2008 Annual Survey of violations of trade union rights - Ukraine
|Publisher||International Trade Union Confederation|
|Publication Date||20 November 2008|
|Cite as||International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - Ukraine, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca6632.html [accessed 14 February 2016]|
ILO Core Conventions Ratified: 29 – 87 – 98 – 100 – 105 – 111 – 138 – 182
Legislation incompatible with international standards remains in place. Interference intensified both on behalf of the employers and the authorities. Several anti-union discrimination were reported throughout the year. Although the government has made an effort to resolve some past violations, further cases of harassment, intimidation and even physical assault of trade union activists were reported.
Trade union rights in law
Compulsory registration: The right to join and form trade unions is guaranteed by the constitution. The principal law governing trade union rights is the 1999 Act on Trade Unions, their Rights and Guarantees of their Activities.
The Civil Code and the law on the state registration of legal entities and natural persons-entrepreneurs, stipulate that trade unions can only acquire legal identity after they have been registered by the State, a restriction unacceptable by international labour standards. The registration procedure is extremely cumbersome and involves paying court fees. An amendment that would remove the requirement for compulsory registration was rejected by Parliament in October 2005.
The government has been taking steps to bring its legislation into line with ILO standards. The Cabinet also gave instructions to the central executive authorities to issue systematic recommendations to their local offices to ensure that the law was applied in conformity with ILO standards. Although the respective amendments should have come into force in October 2006, trade unions report that in practice trade union registration became even more complicated.
In April the Labour and Social Policy Committee of Ukrainian parliament organised a special sitting on the ILO Convention 87 and observance of trade unions' and employers' rights. The Committee recommended that a number of measures should be taken by public authorities to redress the existing violations and to prevent them in the future, but none of these recommendations was implemented so far.
Collective bargaining: The Law on Collective Bargaining guarantees this right. Problems concerning wages and working conditions are supposed to be resolved by joint worker-management committees. Registered unions with national status may participate in the national collective bargaining agreement. However, according to the Model Statutes and Internal Rules for public limited companies, issued by the State Committee on Equities and Stock Market in April 2004, it is Works' Councils, not trade unions, that have the mandate for collective bargaining. Yet Ukrainian legislation does not envisage the creation of Works' Councils at the workplace. Trade unions have asked the Committee to withdraw this provision, but the Committee had still not done so.
Anti-union discrimination: Anti-union discrimination is prohibited under the law. The Criminal Code stipulates penalties for the violation of trade union rights, including fines, the loss of the right to occupy certain positions or engage in certain activities and, in some cases, even imprisonment. However, no employer has been held liable under these provisions, even when courts have recognised cases of discrimination against trade union members.
Right to strike limited: The right to strike is recognised in the constitution, provided it is to "defend economic and social interests." A strike can only be organised if two thirds of the workers of the enterprise vote for it, which is excessive by international standards. The list of essential services, where strikes are prohibited, exceeds the ILO definition. Public servants may not strike, nor may members of the judiciary, armed forces, security services or law enforcement agencies. Workers who strike in prohibited sectors may receive prison terms of up to three years. Federations and confederations cannot call a strike.
Trade unions want to introduce the notion of a "warning strike" of a limited duration that could be organised according to a simplified procedure. The government does not agree to proposals to allow the unions to organise solidarity strikes.
Trade union rights in practice and Violations in 2007
Background: Political tensions intensified, with large-scale rallies held by both the president's and prime minister's "sides". In April the president dissolved the parliament with elections to be taken in September. No clear leader emerged, but the pro-western parties were able to form a coalition. In December Yulia Timoshenko was appointed prime-minister. The country's human rights record remains a concern, with problems with police, judiciary, discrimination and child labour quoted the most often. Wage arrears decreased in the run-up to September elections, but still stand at 802,5 million hrivna (112 million euros)
Interference: Different instances of state interference in trade union affairs were reported in the earlier editions of this Survey. This year, trade union assets gained the interest of criminal structures, which did not shy away from using the administrative resource or direct intervention into internal trade union matters.
The law of 22 February 2007 "On the Moratorium on transfer of assets in the possession of the Federation of Trade Unions of Ukraine" limits the rights to dispose of assets owned by the ITUC-affiliated Federation of Trade Unions (FPU) either directly or indirectly, which means that nothing can be rented out or sold. A special commission of inquiry into alleged mismanagement was created, but not once it could make any decisions due to the absence of quorum. In the meantime the State Property Fund initiated its own inquiry.
