2011 Annual Survey of violations of trade union rights - Ukraine
|Publisher||International Trade Union Confederation|
|Publication Date||8 June 2011|
|Cite as||International Trade Union Confederation, 2011 Annual Survey of violations of trade union rights - Ukraine, 8 June 2011, available at: http://www.refworld.org/docid/4ea661dbc.html [accessed 22 October 2016]|
|Disclaimer||This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Numerous violations took place throughout the year, with law enforcement bodies offering very little assistance. The Federation of Trade Unions of Ukraine also suffered judicial persecution. The right to strike is limited.
TRADE UNION RIGHTS IN LAW
A number of problems exist despite basic trade union rights being recognised. The right to join and form trade unions is guaranteed by the Constitution and the 1999 Act on Trade Unions, and the law provides for extensive penalties for violations of trade union rights. The law on collective agreements stipulates that not only trade unions, but also other representative bodies of workers may engage in collective bargaining.
The right to strike is recognised in the Constitution, but a strike can only be organised if two-thirds of the workers in the enterprise vote for it. Public servants may not strike, and the list of essential services where strikes are prohibited exceeds the ILO definition. Federations and confederations may not call a strike either. Finally, workers who strike in prohibited sectors may receive prison terms of up to three years.
The law "On Social Dialogue" was approved by Parliament on 23 December 2010 but was pending presidential approval at the end of the year. If enacted, the law will excessively limit trade union pluralism and create further obstacles to collective bargaining. A draft Labour Code was also scheduled for a vote in Parliament in 2010 but was delayed throughout the year.
TRADE UNION RIGHTS IN PRACTICE AND VIOLATIONS IN 2010
Background: Viktor Yanukovych was elected President of Ukraine after the second round of elections on 7 February 2010. On 18 November 2010 the Verkhovna Rada of Ukraine adopted the Tax Code, which led to protests that lasted from 22 November to 3 December. As a result of the protests, the President was forced to veto the Tax Code and send it back to the Parliament. Ukrainian GDP fell by 15% in 2010. The average salary is around EUR 210, but over 60% of the workers are paid less than this amount.
Labour laws disregarded: The Federation of Trade Unions of Ukraine (FPU) notes that trade union rights are repeatedly violated. FPU has recorded 76 unique cases in 59 companies where the management did not comply with the Law on Trade Unions. FPU has also witnessed a growing range of measures and sanctions imposed when trying to join or establish a union or when carrying out union activities.
The Confederation of Free Trade Unions of Ukraine (KVPU) also reports numerous cases of pressure against trade union members, elimination of trade unions, low efficiency when turning to the courts or law enforcement bodies for protection, and poor enforcement of court decisions. They additionally note that employers resist the establishment of new trade unions, ignore local trade unions, refuse to collect membership dues (use of check-off system).
Both FPU and KVPU suffer from anti-union discrimination, interference by the public authorities in their trade union activities, and from employers ignoring the right to organise and to bargain collectively.
Collective bargaining losing its effectiveness: Collective bargaining is getting increasingly complicated and less effective, one of the reasons being the deregulation of the collective bargaining process. Employers have also outright refused to bargain with trade unions, which was for example the case for Federation of Trade Unions of Ukraine (FPU) affiliates in Chuhuiv Plumbing Company in the Kharkiv region and in Coal and Chemical Laboratory PC in the Donetsk region as well as for Confederation of Free Trade Unions of Ukraine (KVPU) affiliates at Kyiv Metro, Epicenter-K, and Myronivsky breadstuff JSC.
Poor protection against anti-union discrimination: Although anti-union discrimination is prohibited in law, the legislation does not contain appropriate mechanisms to ensure protection. Employers use this to their advantage to harass and discriminate against trade union activists.
Labour inspector fines union leader instead of investigating violations: The trade union organisation "Dream of the Future", which is affiliated to the Confederation of Free Trade Unions of Ukraine (KVPU), has at Myronivsky breadstuff JSC been requesting the employer for two years to start collective bargaining and to re-conclude a collective agreement that has been invalid since the beginning of 2009. The employer has refused to negotiate and has not provided the union with any answers.
