Rapport définitif - Rapport No. 403, Juin 2023

1. 534. The complaint is contained in a communication dated 2 July 2020 submitted by the Federation of Trade Unions of Ukraine (FPU) and the Confederation of Free Trade Unions of Ukraine (KVPU). By its communication dated 27 January 2022, the FPU supplied further information.
2. 535. The Government of Ukraine transmitted its observations in communications dated 30 October 2020 and 24 April 2023.
3. 536. Ukraine has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainants’ allegations

1. 537. In their communication dated 2 July 2020, the complainant organizations – the FPU and the KVPU – allege that if adopted, the draft Law “On Amendments to some Legislative Acts of Ukraine (regarding certain matters relating to trade union activities)” (No. 2681), submitted by a group of parliamentarians for consideration by the Verkhovna Rada, would violate freedom of association and collective bargaining rights in Ukraine. The complainants allege that the authors of the draft Law asserted, on the one hand, that the legislative framework in the area of trade union rights is outdated and needed to be reformed to strengthen the role of an individual worker, and on the other, that the development of digital technologies and availability of legislative databases, accessibility of legal registers and a wide network of solicitors and lawyers allow prompt and effective protection and restoration of workers’ rights by workers themselves.
2. 538. The complainants explain that the draft Law aims at amending the Law on Trade Unions, their Rights and Guarantees of Activities (Law on Trade Unions) of 1999 and the Labour Code and detail the proposed amendments as follows.
3. 539. The draft Law (paragraph 1(1) and paragraph 2(7)) proposes to add new sections to the Labour Code (section 247-1) and the Law on Trade Unions (section 16-1) and to amend section 15 of the Law on Trade Unions to provide for a mandatory establishment of monitoring commissions to be established by trade unions. In this respect, the complainants explain that at present, trade unions establish monitoring and audit commissions as per the obligations set forth by their respective by-laws. Such commissions consist of trade union members and are not accountable to trade union leadership, thereby guaranteeing full and independent supervision of the elected bodies by trade union members. The complainants consider that the authors of the draft Law propose to establish additional and duplicate monitoring commissions which would consist of trade union members and, when necessary, would also involve, on a voluntary basis, non-union members. According to the complainants, such commissions will have the right to monitor: (1) the compliance of trade union elected bodies activities with the requirements of the legislation, by-laws and collective bargaining agreements; (2) the functioning of trade unions’ elected bodies; and (3) the use of trade union funds. They will also have the right to deal with any conflicts within a given trade union. The complainants argue that such monitoring commissions are intended to replace other bodies which have been formed by trade unions in accordance with their by-laws. The FPU and the KVPU thus consider that the draft Law imposes procedures on trade unions which relate exclusively to trade unions’ internal activities, thereby directly interfering in trade union internal affairs. The complainants point out that the specialists of the Main Scientific and Expert Directorate of the Verkhovna Rada proposed to delete draft new section 247-1 on monitoring commissions as the Labour Code governs labour relations whereas this issue concerns the internal organization of trade unions.
4. 540. The complainants also consider that the proposed amendment to section 36 of the Law on Trade Unions (under paragraph 2(14) of the draft Law) imposing an obligation on elected trade union bodies to report back, within the imposed deadlines, to members of primary trade union is already governed by trade union by-laws and contravenes the requirements of Article 3 of Convention No. 87, as these matters should be governed exclusively by trade union by-laws.
5. 541. Furthermore, in the complainants’ opinion, the amendments made under paragraph 2(1) of the draft Law to section 1 of the Law on Trade Unions which limit the establishment of primary trade union organizations in educational institutions contravene Articles 2 and 3 of Convention No. 87. They further consider that amendments to the same section which would limit to two the number of trade unions that can be established in a company, institution or organization, restrict the right to freedom of association. The FPU and the KVPU consider that where there are already two existing trade unions in a company, the amendment, if adopted, would discriminate against employees preferring to establish an alternative third trade union organization. Furthermore, according to the complainants, the draft Law introduces a ban on the establishment of primary trade unions in organizations/undertakings employing fewer than ten workers, which in practice would result in banning trade union activity and collective bargaining.
6. 542. The complainants also argue that paragraph 2(2) of the draft Law, which amends section 7 of the Law on Trade Unions by excluding the restriction on workers’ rights to dual trade union membership, which trade unions can presently set out in their by-laws, to be a violation of freedom of association.
7. 543. The complainants also indicate the proposed amendment to section 11 of the Law on Trade Unions to increase to three the number of primary trade unions to form a local trade union has been previously recognized by the Constitutional Court as being inconsistent with part 1 of Article 36 of the Constitution of Ukraine.
8. 544. The complainants consider that the proposed amendments to section 249 of the Labour Code and section 42(3) of the Law on Trade Unions deny employees the right to transfer, upon a written request submitted to their employer, a portion of their wages as trade union membership dues. The complainants explain in this regard that an accounting data on contributions is usually used to determine the number of trade union members for collective bargaining purposes and allege that despite the current obligation to transfer trade union dues, it is not uncommon for the employer to oppose it in every possible way. Therefore, they argue, retaining the obligation to transfer membership dues by law is an additional lever to ensure the stability of trade union work and facilitate effective social dialogue at the local level. The FPU and the KVPU further consider that the proposed amendments to sections 14 and 15 of the Law on Trade Unions obliging trade unions to set up in their by-laws the amount of trade union dues and the procedure for their transfer, violates trade union rights.
