Observation (CEACR) - adoptée 2002, publiée 91ème session CIT (2003)

The Committee takes note of the report supplied by the Government. It further notes the comments made by the Ukrainian Union of Leaseholders and Entrepreneurs (SOPU) on the application of the Convention and requests that the Government transmit its observations thereon.

The Committee also notes the conclusions of the Committee on Freedom of Association concerning Case No. 2038 (see 326th and 329th Reports, approved by the Governing Body at its 282nd and 285th Sessions).

Article 2 of the Convention. Right of workers and employers to establish and join organizations of their own choosing. The Committee notes the adoption on 13 December 2001 of the Act amending the Trade Unions Act, and more particularly its sections 11 and 16 previously commented upon by the Committee. It notes with interest that the requirement to unite more than half the workers of the same vocation or occupation in order for a trade union to obtain district or all-Ukrainian status provided for by section 11 was repealed. It further notes with interest that, according to the current wording of section 16 of the Trade Unions Act, trade unions and confederations of trade unions acquire their legal personality from the moment of their creation. As concerns the procedure of trade union registration, the Committee notes that the relevant paragraphs of section 16 remain unchanged. The Committee understands that the Government itself has acknowledged that the distinction between the acquisition by a trade union of legal personality (which occurs as soon as its by-laws are approved) and official legal recognition of a trade union creates certain difficulties with regard to the interpretation of standards concerning the inclusion of trade unions in the appropriate state registers. The Committee notes from the Government’s report that a final consensus on this issue has not yet been achieved and that the National Council of Social Partnership has made a decision to recommend that the Cabinet of Ministers charge the Ministry of Justice, with the participation of the parties concerned, with the task of elaborating, within a two-month period, eventual proposals on introducing further changes to the Trade Unions Act. The Committee recalls that in many countries, organizations are required to register; such legislation is not in principle incompatible with the Convention. However, it considers that problems of compatibility with the Convention may arise where, in practice, competent administrative authorities make excessive use of their powers and are encouraged to do so by the vagueness of the relevant legislation (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 74 and 75). The Committee trusts that, after full consultations with the social partners on the possible amendment of section 16 of the Act, a consensus will be found with a view to ensuring that the legalization requirement (through registration) is not applied in practice so as to amount to a requirement for previous authorization to establish an organization. The Committee requests that the Government keep it informed of any developments in this respect and to provide information in its next report on the number of cases where registration has been denied and the reasons therefore.

Article 3. Right of workers’ organizations to formulate their programmes of action without interference from the public authorities. The Committee had previously noted that section 19 of the Act on the procedure for the settlement of collective labour disputes provided that a decision to call a strike had to be supported by a majority of the workers or two-thirds of the delegates of a conference. The Committee once again asks the Government to indicate in its next report the measures taken or envisaged in order to amend section 19 of the Act so as to ensure that account is taken only of the votes cast and that the required majority and quorum is fixed at a reasonable level.

Finally, the Committee once again requests that the Government indicate 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.

In addition, a request regarding certain points is being addressed directly to the Government in respect of some provisions of the Law on the organizations of employers.