in the production process at the end of the year, the management suggested that the unions postpone the meetings until January 1999.
4. 491. The PRMTU agreed to hold its conference on 22 January 1999, but the NPRP refused to postpone its conference. According to the Government, the management's attitude was justified because holding the meetings in January would have allowed a discussion of the undertaking's financial results for the past year; the management's action could therefore not be construed as obstruction of trade union activities. The Government also states that the complainant, the NPRP, has operated in the port since 1990, that its conferences have been postponed for objective reasons on only two occasions, in June and December 1998, and that allegations that this has been a frequent occurrence are untrue. The Government emphasizes that, in accordance with section 250 of the Labour Code, the management of the port made facilities available to the trade unions to allow them to carry out their work. The NPRP was given premises, office furniture and telephones which were to the satisfaction of the President, as he himself told the government commission. Furthermore, according to the Government, the facilities given to the committee of the NPRP are superior to those of its rival, the PRMTU, although the latter represents more workers (31.1 per cent of the port workforce).
5. 492. The officers of the other trade union committees have denied allegations that there were acts of interference by the port management in the activities of the unions or that pressure was brought to bear on NPRP members to leave the union. The NPRP has not provided any evidence from witnesses to support its allegation and, according to the Government, no complaint from workers was brought before the commission.
6. 493. On the contrary, when the government commission examined the case, and in particular the written letters of resignation from the NPRP (the Government acknowledges that 1,000 workers recently resigned from the union), it found nothing which, either directly or indirectly, could have been construed as pressure on the workers concerned to resign. Mr. Boychuk himself is said to have confirmed this. Similarly, documents from the personnel department contain no evidence that hiring is conditional on membership of any particular union.
7. 494. The Government admits that on 28 August 1998, an association of young port workers was set up and registered by the Ilyichevsk City Council. The aim of the association, which has 418 members aged between 16 and 33 years, is to help young workers realize their creative potential and achieve their goals in all areas of life; to defend the rights and interests of young workers; to develop international cooperation, tourism and sport; and to promote respect for universal human values. The Government explains that it is not necessary to leave any other public association or trade union in order to join this young workers' association, as the complainant alleges; most of its members also belong to other trade unions and include 81 members of the NPRP. The agreement between the association and the port management, which was signed on 26 December 1998, contains more specific measures to promote the social development of these young workers. According to the Government, the clauses in the agreement relating to the association's right to set up work brigades do not violate trade union rights, nor are the association's activities those of strike-breakers.
8. 495. The Government confirms that on 4 September 1998, a workforce meeting took place to discuss the results of the port's activities over the previous seven months and measures to stabilize production and economic activity. Of the 183 elected delegates, 107 belonged to the PRMTU, 46 to the NPRP, three to the Service Workers' Union, and 27 belonged to no union at all. The Government maintains that only 19.6 per cent of the delegates were managerial staff, deputy or assistant directors or department heads, not 80 per cent, as the complainant claimed.
9. 496. At the request of the delegates, the issue of setting up a workers' council was discussed at the meeting. Of the 28 members who should have been members of this council, only 18 were elected by secret ballot. Ten candidates, including officers of the two major unions, the PRMTU and NPRP, failed to win enough votes. The other members of the council should be elected at the next conference. It was also decided that the members of the council would represent workers and managers on an equal footing (14 members for each side). The Government also claims that the respective powers of the council and the trade union organizations are clearly defined, a fact that is evidenced by the minutes of the meeting of 24 June 1998 of the commission established to review the port's internal regulations. These minutes were signed by representatives of management and of the trade unions, including the NPRP. The allegation that the workers' council was infringing the rights of the NPRP to defend workers' interests is, therefore, according to the Government, without foundation.
10. 497. The Government acknowledges that, during the meeting in question, delegates voted for a moratorium on strikes. The visiting government commission considers that this came about, firstly, as a result of the situation which arose in the workforce after the court ruling that the planned strike was illegal, and secondly, as a result of the diametrically opposed views of the great majority of the workers, on the one hand, and of the NPRP representatives, on the other, concerning the manner in which the port management handles economic and social development activities. The Government considers that under the terms of the collective agreement, the port workers enjoy considerable benefits which most of them value. The Government points out that in 1999 the average wage of the port workers was 514 hryvnas and that of stevedores and machinery operators was 820 hryvnas, as opposed to a national average wage of 166.6 hryvnas.
11. 498. The Government confirms that the port management proposed a new collective agreement for 1999. In accordance with current legislation, a joint committee with 22 members was established with a view to conducting negotiations leading to a collective agreement. The workers' representatives on the committee included five NPRP members (the union has a total of 2,874 members), five representatives of the PRMTU (which has 4,922 members) and one representative of the non-unionized workers. The port management ensured that the unions and the commission had all the information needed to draft the agreement, including documents concerning the social, economic and financial situation of the undertaking.