9. 545. The complainants also consider discriminatory the following proposed amendment to section 20 of the Law on Trade Unions: “where a trade union includes persons who are members of the management of the company, institution, or organization, then such trade union may not act as a workers’ representative in collective bargaining. Persons representing employers shall be prohibited from negotiating and concluding collective bargaining agreements on behalf of employees.” They point out in this respect that as there is no definition of the term “management” in the legislation in force, it is impossible to determine who belongs to the management; it is therefore not clear whether the term includes only the head of the legal entity or other employees holding the position of deputy head, and heads and deputies of various divisions of such entity. The draft Law, if adopted, would not only deny the management personnel the right to choose freely the trade union they wish to join, but would also deprive the entire workforce of the entity in question of the right to bargain collectively.
10. 546. The complainants further consider that the proposed amendments to section 251 of the Labour Code, and sections 28 and 45 of the Law on Trade Unions restrict the right of trade unions to receive information necessary to form and justify their position during collective bargaining and are contrary to Article 11 of Convention No. 87.
11. 547. The complainants also consider that paragraphs 1(7) and 2(17) of the draft Law amending section 252 of the Labour Code and section 41 of the Law on Trade Unions, deny workers elected to trade union bodies additional guarantees in disciplinary proceedings against them and allow members of elected trade union bodies to be dismissed without the consent of a higher trade union body. The FPU and the KVPU argue that such amendments would lead to unjustified dismissals of such workers and persecution for trade union activity even after the end of their mandate.
12. 548. The complainants further consider it inadmissible to withdraw (by virtue of paragraph 1(2) of the draft Law) the right of an elected trade union body to demand the dismissal of the head of an undertaking, as currently set out in section 247(9) of the Labour Code and section 33 of the Law on Trade Unions, if he or she violates labour legislation, fails to comply with the provisions of a collective agreement, or fails to conclude such an agreement. According to the complainants, the existing guarantees enable trade unions to influence unscrupulous employers who disregard workers’ rights, especially as there is no mechanism in Ukraine to involve workers in the company’s management. The complainants point out that there is no abuse on the trade unions’ part when exercising this right, as ultimately, the courts decide the legality of trade unions’ demands and evaluates employers’ actions.
13. 549. The complainants further allege that if adopted, the draft Law would deny trade unions some social functions and, in particular, as concerns the right to represent insured persons in the system of compulsory State Social Insurance (paragraph 1(2) of the draft Law as concerns section 247 of the Labour Code and section 38 of the Law on Trade Unions); the right of trade unions to demand and obtain from the employer relevant documents, information concerning working conditions, implementation of collective agreements and compliance with the labour legislation; the right to verify payroll and State Social Insurance calculations (section 248 of the Labour Code and section 40 of the Law on Trade Unions); and the right to receive from employers contributions of no less than 0.3 per cent for cultural, physical and health-improvement activities, as well as other funding under collective agreements for cultural, physical and health-improvement activities (section 250 of the Labour Code). The complainants further consider that the amendment to section 13 of the Law on Trade Unions aimed at withdrawing the State assistance to trade unions in establishing business partnership with employers and their associations, as well as promoting training for trade union personnel does not satisfy the requirements of Article 3 of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
14. 550. The complainants further allege that reducing paid union leave from six to three calendar days for employees who are elected trade union leaders may lead in practice to employers granting only one day’s leave to trade union activists (proposed amendment to section 252 of the Labour Code and section 41 of the Law on Trade Unions).
15. 551. The FPU and the KVPU also allege that the proposed amendments to sections 21, 22, 24 and 28 of the Law on Trade Unions deny trade unions the right: to participate in considerations of draft laws regulating labour, social and economic relations; to be involved in review by executive agencies and local government bodies, as well as by employers and other citizens’ associations of their proposals; to receive free of charge information on matters affecting labour and socio-economic rights and interests of their members as well as information on the economic activities of undertakings; and to join, as representatives of insured persons, supervisory boards of compulsory State Social Insurance Funds. The complainants consider that this will virtually end the existing social dialogue and destroy the trade union movement in Ukraine. In respect of the amendments to section 24 of the Law on Trade Unions revoking the right of trade union representatives to join supervisory boards, the complainants point out that under the legislation in force, representatives of employers and of insured persons are entitled to manage the fund they have established, while the State can only control, but not use, the funds’ assets.
16. 552. The complainants further consider that the deletion of part 6 of section 249 of the Labour Code, part 2 of section 42 and section 43 of the Law on Trade Unions regarding the provision by employers of buildings, premises and facilities to trade unions for cultural, educational, health and wellness activities contravenes Article 11 of Convention No. 87 and Paragraph 16 of the Workers’ Representatives Recommendation, 1971 (No. 143).
17. 553. The complainants further explain that in accordance with section 24 of the Law on Public Associations, in order to fulfil its statutory purpose (purposes), a public association with the status of a legal person shall be entitled to own, use funds and other property legally transferred to it by its members or the State, acquired as members’ dues, donated by citizens, companies, institutions and organizations, acquired as a result of the association’s entrepreneurial activity, or that of legal entities (companies or undertakings) established by it, as well as property purchased with its own funds, and loaned temporarily. The complainants explain that at present, some trade union organizations own office premises, training centres and social facilities (medical sanatoria, children health camps, tourist facilities, etc.), which were built and purchased using members’ dues and other trade union funds. Some of the facilities were transferred free of charge by the State during the Soviet times. A large proportion of these facilities is owned by the FPU or its affiliates. For each of these facilities, the relevant State bodies issued official certificates confirming the ownership rights of the facilities in question. Thus, the FPU, all-Ukrainian industry sector trade unions and regional trade union associations are currently the lawful owners of property. The complainants indicate that despite the constitutional protection of trade union property, the final provisions of the draft Law provide for compulsory transfer to the State, that is, namely for confiscation, of all property of trade unions of the former USSR and Ukrainian SSR, currently legally owned by trade unions of Ukraine. The complainants explain that the Federation of Independent Trade Unions of Ukraine received property with the right of ownership from the General Confederation of Trade Unions of the USSR by an agreement in the prescribed manner and in accordance with the legislation in force in November 1990, that is, namely before the adoption, in August 1991, of the Act of Declaration of Independence of Ukraine. The FPU believes that paragraph 21 “Final Provisions” of the draft Law is discriminatory towards trade unions, since it violates the principle of equality of rights for trade unions in comparison to other public organizations in terms of regulating their property ownership rights. In particular, there are no property claims on behalf of the State on other all-Ukrainian public organizations in a similar situation to that of the trade unions of Ukraine, which were operating during the time of the Ukrainian SSR and were part of the public associations of the USSR (creative unions of writers, sports societies, etc.). The FPU considers that the property owned by trade unions is not public property of the USSR or Ukrainian SSR; these assets were created using trade union funds, and their confiscation in favour of the State is illegal.
