Rapport intérimaire - Rapport No. 325, Juin 2001

1. 547. The Committee has already examined the substance of this case at its November 2000 meeting when it submitted an interim report to the Governing Body [see 323rd Report, paras. 525-543].
2. 548. The Government provided further information in communications dated 7 and 30 November, 14 December 2000 and 29 March 2001. The complainant forwarded additional information in a communication dated 1 May 2001.
3. 549. 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. Previous examination of the case

1. 550. At its meeting in November 2000, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) Considering that sections 11 and 16 of the Act on “Trade Unions, their Rights and Safeguard of their Activities” are in violation of Convention No. 87 and taking note of the recent decision of the Ukrainian Constitutional Court on the unconstitutionality of certain provisions of the said Act, the Committee requests the Government to take all necessary measures to bring sections 11 and 16 of the said Act into full conformity with the provisions of that Convention and to keep it informed in this regard.
   • (b) The Committee requests the Government to take the necessary measures to ensure that, once the registration formalities have been observed, the trade unions at the Volynoblenergo and Lutsk Bearing Plant enterprises do acquire legal recognition and are able to exercise freely their activities.
   • (c) The Committee regrets that the Government has not provided any information on the allegations of harassment, intimidation and initiation of legal proceedings against the leaders of the unions at the Volynoblenergo and Lutsk Bearing Plant enterprises and requests it to transmit its observations on this aspect of the case without delay. It also requests the Government to transmit its observations on all the new allegations submitted by the complainant in its most recent communication.
   • (d) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspect of this case.

B. New reply from the Government

1. 551. In its communication of 7 November 2000, the Government indicates that the ruling of the Constitutional Court of Ukraine which declared unconstitutional certain provisions of sections 11 and 16 of the Act on “Trade Unions, their Rights and Safeguard of their Activities” will make it possible to eliminate the provisions which were in contradiction with the provisions of Convention No. 87. In this regard, the Ministry of Labour and Social Policy has requested technical and advisory assistance from the ILO in order to put the provisions of the said Act into full conformity with Convention No. 87. Following this request, an ILO technical advisory mission will visit the country sometime this spring.
2. 552. As regards the registration of the Volyn Regional Trade Union Organization of the All-Ukraine Trade Union “Capital/Regions” and its affiliates at the Volynoblenergo and Lutsk Bearing Plant enterprises, the Government explains that trade union affiliates obtain legal personality on the basis of the by-laws of a registered All-Ukraine Trade Union. In this regard, the Government indicates that the All-Ukraine Trade Union “Capital/Regions” was registered by the Ministry of Justice on 6 October 2000. However, in its most recent communication of 29 March 2001 the Government indicates that the Volynskaya Province division of the All-Ukraine Trade Union “Capital/Regions” has not yet been registered with the local authorities, since the required documents have not been submitted.
3. 553. As regards the remaining allegations of harassment, intimidation and initiation of legal proceedings against trade union leaders, the Government provides the following information. Concerning the case of Mr. Vdovichenko of the Independent Trade Union at the Lutsk Bearing Plant enterprise, the Government explains that following a complaint brought by the Board of Directors of the said plant, the district court of Volynskaya Province ruled that in April 2000 Mr. Vdovichenko was liable for causing moral harm. Furthermore, the Government indicates that following a meeting of the union members at the plant in December 2000, the decision was taken to suspend Mr. Vdovichenko from his post as union president and to forbid him to speak on the union’s behalf. It was also decided during that meeting to form a new trade union, draw up by-laws and prepare for a constituent assembly. On 17 January 2001, the constituent assembly of members of the Free Trade Union took place and it was decided that another free trade union “Metallist” should be established to represent the workers at the Lutsk Bearing Plant. Union by-laws were adopted, a president and officers were elected, and representatives were appointed to sit on the committee responsible for negotiating a collective agreement for 2001. Concerning the dismissal of Mr. Shavernev, trade union activist at the Lutsk Bearing Plant enterprise, the Government explains that he was dismissed for absenteeism on 14 June 2000 in accordance with section 40(4) of the Ukraine Labour Code. Mr. Shavernev initiated legal proceedings to challenge the decision of the enterprise but in September 2000, the Kivertsovskij district court in Volynskaya region dismissed his case. As regards the attack on Mr. Chupikov, leader of the Free Trade Union, at the Voltex enterprise, the Government indicates that according to the Ministry of the Interior, Mr. Chupikov and his wife were assaulted and robbed at around midnight on 20 October 1999 in the city of Lutsk. The local authorities have initiated criminal investigations on 31 December 1999 and 27 August 2000 in accordance with section 141(2) of the Penal Code. These investigations, which are trying to identify and punish the offenders, are being supervised by the Ministry of the Interior. The Government indicates that it will keep the Committee informed of any developments concerning this incident.
4. 554. Finally, as concerns the alleged unfair dismissal of 1,150 workers in 1999, the Government explains that in accordance with instruction No. 04-471-98 issued on 1 March 2000, the matter was examined by the public prosecutor of the city of Lutsk, who concluded that the dismissals in question had not contravened the law.