The union requested the State Labour Inspection in Kaniv city to check their case. The conclusion of the Labour Inspector was that the union "Dream of the Future" had violated the provisions of the collective agreement and the Chairman of the union was handed an administrative fine. This decision was subsequently cancelled by the Administrative Court of Kyiv city, but the employer's refusal to bargain collectively was not investigated. Mykhailo Volynets, KVPU Chairman, requested the State Department of Surveillance over Labour Legislation Observance, the Ministry of Labour and Social Policy of Ukraine as well as the General Prosecutor's Office of Ukraine to check the case, but there had been no positive results at the end of the year.
Criminal investigation initiated after peaceful protests against Draft Labour Code: From 21 October to 1 December 2010 activists and members of the Confederation of Free Trade Unions of Ukraine (KVPU) participated in a series of protests at the Independence Square in Kyiv against the adoption of the Draft Labour Code of Ukraine and the Draft Law on Social Dialogue. The protest actions coincided with protest actions by entrepreneurs and small businesses against the adoption of the Tax Code of Ukraine.
On 8 December 2010 the Independent Trade Union of Miners of Ukraine (NPGU), the KVPU's affiliate, received a letter from the Kyiv Department of the Ministry of Internal Affairs of Ukraine demanding that the union submit a list of its members who participated in the protest actions at the Independence Square from 21 October 2010 to 1 December 2010 as well as their personal data and other available and helpful information in order to conduct an urgent criminal investigation.
On 10 and 14 December 2010 Mr. Volynets, KVPU and NPGU Chairman and Member of the Ukrainian Parliament, and four other members of Parliament received through the Secretariat of the Parliament summons to appear as witnesses before the Unit of Investigations of Felonies and Grave Crimes of the Kyiv Investigation Department of the Ministry of Internal Affairs of Ukraine. The criminal case was opened under Art. 194 of the Criminal Code of Ukraine – Intentional destruction or damage of other people's property.
Anti-union discrimination widespread: Employers used various tactics to discriminate and harass trade union activists in 2010. Cases of anti-union discrimination included dismissals of trade union members without the consent of the trade union committee (e.g., at Aurum LLC in Odessa, Elsta LLC in the Dnipropetrovsk region in local unions affiliated to the Federation of Trade Unions of Ukraine (FPU), and at Azot in Severodonetsk in local unions affiliated to the Confederation of Free Trade Unions of Ukraine (KVPU)) as well as illegal dismissals and disciplinary sanctions imposed on local union activists and leaders (e.g., at the 63rd Boiler Welding Factory in the Ivano-Frankivsk region, Vasylkiv District Hospital in the Kyiv region, Elsta LLC in the Dnipropetrovsk region (FPU), Pushcha Voditsa in the Kyiv region, and at Imperial Tobacco Production of Ukraine (KVPU)).
Discrimination due to trade union activity, pressure to force people to leave the unions, and threats against members of local unions were also recorded during the year. This applied in particular to members of the local KVPU unions "Dream of the Future" at Myronivsky breadstuff, at Onyfrievka Central District Hospital of Kyiv, at the Central Processing Factory "Izvestiya" of the State Enterprise "Donbasantratsit", at Zaporizhya Cable Plant OJSC, as well as to members of the NPGU local union at Marganets Ore Processing Plant.
Judicial persecution of FPU: In different regions of Ukraine, such as Dnipropetrovsk, Donetsk, Zhytomyr, Kirovohrad, Luhansk, Mykolaiv, Poltava, Sumy, Kharkiv, Khmelnytskyi, Chernighiv and in Kyiv, individuals have been filing lawsuits against organisations affiliated to the Federation of Trade Unions of Ukraine (FPU) and against trade union leaders, seeking to reverse trade unions' decisions, suspend the leaders, and dissolve the organisations. The plaintiffs asked the courts to order the defendants to present internal trade union documents, such as minutes of meetings, certificates and seals. Many of the claims contained forged addresses, incorrect job titles of the plaintiffs and false references to the decisions of trade union bodies that allegedly violated the plaintiffs' rights.
The trade unions had to dedicate considerable time and energy to the legal proceedings, which interfered with normal trade union work. Although the judgements were delivered in the absence of plaintiffs, were backdated and were not subject to appeal, by the end of 2010 FPU had won 121 cases of the 125 filed against it.