Meanwhile FPU's organisations in Lviv (Western Ukraine) have been subject to authorities' special attention. The Lviv militia demanded the local housing utilities to provide militia with information and materials on trade union activities in these utilities. The chairman of Lviv city trade union organisation was told to provide information on lawfulness of receiving and using trade union membership fees. Lviv enterprises such as Lvovteploenergo (electricity) attempted to audit the local trade union organisation. In Khmelnitski the city branch of the Department of Interior Affairs sent an inquiry to the FPU regional organisation, asking to submit information on revenues since 01 October 2006, financial reports and documents on salaries to those employed by the trade union.
Pressure and Discrimination: Union members are often subject to pressure and discrimination. This includes dismissals, transfers, demotions and deteriorating trade unionists' working conditions.
In Chernihiv, the housing and utilities department of the city council forced workers to leave their trade union and to join the one controlled by the employer. In Nikolayev, the management of the lubricating and filtering equipment plant prohibited workers from joining trade unions altogether. In August, the human resource director of "Laktalis-Nikolayev" company interfered with the staff assembly and demanded workers to leave the local organisation of the Agricultural Industry Trade Union, threatening them with dismissals and enticing with promises of higher wages. At the time of writing, however, the situation considerably improved. In Cherkassy, the management of Newton Trade shop threatened the members of the trade unions of workers employed and self-employed in commerce, catering and service with dismissals. This was one of the rare cases when the trade unions managed to get help from the prosecutor's office and labour inspectorate, but by the time the investigation was completed all trade union members in the company resigned, and the local trade union organisation was dissolved. Trade unionists were dismissed in Kherson oblast (Bilogorsk settlement council); at the "Lukom-A-Ukraina agency" in Iwano-Frankowsk oblast, at the communal enterprise of construction and repair works in Lviv, and the higher college of service and tourims in Ternopol. In the latter, the employer also pressured workers to form a new trade union under the employer's control).
The Ukrainian ITUC affiliates recognise that some of the incidents of trade union discrimination have been effectively addressed by the courts. The government has been making efforts to resolve the outstanding complaints reported to the ILO Committee on Freedom of Association.
Collective bargaining: The general lack of good faith bargaining has created industrial strife. Quite a few employers' organisations signed the National General Agreement just to be seen to be doing the right thing, but avoid sectoral collective bargaining. Employers often refuse to enter into collective bargaining with trade unions. According to the ITUC-affiliated Confederation of Free Trade Unions (KVPU), even a court order is not sufficient to convince the employer to enter into negotiations with a trade union. This year, the problems surpassed the company level: the Ministry of Emergencies and Protection of Population against the consequences of Chernobyl disaster have been ignoring the Nuclear Power Industry Workers Union's attempt to engage in collective bargaining. The Ministry of Education refused to involve the Free Trade Union of Education and Science (affiliated to the KVPU) in sector-level collective bargaining, which also means that this union had no right to monitor the employers' compliance with the existing collective agreement.
Employers, employers' organisations as well as central and municipal authorities often refuse to give trade unions information on issues concerning their members' interests, including the company's economic performance, regardless of trade unions' legal right to access such information. This happens in both the public and private sectors, FPU reports cases in mining, metal and machinemaking industry as well as in the Dniprovsky district state administration of Kiyv.
Denial of access to work places and facilities: Denying trade unionists access to their members' workplaces, failure to provide facilities for trade union work, including the check-off facilities, were all widespread throughout the year. In September, after refusing to include the trade union into investigating a tragic accident at work, Kremenchug steel-casting plant kept the representative of Mashmetal organisation off the plant for the whole week. The union complained to the prosecutor's office, but on 6 November the Kremenchug town prosecutor replied that no law was violated.
The management of the HBK company in the city of Kherson prohibited the female representative of the local trade union from entering the company premises, which also meant that she could not access her own workplace. When she finally met with the deputy-head of the HBK executive board on economic and information security, whose order prevented her access to work, he told her that the company did not need trade unions. HBK also owes the union over 187 thousand UAH (around 27 thousand euros) in check-off trade union membership fees used by the management for the company's needs. Transfer of membership fees is a problem in agriculture, where some companies fail to transfer membership fees and others fail to deduct them. Some, notably Stromi Holding in the town of Khmelnitsky, refuse the check-off facilities altogether.