C. The Committee’s conclusions

1. 555. The Committee recalls that this case related to two sets of allegations, namely allegations of a legislative nature related to certain provisions of the Act on “Trade Unions, their Rights and Safeguard of their Activities”, and allegations of a factual nature related to the denial of legal recognition of trade unions, harassment and intimidation of trade union activists as well as unlawful dismissals.
2. 556. With regard to the allegations of a legislative nature, the Committee takes note with interest of the ruling of the Constitutional Court of Ukraine which declared unconstitutional certain provisions of sections 11 and 16 of the Act on “Trade Unions, their Rights and Safeguard of their Activities”, as well as the Government’s willingness to put these provisions into full conformity with Conventions Nos. 87 and 98. The Committee also takes due note of the Government’s request for technical assistance on this issue following the Committee’s offer and understands that the Office has undertaken the necessary arrangements. The Committee asks the Government to keep it informed of the measures effectively taken to bring the abovementioned Act into full conformity with Conventions Nos. 87 and 98.
3. 557. As regards the registration of the Volyn Regional Trade Union Organization of the All-Ukraine Trade Union “Capital/Regions” and its affiliates at the Volynoblenergo and Lutsk Bearing Plant enterprises, the Committee notes the registration, on 6 October 2000, of the All-Ukraine Trade Union “Capital/Regions”, which also entails that its affiliates have obtained legal personality. However, the Committee notes that according to the Government’s most recent communication, the Volynskaya Province division of the All-Ukraine Trade Union “Capital/Regions” has not yet been registered with the local authorities, since the required documents have not been submitted. The Committee trusts that the said union will be registered without delay as soon as it has complied with the required formalities and asks the Government to keep it informed in this regard.
4. 558. As regards the remaining allegations of harassment, intimidation and initiation of legal proceedings against trade union leaders, the Committee notes firstly that concerning the case of Mr. Vdovichenko at the Lutsk Bearing Plant enterprise, the District Court of Volynskaya Province division ruled in April 2000 that Mr. Vdovichenko was liable for causing moral harm at the Lutsk Bearing Plant. Furthermore, the Committee notes that following a meeting of the union members of the plant, Mr. Vdovichenko was suspended as president of the union and that at a later constituent assembly a new union was formed and new officials were elected. In this regard, the Committee requests the complainant to provide more information on the current trade union situation at the Lutsk Bearing Plant. Concerning the case of Mr. Shavernev, the Committee takes note of the fact that while he challenged his dismissal, the district court dismissed his case in September 2000. With regard to the case of Mr. Chupikov, the Committee notes that the assault he and his wife were victims of is under investigation. The Committee asks the Government to keep it informed of the outcome of the investigation and hopes that the perpetrators will be punished. The Committee regrets that the Government has not provided any information on the trade union leader at the Volynoblenergo enterprise, Mr. Jura, and requests it to keep it informed on this aspect of the case. Finally, the Committee asks the Government to put an end to all acts of harassment and intimidation of trade unionists. It asks the Government to keep it informed in this regard.
5. 559. With regard to the dismissal of a high number of workers in 1999 at the Lutsk Bearing Plant enterprise, the Committee notes that the complainant had mentioned the case of 223 workers who were laid off at the end of 1999 without the union being informed of it, while the Government refers to 1,150 dismissed workers whose case was examined by the public prosecutor of the city of Lutsk, who later concluded that the said dismissals had not contravened the law. In these conditions, the Committee considers that it does not have enough elements from the complainant to conclude that the dismissals implied a violation of trade union rights and therefore requests it to provide further information on this aspect of the case. Finally, the Committee asks the Government to send its observations concerning the allegations contained in the complainant’s most recent communication.