2010 Annual Survey of violations of trade union rights - Ukraine
|Publisher||International Trade Union Confederation|
|Publication Date||9 June 2010|
|Cite as||International Trade Union Confederation, 2010 Annual Survey of violations of trade union rights - Ukraine, 9 June 2010, available at: http://www.refworld.org/docid/4c4fec51c.html [accessed 4 May 2016]|
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 suffered judicial persecution. The right to strike is limited, and collective bargaining is not adequately secured.
Trade union rights in law
Numerous 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 violating trade union rights. While registered trade unions with national status may participate in the national collective bargaining agreement, the 2004 Model Statutes and Internal Rules for public limited companies stipulate that it is works' councils that have a mandate for collective bargaining. However, Ukrainian legislation does not provide for the establishment of such councils. 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.
Trade union rights in practice and violations in 2009
Background: Ukraine, being heavily dependent on its steel exports, has been particularly vulnerable to the effects of the global financial crisis: industries ground to a virtual halt and the national currency lost over 60% of its value. About 45,000 mining and metal workers were laid off during the year. Desperate for a cash lifeline, Ukraine was offered a USD 16.5 billion loan by the International Monetary Fund (IMF), but on stringent conditions. IMF pressured the Ukrainian authorities to cancel a wage and pensions increase bill, and then withheld the latest instalment of the loan until after the presidential elections in January 2010.
Laws disregarded: The Federation of Trade Unions of Ukraine (FPU) has recorded 43 unique cases in 32 companies where the management did not comply with the Law on Trade Unions, Their Rights and Guarantees of Activity. Violations range from failure to transfer special funds that the companies are obliged to allocate to trade unions, to withdrawal of check-off facilities, to interference with unions' internal matters and obstruction of the work of their representatives, to serious cases of trade union discrimination.
Members of the Confederation of Free Trade Unions of Ukraine (KVPU) have also suffered from anti-union harassment, and their employers often ignored the right to organise and bargain collectively. KVPU reports that turning to the courts or law enforcement bodies for protection is hardly ever effective, and sometimes the local authorities side with the employers against trade unions. However, there were also reports on unfairly dismissed trade unionists being reinstated, and KVPU has won over 20 different court cases over the last four years just against one company. Unfortunately court decisions are poorly enforced.
Judicial persecution of FPU: In different regions of Ukraine, most notably Dnipropetrovsk, Kirovohrad, and Mykolaiv, certain 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. A total of 106 complaints were lodged during the year.
All plaintiffs asked the courts to order the defendants to present internal trade union documents, such as minutes of meetings, certificates and seals, and to review the case without the defendants' participation. Most lawsuits, even those filed in different courts, were exactly the same, and most plaintiffs were not trade union members. 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.
Irregularities were noted in the initial stages of the court procedures. For example, on 3 February, the Leninskiy district court in Kirovohrad launched the proceedings of 11 lawsuits and conducted preliminary hearings on the same day, without sending the defendants copies of the lawsuits or the court order on the date of the main hearings. In June, the Zavodsky district court in Mykolaiv announced the initiation of proceedings of 12 lawsuits in a local newspaper instead of informing the defendants directly. Preliminary hearings were conducted in the judge's office, with all 36 parties to the lawsuits present at the same time. On 20 November, the Kirovsky district court in Dnipropetrovsk received 18 identical lawsuits from plaintiffs living in different regions, against different defendants. The judge scheduled the preliminary hearings on all cases for 24 November. FPU turned to the Supreme Court and other authorities for assistance.
Eventually, 104 of the cases were resolved in favour of FPU or its affiliates by 1 December. However, trade unions had to dedicate considerable time and energy to the legal proceedings, which interfered with normal trade union work. As the lawsuits were clearly a concerted action without a sound factual basis, trade unions are convinced that this was a campaign to undermine FPU and its affiliates.
Trade unions harassed: The Confederation of Free Trade Unions of Ukraine (KVPU) notes that employers are resistant to the establishment of new trade unions because they consider it a violation of the tradition of workers' obedience, deeply rooted in the communist era.