12. 499. The Government also acknowledges that the proposed collective agreement which was drafted on the basis of current legislation differs considerably from the previous agreement. According to the Government, it reflects a position of principle agreed by management and the unions. Unlike the previous collective agreement, it does not contain any clauses contrary to current legislation. The Government maintains that this implies neither a worsening of the legal, financial and social position of port workers, as the complainant claims, nor a move to sideline the NPRP and other unions from the task of defending workers' social and economic rights.
13. 500. According to the Government, within the joint commission the NPRP officers obstructed any attempts to reach an agreement and refused to allow the matter to be discussed by a workers' meeting, as is required by the Ukrainian Act on collective agreements.
14. 501. The port management was also inflexible in its attitude towards the wording of clauses in the collective agreement defining the specific powers of workers' representatives with regard to the drafting of the agreement. The parties did not establish a consultative committee. The port's internal regulations do not provide for a specific representative body empowered to sign a collective agreement on behalf of the workforce.
15. 502. According to the Government, the problem is not that the port management has obstructed the NPRP's legitimate activities, but rather, that the NPRP's own President and activists have seen fit to disregard the other four unions present in the port and have refused to cooperate with them.
16. 503. The Government considers that the vote for strike action by the NPRP conference of 18 August 1999 was a flagrant violation of the Settlement of Collective Labour Disputes Act. There was no recourse to arbitration or conciliation proceedings which could have resolved the matter. In some departments, there was no meeting to elect delegates to the meeting which was held for the purpose of voting on strike action. Not all of the port's 9,236 workers were informed of the vote. According to the Government, most of the workers employed in the port's eight terminals were against strike action.
17. 504. The government commission also examined the court rulings handed down in the present case. It would appear that the judicial authorities took their decisions in the light of the fact that the port operates continuously and that, according to the Transport Act, strikes are prohibited in continuous-operation transport undertakings. The unlawful nature of the strike was confirmed by the National Mediation and Conciliation Service.
18. 505. Finally, the Government indicates that at the request of the Ministry of Labour, the State Prosecutor's Office will be conducting an inquiry with a view to verifying the information contained in the complaint alleging that the management violated the rights of the NPRP and of its President.

C. The Committee's conclusions

1. 506. This case concerns allegations of violations of freedom of association committed by an employer and the public authorities, namely: (1) the refusal by an employer to provide a trade union with premises for its conference; (2) pressure by an employer to force members of the complainant trade union to resign from it; (3) use of the employer's own funds to set up a young workers' association which signed a no-strike agreement; (4) a workforce meeting called by the employer and controlled by management which agreed to a moratorium on strike action, and the establishment by the employer of a workers' council; (5) pressure on the complainant trade union aimed at forcing it to enter into a new collective agreement, and threats to have the agreement signed by the management-controlled workers' council in the event of refusal; (6) court rulings that a planned strike in the port was illegal; (7) various attempts to obstruct the work of the union, such as the seizure of financial records and closure of bank accounts; and (8) pressure on workers, acts aimed at curtailing freedom of movement, an attempt to abduct the President of the union with the help of the police.
2. 507. As regards the employer's refusal to provide the complainant with premises for its conference, the Committee notes the Government's statements to the effect that the same decision was taken with regard to the NPRP's rival organization and that is was taken owing to the very short notice given (one day) and to the advantage in postponing the meeting for a month to allow discussion of the undertaking's financial situation. While stressing that the organization of a trade union conference is a matter for the union concerned and should not be subject to interference by the employer, the Committee considers that so short a period of notice may justify the employer's refusal to provide premises. The Committee also notes that the NPRP was able, despite the refusal to provide premises, to hold its conference as planned.
3. 508. As regards the allegations that pressure was brought to bear by the employer to force workers to leave the complainant union, the Committee notes that according to the Government, the commission sent to the port found no evidence, either direct or indirect, that any such pressure had been put on workers. The Committee notes nevertheless that, according to the Government itself, more than 1,000 workers recently resigned from the complainant union. The Committee also notes the lack of any reply from the Government concerning specific allegations that a declaration had been made at a work brigade meeting that the independent trade union would be dissolved because it did not meet the requirements of the port management, that sheets of paper were distributed to workers in order to invite them to state in writing their intention to leave the independent union, and that a union member who protested against these illegal demands was subjected to psychological pressure, as the victim himself told the government commission.
4. 509. Under these circumstances the Committee is bound to draw the Government's attention to the fact that it can be very difficult to prove that an employer has tried to induce a worker to leave a trade union when workers fear that they may lose their jobs. Given the large number of "resignations" from the complainant union (more than 1,000, or almost one-quarter of its total membership), the Committee considers that there should be another inquiry by an independent body which has the confidence of both parties, with a view to establishing the circumstances of these resignations and assessing the reliability of the allegations. If it is found that pressure was brought to bear on the workers to leave the union, the Committee requests the Government to ensure that this does not recur and to keep it informed of the outcome of the inquiry.