18. 554. The FPU and the KVPU indicate that while the Main Scientific and Expert Department of the Verkhovna Rada of Ukraine, which is responsible for legal assessment of draft legislation submitted to Parliament, concluded that the draft Law, if adopted, will not be in conformity with Conventions Nos 87, 98 and 135, on 27 May 2020, the Committee on Social Policy and Protection of Veterans’ Rights of the Verkhovna Rada of Ukraine decided to recommend without any amendments draft Law No. 2681 for adoption in the first reading.
19. 555. In its communication dated 27 January 2022, the FPU alleges that, in addition to draft Law No. 2681, there are 28 other draft laws registered in the Verkhovna Rada aimed at reforming social and labour relations in the country without proper social dialogue with trade unions, which, if adopted, will deprive or significantly restrict the right of trade unions to represent and defend the rights and interests of their members. The FPU states that under pandemic conditions, mass protest actions against these draft laws were more difficult or even prohibited.
20. 556. The FPU adds that a novelty in the law-making process in Ukraine is the inclusion of anti-union provisions in draft laws that have no relation to trade union activities. It explains in this respect that during the preparation for the second reading of the draft Law “On Amending Certain Legislative Acts of Ukraine concerning Improvement of Healthcare Management and Provision on Health Services to the Population”, the Committee of the Verkhovna Rada on Healthcare included a provision pertaining to the employer’s obligation – as the payer of the single social contribution – to report employees’ trade union membership to the authorities. Despite the fact that the Main Legal Department of the Verkhovna Rada considered that this provision to be in violation of the national legislation, the law was passed by the Rada on 15 December 2021 and signed by the President of Ukraine on 6 January 2022. The FPU alleges in this respect that it has received numerous notifications of collection of information by the local authorities, through their subordinate institutions, establishments and enterprises, on trade unions operating in such entities, as well as on the payment of membership dues – for subsequent transmission to the third parties.
21. 557. The FPU further informs that on 10 December 2021, two draft laws prepared by the Government of Ukraine – “On Legal Regime of Property of All-Union Public Associations (Organizations) of the Former USSR” and “On Moratorium on Alienation of Property of All-Union Public Associations (Organizations) of the Former USSR” – where registered in Verkhovna Rada under Nos 6420 and 6421, respectively. According to the FPU, the drafts provide for the confiscation of property of public organizations. As concerns trade unions, the FPU indicates that the draft laws provide for the confiscation of buildings, training centres, health resorts, sports and tourism facilities, which trade unions have legally owned for many decades and which are used in the interests of workers. According to the FPU, despite the fact that the Ministry of Justice and the State Property Fund did not support draft Law No. 6420 as not being in line with the international treaties ratified by Ukraine, the draft laws were supported by the Cabinet of Ministers of Ukraine and submitted to the Verkhovna Rada.
22. 558. The FPU further alleges that on 19 October 2021, an investigating judge of the Kyiv Pechersky District Court issued an order to arrest the property and prohibit the disposal and the use of several property objects belonging to trade unions, including the Trade Union House in Kyiv, which houses the headquarters of the FPU and 33 national sectoral trade unions and where 250 trade unionists work. The Trade Union House hosts all trade union statutory events, meetings of the joint representative body of trade unions at the national level – the trade union side of the National Tripartite Socio-Economic Council. It was built in the 1980s exclusively on trade union membership fees, and after the 2014 fire it was rebuilt by trade unions without any help from the State. Foreign national trade union confederations helped to rebuild the Trade Union House by contributing funds to a foundation set up specifically for that purpose. The FPU alleges that the consideration of the case by the judge took place without notifying the FPU and the order itself was made public only two months later, on 10 December 2021. The information about the arrest was included in the Register of Immovable Property Rights on 5 January 2022. The prosecutor’s request was based on the same unconstitutional and unlawful assumptions as draft Law No. 6420. The FPU indicates that this was the fourth attempt to arrest the property of trade unions in 2021. Three previous cases were appealed and dismissed as illegal, groundless and made with violations of substantive and procedural law. The very fact of continuous attempts of the prosecutor’s office to arrest the trade unions’ property indicates that certain oligarchic clans are behind them, rushing to seize the trade union property and undermine trade unions. The FPU appealed the court order and is awaiting the outcome of the appeal. At the same time, on 19 January 2022, the prosecutor’s office filed a new request to transfer the arrested trade union property to the National Agency of Ukraine for finding, tracing and management of assets derived from corruption and other crimes. A court hearing to consider this request was scheduled for 3 February 2022.
23. 559. The FPU concludes by indicating that combined with the advancement of the reform aimed at liberalization of the labour law, which, inter alia, envisages that individual employment contracts would take precedence over laws and collective agreements, and with amendments to the Law on Trade Unions, the confiscation of trade union property would deprive trade unions of their right-protection functions, undermine their ability to promote the principles of decent work and to fight against inequalities and poverty among workers.