For example, workers at the agrarian complex Pushcha Vodytsa near Kyiv created an organisation affiliated to the All-Ukrainian trade union Defence of Justice, and it was officially registered before April. Since according to the law, minority unions do have certain rights, the union asked the management to provide a copy of the existing collective agreement and to organise check-off for trade union dues. The company director-general simply returned all the correspondence to the union, adding that the organisation simply did not exist. The employer maintained the same tactics throughout the attempts of the union to achieve recognition. Moreover, in July, the members of the new trade union committee were summoned to the district police branch and prosecutor's office to give explanations on the creation of the union. Pressure on the union members decreased following the intervention of the KVPU leadership, but in December, two representatives of the prosecutor's office visited Pushcha Vodytsa and asked many workers for written statements on whether they belonged to the Defence of Justice local organisation or not.
Another example is the KVPU-affiliated Octan trade union in the largest petrol producer in the country, CJSC "Linik". Management has been threatening union members with dismissal or wage cuts unless they resign from the union, or at least authorise the administration not to transfer their union dues. The company has also used manipulative tactics such as announcing the redundancy of 244 workers in July while in fact planning significantly fewer lay-offs. Of seven Octan members to be made redundant in October, four resigned from the union and remained employed while two others were dismissed.The union sought help from the police and prosecutor's offices, but to no avail. As a result, in just over a year union membership shrunk from 930 to 186.
Unions harassed by prosecutor's offices: On 26 August, the Federation of Trade Unions of Ukraine (FPU) received a copy of the General Prosecutor's Office's representation to the Supreme Court of Ukraine. The representation, lodged on behalf of the Ministry of Justice as a result of an investigation into FPU's compliance with the national constitution and laws, asked the court for compulsory dissolution of FPU. FPU immediately forwarded the document to its bodies and affiliates, and the FPU president requested the Prosecutor's Office to clarify the grounds for the representation. Some FPU affiliates also turned to various prosecutor's offices for an explanation, but the General Prosecutor's Office never confirmed sending the representation. However, different officers reportedly treated inquiring trade union leaders in a tactless and biased way and tried to manipulate the unionists into giving negative information on trade union activities.
Doubtful lay-offs at customs office: In November, Zoya Chyzhniak, head of the trade union "Spravedlivyst", was fired from the Sumy Regional Customs Office following an investigation that trade unions perceived as biased. The deputy-head of the union Ihor Nazarenko also lost his job in what appeared to be an artificially created lay-off situation. This happened after the union, which had already submitted numerous reports on violations of labour law, demanded that the authorities start a thorough disciplinary investigation against the head of the office.
The relations between the management and the union have been strained for years. The union has been fighting for the implementation of elementary occupational health and safety measures while its activists have been intimidated, humiliated and demoted. The local labour inspectorate as well as the Ministry of Labour and Social Policy were contacted for assistance, but they did not intervene.
Harassment of unionists widespread: The Federation of Trade Unions (FPU) reports that members of company trade union committees often suffer illegal dismissals, are given unjustified warnings and see their employment conditions changed for the worse. During the year, such incidents took place at the communal enterprise Lubnykhvodokanal, Motor transport enterprise No. 12327 in Zaporizhia, Afromash-IF LLC, MOU Boiler and Welding Plant No. 63 AU (Ivano-Frankivsk region), Dnipropress Plant PC (Dnipropetrovsk), Metal Constructions Plant PC (Kryvyi Rih), and Kherson Cotton Plant PC. The management of Metal Constructions Plant also forced workers to leave the union. There were reports of employers' interference with union activities in the Land Resource State Committee.
Union rights disregarded: At least 17 companies, many of them in the manufacturing sector, withdrew trade union dues from the members' salaries but failed to transfer the money to the trade unions' accounts, using it for the companies' own needs instead. Furthermore, Kherson Cotton Plant PC and Kharkiv Autogenous Plant PC did not allow elected trade union representatives to enter the company premises. NDPISiU LLC in Dnipropetrovsk also refused to provide the union with any company-related information, while the Oleksandria branch of Energovugillia (Dnipropetrovsk) refused to bargain collectively.