5. 510. As regards the allegation concerning the use of the employer's own funds to set up a young workers' association which signed an agreement under the terms of which young workers would be required to work in the port in the event of a strike, the Committee notes that the Government denies the allegation that the clause allowing the organization to set up work brigades violates trade union rights, since the activities of the association in question do not, according to the Government, under any circumstances include strike-breaking. The Committee notes that, according to the evidence supplied with the complaint, the agreement contains no specific "no-strike" clause. It also notes that, according to the Government, several members of the young workers' association also belong to the complainant union, the NPRP. In the opinion of the Committee, there is nothing in the file which it has in its possession to indicate that the association was set up in order to weaken the position of the complainant or to obstruct its activities. However, the Government should ensure that the functions carried out by the young workers' association do not encroach on the normal activities of a trade union organization.
6. 511. As regards the workforce meeting called by the employer on 4 September 1998 in which, according to the complainant, 80 per cent of the participants were managerial staff or administrative employees, the Committee notes that, according to the Government, only 19.6 per cent of the delegates at this meeting were managerial staff and that of the 183 elected delegates, 107 belonged to the Trade Union of Maritime Transport Workers of Ukraine (PRMTU), 46 to the NPRP, three to the Service Workers' Union and 27 were not unionized. The Committee has taken note of the minutes of this meeting of 4 September 1998 supplied with the complaint, which show that the meeting took place in the presence of the municipal authorities, and that it censured the NPRP's actions in calling for strike action and declared a moratorium on strike action for as long as the country's economic difficulties continued. None of the ten candidates from the major trade unions (the NPRP and the PRMTU), including the two leaders, Mr. Boytchuk of the NPRP and Mr. Bryzgalov of the PRMTU, were elected to the workers' council.
7. 512. Given the contradictory statements of the complainant and the Government concerning the representativeness of the workforce meeting, the Committee is unable to express an opinion on this point. However, the Committee considers that the functions of such workers' meetings should not encroach on the role of the trade union organizations. It would appear in the present case that the meeting assumed certain trade union functions by declaring a moratorium on strikes. The Committee is confirmed in this view by the fact that the port management threatened to have the new collective agreement signed by the workers' council if the complainant refused to do so. In this regard, the Committee recalls that, according to the Collective Agreements Recommendation, 1951 (No. 91), "For the purpose of this Recommendation, the term 'collective agreements' means all agreements in writing regarding working conditions and terms of employment concluded between an employer, a group of employers or one or more employers' organisations, on the one hand, and one or more representative workers' organisations, or, in the absence of such organisations, the representatives of the workers duly elected and authorised by them in accordance with national laws and regulations, on the other." In this regard, the Committee has previously emphasized that the Recommendation in question stresses the role of workers' organizations as one of the parties in collective bargaining. Direct negotiation between an undertaking and its employees, bypassing representative organizations where these exist, might in certain cases be detrimental to the principle that negotiation between employers and organizations of workers should be encouraged and promoted. (See Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 786.) The Committee therefore considers that the Government should see to it that activities which naturally pertain to trade unions are carried out by trade union organizations that are independent of employers, and in particular that workers' collectives do not encroach on the normal functions of trade unions, particularly with regard to strikes and collective bargaining.
8. 513. With respect to the notice of strike action given by the complainant after a request had been made, according to the complainant, for conciliation proceedings to be started, the Committee has taken note of the two court rulings supplied with the complaint that the planned strike was illegal. The Committee notes that the Odessa Regional Court considered that the available dispute settlement procedures had not been exhausted and that no attempt at conciliation had been made. The court ruled that the port provided a continuous service and that, in accordance with section 18 of the Transport Act which prohibits strike action in such cases, the strike notice should be declared illegal.
9. 514. In cases concerning violations of the right to strike, the Committee has always recognized the right to strike of workers and their organizations as a legitimate means of defending their economic and social interests. It has also considered that the conditions that have to be fulfilled under the law in order to render a strike lawful should be reasonable and in any event not such as to place a substantial limitation on the means of action open to trade union organizations. (See Digest, op. cit., paras. 474 and 498.) The Committee has also emphasized that while the right to strike may be restricted or prohibited in essential services in the strict sense of the term, that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population, provided that the workers are given appropriate guarantees, port activities generally do not constitute essential services in the strict sense of the term, although they are an important public service in which a minimum service could be required in case of a strike. (See Digest, op. cit., paras. 526, 545 and 564.) The Committee, therefore, requests the Government to amend section 18 of the Transport Act to ensure that it cannot be construed as prohibiting strikes in ports.
10. 515. As regards the allegation that threats were made against the leaders of the complainant union and against the union itself (seizure of financial records, closure of bank accounts, pressure, infringements of freedom of movement and an attempt to abduct the President of the NPRP), the Committee notes the Government's general statements to the effect that the Office of the State Prosecutor has been ordered to conduct an inquiry. The Committee is bound to express its concern at the nature of the allegations in question which, if true, would constitute grave violations of freedom of association. The Committee requests the Government to ensure that the inquiry is conducted with diligence and to keep it informed of the findings.