B. The Government’s reply

1. 560. In its communication dated 30 October 2020, the Government indicates that draft Law No. 2681 was considered with the participation of trade union representatives at the sittings of the Verkhovna Rada Committee on Social Policy and Protection of the Rights of Veterans on 5 February and 27 May 2020, as well as at the sitting of the Verkhovna Rada Committee on Integration of Ukraine with the European Union on 2 July 2020. The Government points out that on 19 February 2020, during the hearing of the Committee on Social Policy and Protection of the Rights of Veterans on “The current situation of Ukrainian trade unions. The need to reset social/public dialogue”, people’s deputies, representatives of trade unions and their associations, representatives of employers’ associations, and academics expressed their views on the need for further elaboration of draft laws in a working group. It was agreed that the elaboration and considerations of draft laws pertaining to trade union activities in Ukraine should take place in an open format, with the involvement of a wide circle of interested parties.
2. 561. The Government indicates that while social dialogue actors generally agree that there is a need to update the legislation on trade union activity, the draft Law needs to be further amended to ensure its conformity with the ILO Conventions ratified by Ukraine, the recommendations adopted by Ukraine, the European Social Charter (revised), and Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community.
3. 562. The Government further indicates that the Ministry for Development of Economy, Trade and Agriculture submitted proposals concerning the draft Law to the Committee on Social Policy and Protection of the Rights of Veterans, with respect to the: (i) deletion of provisions restricting the number of trade union members and organizations that can be established in an undertaking; (ii) the right of trade unions to receive information on matters regarding the employment and socio-economic rights, the legitimate interests of their members, and the socio-economic development of an enterprise, institution or organization, etc.; (iii) protection of the rights of workers elected to trade union bodies; and (iv) collective bargaining rights of trade unions whose members include the managerial staff.
4. 563. The Government states that, on 27 May 2020, the Committee on Social Policy and Protection of the Rights of Veterans decided to establish a working group – involving trade union representatives – to elaborate proposals for the second reading of the draft Law which would then be introduced by the Chairperson of the said working group if the draft Law is approved in essence at its first reading. The inaugural meeting of the working group took place on 4 September 2020 and social partners at national level elaborated proposals with regards to the draft.
5. 564. The Government points out that pursuant to section 104 of the Rules of Procedure of the Verkhovna Rada, the executive bodies are not empowered to withdraw draft laws that have been tabled by people’s deputies.
6. 565. As regards the expropriation of trade union property, the Government indicates that, to date, the question of determining the holders of the right to ownership of the property of all-Union public organizations of the former USSR located on the territory of Ukraine, including the property of trade union organizations, remains unresolved at the legislative level. By Decision No. 3943-XII of 4 February 1994 on “Property of the All-Union Public Organizations of the Former USSR”, the Verkhovna Rada decided that temporarily, pending the legislative determination of property owners, the said property shall be the property of the State as a whole. The Ministry for Development of Economy, Trade and Agriculture has drawn up a draft Law “On Legal Regime of Property of All-Union Public Associations (Organizations) of the Former USSR”. The comments on that draft Law have now been received from the interested bodies and are being processed by the Ministry with the aim of submitting agreed proposals for consideration by the Government.
7. 566. In its communication dated 24 April 2023, the Government provides the following information. With regard to Law No. 1962-IX on Amendments to Certain Legislative Acts of Ukraine on Improving the System of Healthcare Management and Provision of Medical Care to the Population, dated 15 December 2021, which amended Law No. 2464-VI on Collection and Accounting of the Single Contribution for Obligatory State Social Insurance and, in particular, as regards the reporting by an employer on employees’ membership in a trade union to the tax authority and the provision to the State Register of Compulsory State Social Insurance of information on trade unions membership, the Government indicates that Law No. 2173-IX dated 1 April 2022 on Amendments to the Tax Code of Ukraine and Other Legislative Acts of Ukraine on the Administration of Certain Taxes during the Period of Martial Law and State of Emergency amended Law No. 2464 by excluding the above provisions.
8. 567. The Government further informs that pursuant to subparagraph 4 of paragraph 3 of Section II of Law No. 2215-IX dated 21 April 2022 on the De-Sovietization of the Legislation of Ukraine, the Ministry of Economy has developed a draft Law on Labour with a view to abandoning the Soviet legislative heritage in the field of employment and labour relations and introducing internationally recognized principles and standards for regulating labour relations. Unlike the current Labour Code, the draft Law on Labour includes current trends in the labour market while ensuring decent working conditions. To ensure public discussion, on 23 September 2022, the Ministry of Economy published the draft on its official website. In October 2022, the draft Law was sent to the International Labour Organization. The Government points out that the draft Law does not provide for any restrictions on freedom of association and the right to organize. These relations are regulated by the Law on Trade Unions, which has not been amended and is not expected to be amended to restrict the rights enshrined in Conventions Nos 87 and 98. The Ministry of Economy is currently consulting with the social partners and the scientific and expert community to finalize the draft Law. The Ministry of Economy assures that it is ready for a comprehensive and open dialogue that would facilitate a full understanding of international labour law, as well as the implementation of its norms in the national legislation.
9. 568. Regarding the notifications on the collection by local governments (regional councils) of information from their subordinate institutions, establishments and enterprises on the number of trade union organizations operating in them and information on the payment of membership fees, for further transfer to third parties, the Government indicates that according to section 12 of the Law on Trade Unions, trade unions and their associations are independent. Interference by state bodies, local self-government bodies, their officials, employers and their associations in the statutory activities of trade unions is prohibited. The Ministry of Economy is not authorized to request, analyse, publish or disseminate information on trade union membership in any way. At the same time, the relevant information may be provided directly by a trade union if it makes such a decision.
10. 569. The Government further informed of the adoption, on 23 February 2023, of the Law on Collective Bargaining Agreements and Contracts No. 2937-IX, which will come into force six months after the date of termination or lifting of martial law.