After numerous appeals to the President of Ukraine, the Government, the General Prosecutor's Office, the Supreme Court, the Ministry of Justice and other state bodies, the FPU finally achieved a positive result. The Constitutional and Supreme Courts of Ukraine confirmed that courts do not have the authority to decide on trade union internal activities.
Trade union leaders and activists dismissed: In June 2010 Mr. Stanevych, Chairman of the Independent Trade Union of Workers of "Imperial Tobacco Production of Ukraine" affiliated to the Confederation of Free Trade Unions of Ukraine (KVPU), was handed two illegal disciplinary fines. The Labour Inspector considered that the financial sanctions on Mr. Stanevych violated Article 252 of the Labour Code. This finding was later appealed in court, which decided to overturn the Labour Inspector's decision. At the same time Mr. Stanevych's wife, who works in the same company, was threatened with dismissal if her husband did not stop his trade union activities.
At "Pushcha Voditsa" in the Kyiv region, where the wages are very low and often paid with a delay, two KVPU local union members were fired. While it was formally called a redundancy, the dismissals occurred after they had raised questions concerning the low wages. The union activists appealed to court, but the dismissals were found to be legal.
Mrs. Zoya Khyzhnyak, who is Chairwoman of the independent trade union "Justice" affiliated to KVPU and who had been illegally fired, was reinstated by a court on 29 March 2010 at Sumy State Customs Service of Ukraine. However, the decision was not implemented by the employer. In May 2010 the judgement was revoked by the court of appeal, and now the case is considered in cassation proceedings.
Hundreds of workers left unions under pressure: Members of the local trade union organisation "Octan" affiliated to the Confederation of Free Trade Unions of Ukraine (KVPU) at "Lynik" JSC have suffered from constant pressure and intimidation from their employer. As a result the membership decreased from 900 members in 2007 to 148 in 2010.
Management of "Nikopol ferroalloy's plant" JSC intimidated and put pressure on members of the local organisation of the Independent Trade Union of Miners of Ukraine (NPGU) to force the workers to leave the union. Employees were called to the management office a few times per shift and were threatened with dismissal and failure to pass the workplace exams, the result of which would also be dismissal or demotion. As a consequence the number of members decreased from 200 to 10 during November-December 2010.
Companies withhold union dues: As in previous years, in 2010 employers across Ukraine tampered with the union dues of the Federation of Trade Unions of Ukraine (FPU) and of the Confederation of Free Trade Unions of Ukraine (KVPU). Companies like Leninska Kuznia' LLC in Kyiv, 61 Communards Shipbuilding Plant PC in Mykolaiv region, Karlovskiy Machine Building Plant' LLC in Poltava region, Pivdenna-Holding' LLC in the Autonomous Republic of Crimea, Shostka Public Factory in Sumy region, 'Perspektyva' LLC in Dnipropetrovsk withdrew trade union dues from the union members' salaries but failed to transfer the money to the trade unions' accounts, using the money for the companies' own needs instead. Ukrspetsvagon in the Poltava region, Promin' and Mar'janovka in the Donetsk region also refused to transfer trade union dues to the unions' accounts.
Attempts by state departments to repress the "Our Land" union: In November, the City Education Department of Nova Kahovka city made an attempt to deprive the local union of the National Trade Union of Workers of State Committee for Land Resources of Ukraine "Our Land" ("Our Land") affiliated to the Confederation of Free Trade Unions of Ukraine (KVPU) of their office, which the union had used since 2006. Another union, which had its office in the same building, did not face any difficulties with their premises.
On 16 October 2010 the Second Congress of the "Our Land" union was organised. The day before the Congress some delegates informed the Organising Committee that the management of the Departments of State Committee for Land Resources of Ukraine in the regions, referring to an order by the Head of State Land Management Committee, prohibited them from participating in the Congress and demanded that they come to work on October 16, which was a weekend.
On 4 November 2010 a meeting of the local union "Our Land" in the Chernigov region was organised following an order by the Head of Land Resources Committee, Mr. I. Lysenko. The leadership of the union was not informed about the meeting, but union members were forced to participate. During the meeting the workers were forced to leave the said union and join a union controlled by the management.