11. 570. Regarding draft laws Nos 6420 on the Legal Regime of Property of All-Union Public Associations (Organizations) of the former USSR and 6421 a moratorium on the alienation of property of all-Union public associations (organizations) of the former USSR, the Government indicates that in accordance with Resolution of the Verkhovna Rada No. 3943-XII on the Property of All-Union Public Organizations of the Former USSR, dated 4 February 1994, until the legislative definition of the subjects of ownership of the property of all-union public organizations of the former USSR located in Ukraine is established, the said property is defined as state property, and the State Property Fund of Ukraine is vested with the right to dispose of this property and has the authority to act as a lessor of property complexes of enterprises and organizations. A significant portion of the trade union property is the property of trade union public associations of the former USSR. All existing sanatoriums, which in the Soviet times were under the jurisdiction of the Main Department of Resorts, Sanatoriums and Rest Homes of the Ministry of Health of the USSR, were transferred to the Ukrainian Republican Council of Trade Unions pursuant to Resolution No. 606 of the Council of Ministers of the USSR of 23 April 1960 on the Transfer of Sanatoriums and Rest Homes of the Ministry of Health of the USSR to Trade Unions. The Ministry of Health of the Ukrainian SSR transferred this property from the jurisdiction of the Main Department of Resorts, Sanatoriums and Rest Homes of the Ministry to the jurisdiction of trade unions free of charge without changing the ownership of this property. Trade unions were granted the right to manage this property within the limits stipulated by Resolution No. 606. Paragraph 5 of Resolution No. 606 stipulated that the State Planning Committee of the Ukrainian SSR, together with the Ministry of Finance of the Ukrainian SSR, the Ministry of Health of the Ukrainian SSR had to determine the amount of investment and sources of funding for the new construction, reconstruction and improvement of sanatorium and resort facilities, which were to be transferred to the Ukrainian Republican Council of Trade Unions. The Government points out that given that the property was not granted to trade unions, they did not have the right to independently dispose of this property and change its form of ownership.
12. 571. The Government further explains that until a special law is adopted to define the ownership of property managed by all-Union public organizations of the former USSR located in Ukraine, the issue of ownership of such property is resolved in court. According to the State Property Fund of Ukraine, since 2011 the ongoing lawsuits were initiated by prosecutors to return the property of all-Union public associations of the former USSR to state ownership. The Government further points out that the need to adopt a special law is also evidenced by the decision of the National Security and Defense Council of Ukraine of 18 February 2015 “On measures to create an appropriate material and technical base for the treatment, rehabilitation and rehabilitation of servicemen and other persons who directly participated in the antiterrorist operation, ensuring its implementation, as well as combatants and disabled veterans”, and the judgment of the European Court of Human Rights of 9 September 2018 in the case of the Parental Care Foundation v. Ukraine (application No. 5876/15), in which the European Court of Human Rights pointed out that Ukraine had no law that would clearly regulate the legal status of the property of all-Union public organizations of the former Soviet Union located in Ukraine and provide for an inventory of the property of such organizations.
13. 572. To resolve this issue, the Ministry of Economy has developed and submitted to the Verkhovna Rada draft Laws Nos 6420 and 6421 of 10 December 2021. The Government indicates that draft Law No. 6420 was repeatedly sent for approval to the Joint Representative Body of Representative All-Ukrainian Trade Union Associations at the national level and the Joint Representative Body of the Employers’ side at the national level. Representatives of the relevant stakeholders were also invited to a conciliation meeting on the draft Law. The Government concludes by indicating that the draft laws are aimed at protecting state property and do not affect the legitimate interests of bona fide purchasers. The adoption of these draft laws will help to establish the legal basis for determining the ownership of the relevant property.
14. 573. Regarding the alleged seizure of trade union property, the Government indicates that part 2 of section 328 of the Civil Code provides that ownership is deemed to have been acquired lawfully unless otherwise is expressly provided by law or the illegality of the acquisition of ownership or the unreasonableness of the assets in the property is established by a court. Court decisions that have entered into force are binding on all state authorities, local governments, their officials and employees, individuals and legal entities and their associations throughout Ukraine.

C. The Committee’s conclusions

1. 574. The Committee notes that the complainants in this case allege that, if adopted, the draft Law “On Amendments to some Legislative Acts of Ukraine (regarding some issues of trade union activities)” (No. 2681) will violate freedom of association and collective bargaining rights in Ukraine. The Committee notes that the draft Law intends to amend the Labour Code and the Law on Trade Unions.
2. 575. The Committee observes that since the filing of the complaint, a draft Law on Labour has been prepared by the Ministry of Economy of Ukraine in 2022 to give effect to the final and transitional provisions of the Law on the De-Sovietization of the Legislation of Ukraine on the need to replace the Labour Code of 1971. The Committee welcomes the Government’s engagement with the International Labour Office in this regard. The Committee observes that the draft Law on Labour, intended to replace the Labour Code as a whole, does not contain any of the amending provisions pertaining to the Labour Code set out by draft Law No. 2681. The Committee notes the Government’s indication that the Law on Trade Unions is not expected to be amended to restrict the rights enshrined in Conventions Nos 87 and 98. The Committee notes, in particular, the Government’s indication that the draft Law needs to be further amended to ensure its conformity with the ILO Conventions ratified by Ukraine, the European Social Charter (revised) and Directive 2002/14/EC of the European Parliament and of the Council establishing a general framework for informing and consulting employees in the European Community. The Committee notes, however, that according to the information on the official portal of the Verkhovna Rada, draft Law No. 2681, amending the Labour Code and the Law on Trade Unions, is still awaiting consideration and is included, by Resolution 2911-IX of 7 February 2023, in the agenda of the 9th session of the Rada. The Committee will therefore proceed to examine the proposed amendments to the Labour Code and the Law on Trade Unions as set out in draft Law No. 2681.
3. 576. The Committee notes the proposed addition of section 241-1 to the Labour Code and of section 16-1 to the Law on Trade Unions, as well as the amendment of section 15 of the Law on Trade Unions providing for a mandatory establishment of monitoring commissions within trade union associations. The Committee notes the complainants’ explanation that currently, by virtue of their by-laws, trade unions are required to set up audit and other monitoring bodies. The complainants consider that the new legislative requirement, which would oblige trade unions to set up (additional) monitoring commissions and which regulates in detail their powers and membership violates the right of trade unions to organize their administration without interference. The Committee recalls in this respect that freedom of association implies the right of workers and employers to elect their representatives in full freedom and to organize their administration and activities without any interference by the public authorities [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 666]. The Committee considers that this implies that trade unions and their associations should be able to decide which internal bodies they wish to establish, and the composition thereof, in accordance with its by-laws and the democratic decisions of its membership. The Committee expects the Government to take the necessary measures, in consultation with the social partners, to remove these draft provisions so as to ensure that workers’ organizations are able to organize their administration without Government interference.
4. 577. The Committee further notes that the complainants question the proposed deletion of paragraph 9 from section 247 of the Labour Code, which currently allows trade unions to demand the dismissal of the head of an enterprise/institution if he or she violates the Law on Trade Unions, labour legislation, collective labour agreement or evades participation in collective bargaining and similar provisions from the Law on Trade Unions (sections 33 and 38(9)). Noting that section 46 of the Law on Trade Unions, which provides that violation of trade union rights carries disciplinary, administrative or penal responsibility, would remain unchanged, the Committee considers that the deletion of the provisions in question would not be in violation of freedom of association.
5. 578. The Committee further considers that the deletion of paragraphs 13 and 14 of section 247 of the Labour Code as well as similar provisions of the Law on Trade Unions (section 38(13 and 14)), which currently provide for the right of trade unions to exercise control over the preparation of documents for pension and the provision of retirees and persons with disabilities who worked at the undertaking/institution with medical care, housing, vouchers to health and preventive care facilities and other social services and benefits in accordance with the rules of the undertaking/institution and collective agreement, would not be in violation of freedom of association and that these matters may also be regulated through negotiated collective agreements. The Committee considers that the right to inspect the operation of catering, healthcare, childcare facilities, dormitories, transport, etc. (section 248(4) of the Labour Code), the right to verify the payroll and state social insurance payments, and the use of funds for social and cultural events and housing construction (section 248(6) of the Labour Code), as well as the right to receive at least 0.3 per cent of the payroll fund for cultural, physical education and health improvement activities (section 250 of the Labour Code and section 44 of the Law on Trade Unions) are matters that could be regulated through a collective bargaining agreement.
6. 579. The Committee further observes that while the reference to the right to request information on working conditions, implementation of collective agreements and labour legislation from the enterprise owner or his or her authorized representative would be deleted, the right to receive such information is maintained (section 248(2) of the Labour Code)).
7. 580. The Committee notes that by virtue of the proposed amendment to section 249 of the Labour Code and the corresponding amendments to section 42 and removal of section 43 of the Law on Trade Unions, the list of certain obligations imposed on an owner of an enterprise to create conditions for trade union activities as provided for in a collective agreement (provision of premises, check-off facilities, transfer of buildings and premises intended for cultural, educational, health, sport and similar activities on contractual basis) would be removed and replaced with a general obligation to create such conditions for the operation of trade unions at the enterprise/institution as specified in a collective agreement. The Committee recalls that facilities to be afforded to workers’ representatives as referred to in Convention No. 135, ratified by Ukraine, may be given effect through national laws or regulations or collective agreements, or in any other manner consistent with national practice (Article 6) and considers that the proposed amendments do not appear to limit freedom of association.
8. 581. The Committee notes, in particular, that under the proposed amended sections 28 and 45 of the Law on Trade Unions and 251 of the Labour Code, trade unions would no longer have the right to request, free of charge, information on labour and socio-economic rights and interests of their members, as well as on the results of economic activity of the enterprise, and that sections 40 of the Law on Trade Unions and 251 of the Labour Code would no longer stipulate that trade unions, associations and trade union representatives may request from the employer information and relevant documents related to working conditions, implementation of collective bargaining agreements, compliance with labour legislation, and social and economic rights of workers. The Committee further notes that section 28 would no longer require the requested information to be provided within five days. While observing that the general obligation to provide information on the implementation of collective agreements is maintained, the Committee recalls that Recommendation No. 143, provides that the management of the undertaking should make available to workers’ representatives such material facilities and information as may be necessary for the exercise of their functions [see Compilation, para. 1581] requests the Government to take the necessary measures to amend the draft Law, in consultation with the social partners, so as to ensure that the legislation continues to allow trade unions to request information from the management of an undertaking which relate to issues that are necessary for them to carry out their functions.
9. 582. As concerns the guarantees for employees elected to trade union bodies, the Committee notes the proposed amendments to section 252 of the Labour Code and section 41 of the Law on Trade Unions and observes that while an obligation to obtain consent of an elected trade union body prior to amending their conditions of employment, including remuneration, as provided for in an employment contract, as well as for their dismissal is maintained, such consent will no longer be needed prior to taking disciplinary actions against trade union leaders. Furthermore, in case of a dismissal, while the need to obtain prior consent of the elected body is maintained, the existing requirement to obtain an additional consent of the highest elected body of the trade union (association of trade unions) would be deleted. The provision prohibiting dismissal of an employee who was elected to a trade union body for up to a year after the expiration of the term for which they were elected will also be deleted pursuant to the draft Law. The draft Law also proposes to delete a provision guaranteeing the same employment (or similar with the consent of the employee in question) upon the expiration of their trade union mandate. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Compilation, para. 1117]. The Committee considers that while the requirement to obtain a prior agreement of an elected trade union body, a moratorium on dismissal for a year after the expiration of a trade union mandate and the guarantee of the same employment are among the protective means that may be set forth by the legislation or a collective agreement, revoking these existing measures would appear to be a retreat in overall protection of trade union representatives. The Committee encourages the Government to engage with the social partners to review these measures with a view to ensuring that the legislative framework continues to provide effective protection against anti-union discrimination or other prejudicial measures due to their trade union membership or exercise of trade union activity.
10. 583. Regarding the amendment reducing the number of days of additional paid leave provided to employees elected to trade union bodies for trade union training from six to three (proposed amendments to section 252 of the Labour Code and corresponding section 41 of the Law on Trade Unions), the Committee underlines the need to strike a balance between two elements: (i) facilities in the undertaking should be such as to enable trade unions to carry out their functions promptly and efficiently; and (ii) the granting of such facilities should not impair the efficient operation of the undertaking [see Compilation, para. 1580]. Observing that by virtue of the same draft provision, section 252 of the Labour Code would also provide that the company may provide employees elected to trade union bodies with additional benefits at its expense pursuant to a collective agreement, the Committee considers that the proposed amendment does not appear to limit freedom of association.
11. 584. As concerns the amendments to the Law on Trade Unions set out in draft Law No. 2681, the Committee notes the following proposed amendments to section 1 of the Law on Trade Unions, which sets out the definition of the term “primary trade union” (an enterprise/institution level trade union). Firstly, the draft amendment deletes the reference to “those who study at the same education institution”, thereby excluding students from being trade union members, and not prohibiting trade unions in educational institutions, as argued by the complainants. The Committee recalls in this respect that the function of the ILO is to secure and promote the right of association of workers and employers [see para. 13 of the Special procedures for the examination in the International Labour Organization of complaints alleging violations of freedom of association], which implies that students, if they are not workers (e.g. teaching assistants) are outside of its sphere of competence. Secondly, the amended definition would set a minimum membership in such unions at ten. The Committee recalls in this respect that while a minimum membership requirement is not in itself incompatible with Convention No. 87, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered. What constitutes a reasonable number may vary according to the particular conditions in which a restriction is imposed [see Compilation, para. 441]. The Committee expresses its concern at the effect this amendment may have on workers of small and microenterprises who at present, are able to exercise the right to form primary trade unions at their place of work and requests the Government to review this amendment in consultation with the social partners so as to ensure that the workers may be able to continue to exercise their right to organize. Thirdly, the proposed amendment limits the number of primary trade unions at a given enterprise /institution to two. The Committee considers that workers should be free to choose the union which, in their opinion, will best promote their occupational interests without interference by the authorities. It may be to the advantage of workers to avoid a multiplicity of trade unions, but this choice should be made freely and voluntarily. By including the words organizations of their own choosing in Convention No. 87, the International Labour Conference recognized that individuals may choose between several workers’ or employers’ organizations for occupational, denominational or political reasons. The Committee therefore requests the Government to review this proposed amendment in consultation with the social partners.
12. 585. The Committee notes that by virtue of the proposed amendment to section 7 of the Law on Trade Unions, paragraph 5 of that section which stipulates that “trade union by-laws may provide for restriction on dual trade union membership” will be deleted and considers that this in itself does not violate trade union rights as there is nothing in the law that prohibits trade unions from setting out this restriction in their by-laws should they consider it necessary, thereby leaving it to the internal decision of the organizations concerned.
13. 586. The Committee also notes the amendments to section 11 of the Law on Trade Unions aimed at increasing to three the number of primary trade union organizations in the same administrative-territorial unit or amalgamated territorial community to obtain local status. While considering that the proposed minimum requirement is not so high as to hinder the establishment of local trade union organizations, the Committee notes the complainants’ indication that previously, such proposed requirement had been considered unconstitutional by the Constitutional Court of Ukraine.
14. 587. Regarding the proposed amendment to section 13 of the Law on Trade Unions aimed at withdrawing state assistance to trade unions in establishing business partnerships with employers and their associations and training of trade union personnel, the Committee notes that the complainants allege violation of Convention No. 111, which is outside this Committee’s mandate.
15. 588. The Committee further notes the proposed amendments to sections 14 and 15 of the Law on Trade Unions aimed at requiring trade union by-laws/statutes to set the amount of trade union membership fees and the procedure for their transfer. The Committee observes that the proposed amendment of section 249 of the Labour Code, examined above, implies that the procedure for transfer of trade unions dues shall be regulated by collective agreement and thus the amendments to sections 14 and 15 appear to be contrary to that intention. The Committee recalls in this respect that the deduction of trade union dues by employers and their transfer to trade unions is a matter which should be dealt with through collective bargaining between employers and all trade unions without legislative obstruction [see Compilation, para. 701]. Given the concerns raised by the complainants as to how this legislative obligation imposed on trade unions to set out in their by-laws for the exact amount of trade union dues might hinder their internal administration, the Committee requests the Government to review the proposed amendments in consultation with the social partners.
16. 589. Regarding the complainants’ allegation that the draft restricts trade union rights for managerial and supervisory staff, the Committee notes that the amended section 20 of the Law on Trade Unions states that if a trade union includes persons belonging to the management staff of an enterprise, institution, or organization, such trade union may not act as a representative of employees in collective bargaining. The Committee further notes that no definition of the term “management” is provided by the legislation in force. The Committee considers that such omission can allow for broad interpretation of that term and by virtue of the proposed amendment, deny collective bargaining rights to trade unions whose membership include staff that may be legitimately represented by them. It recalls in this respect that as regards provisions which prohibit supervisory employees from joining workers’ organizations, the Committee has taken the view that the expression supervisors should be limited to cover only those persons who genuinely represent the interests of employers [see Compilation, para. 382]. Furthermore, it is not necessarily incompatible with the requirements of Article 2 of Convention No. 87 to deny managerial or supervisory employees the right to belong to the same trade unions as other workers, on condition that two requirements are met: first, that such workers have the right to establish their own associations to defend their interests; and, second, that the categories of such staff are not defined so broadly as to weaken the organizations of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership [see Compilation, para. 381]. The Committee requests the Government to take the necessary measures in consultation with the social partners with a view to taking into account the above considerations.
17. 590. The Committee takes note of the complainants’ allegation that the proposed amendments to sections 21, 22, and 24 of the Law on Trade Unions hinder social dialogue and are aimed at destroying the trade union movement in Ukraine. The Committee notes that sections 21 and 22, as amended, would exclude the right of trade unions to draft laws and regulations related to labour, social and economic policies, and the right to participate in consideration of their proposals by various authorities as well as employers and their associations and the right to participate and hold appropriate consultations on issues pertaining to the attraction and use of foreign labour in the country. While noting that the right to submit proposals to those with the right of legislative initiative would remain, the Committee recalls that it has called the Government’s attention to the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113), which establishes that consultations “should aim, in particular, at joint consideration of matters of mutual concern with a view to arriving, to the fullest possible extent, at agreed solutions” and includes among the matters for consultation “the preparation and implementation of laws and regulations affecting their interests”. The Committee has also highlighted the importance for harmonious labour relations of full and frank consultations on matters affecting the workers’ occupational interests [see Compilation, paras 1517 and 1519]. The Committee expects that full consultation with the social partners will take place with a view to ensuring respect for the above considerations.
18. 591. The Committee considers that the issue raised by the complainant with regard to the proposed amendment to section 24 of the Law on Trade Unions which would exclude trade unions and their associations, as representatives of insured persons, from joining supervisory boards of compulsory State Social Insurance Funds, while maintaining their right to be elected to the boards of such funds, falls outside its competence.
19. 592. The Committee further notes that the amended section 36 of the Law on Trade Unions would impose on the elected trade union bodies an obligation to report regularly to the members of the trade union on the fulfilment of their obligations and to submit an extraordinary report on its activities at the request of at least two thirds of the members of its primary trade union. In the Committee’s view, at the outset, the purpose of the proposed amendment to guarantee the members’ right to participate democratically in the organization is in line with the principle of freedom of association, however, the thresholds for any such requests by trade union members should be left to the decision of the organization concerned and not set by legislation.
20. 593. Regarding the issue of trade union property, the Committee notes that the final provisions of the draft Law provide that the property of the trade unions and their association of the former USSR and Ukrainian SSR, which is situated in the territory of Ukraine and which was managed, owned and/or used thereby as of 24 August 1991, shall be State property. The Committee also notes the FPU allegation that two other draft Laws, Nos 6420 and 6421, stipulate that the property of public organizations, legal successors to all-union public organizations of the former USSR, including trade unions and their organizations, is to be confiscated. The Committee recalls its conclusions and recommendations in Case No. 3341 where it had noted the creation of a working group to discuss possible ways to regulate the issue and invited the Government to engage in consultations with the trade union organizations to find a mutually agreeable solution (see Report 392, October 2020, para. 966). The Committee will examine all issues relating to trade union property in the framework of that case.
21. 594. The Committee notes the Government’s general indication that draft Law No. 2681 needs to be further amended to ensure its conformity with the ratified ILO Conventions and that a working group has been established to that effect and began its work in September 2020. It further notes the Government’s indication that the Law on Trade Unions is not expected to be amended to restrict the rights enshrined in Conventions Nos 87 and 98. The Committee understands, however, that the version of the draft Law to be examined in Verkhovna Rada had no further amendments since the date it was submitted. The Committee recalls that the membership of a State in the International Labour Organization carries with it the obligation to respect in national legislation freedom of association principles and the Conventions which the State has freely ratified [see Compilation, para. 45]. The Committee urges the Government to engage with the social partners in respect of the draft legislation affecting their interests and rights (draft Law No. 2681) with a view to bringing the legislation into conformity with freedom of association prior to any further consideration by Verkhovna Rada. It requests the Government to provide information on all developments in this respect to the Committee of Experts on the Application of Conventions and Recommendations to which it refers the legislative aspects of the case. The Committee recalls that the Government may avail itself of technical assistance from the Office in this respect.
22. 595. The Committee further notes the FPU’s allegation that a novelty in law-making in Ukraine is the inclusion of anti-union provisions in laws which are unrelated to the activities of trade unions, referring as an example to the Law “On Amending Certain Legislative Acts of Ukraine concerning Improvement of Healthcare Management and Provision on Health Services to the Population”, which includes a provision pertaining to the employer’s obligation to report employees’ union membership to the authorities. While noting the FPU’s indication that the draft Law was adopted by the Rada on 15 December 2021 and signed into Law by the President on 6 January 2022, the Committee further observes the Government’s indication that the provision in question has been repealed by an amendment of the Law in April 2022.
23. 596. The Committee further notes the FPU’s allegations that it has received information on numerous instances of collection of data by the local authorities on trade unions operating in their subordinate institutions, establishments, and enterprises, as well as on the payment of union dues for the subsequent transmission to third parties. The Committee notes the Government’s indication to the effect that such collection and dissemination of information on trade union affiliation is contrary to the legislation. In light of the repeal of the above-mentioned legislative provisions which allowed for the collection of information on trade union membership, the Committee requests the Government to engage with the social partners to review if such instances continue to occur with a view to taking appropriate action in line with the national legislation which prohibits such acts.