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Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Ukraine (RATIFICATION: 1956)

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The Committee notes the observations of the Confederation of Free Trade Unions of Ukraine (KVPU), received on 31 August 2023, referring to the matters addressed below.

In its previous comments, the Committee had noted the allegation of the Federation of Trade Unions of Ukraine (FPU) and the KVPU that Law No. 2434-IX on Amendments to Some Legislative Acts Regarding Simplification of Regulation of Labour Relations in the Sphere of Small and Medium-Sized Enterprises and Reduction of Administrative Burden on Businesses, which amended the Labour Code, infringed the right to collective bargaining by providing that the employment contract was the main tool for regulating labour relations in enterprises with less than 250 employees. The Committee had noted the Government’s indication that it was working on a draft Law on Labour which did not contain the provisions set out in Law No. 2434-IX and requested the Government to ensure that the reform fully complied with the Convention. The Committee notes that the Government indicates that: (i) the adoption of the comprehensive draft Law on Labour will allow Ukraine to abandon the Soviet legislative legacy in the field of employment and labour relations, and introduce internationally recognized principles and standards for regulating labour relations; (ii) the draft Law does not provide for any restrictions on the right to organize, and a copy was sent to the Office in October 2022; and (iii) the Ministry of Economy is currently conducting extensive consultations with the social partners and hearings with experts with a view to finalizing the draft Law. The Committee further notes that the KVPU, in its 2023 observations, reiterates its concerns regarding Law No. 2434-IX, and states that the draft Law on Labour aims to deregulate labour relations.

The Committee observes that the Committee on Freedom of Association (CFA), when it examined Case No. 3390 (403rd Report of the CFA, June 2023, paragraphs 534–597), welcomed the Government’s engagement with the Office with respect of the draft Law on Labour, which intends to replace the current Labour Code. The Committee also observes that the draft Law on Labour does not regulate collective labour relations and notes in this respect that Law No. 2937-IX on Collective Agreements and Contracts was adopted by Parliament on 23 February 2023. The Committee notes that, according to the Government, Law No. 2937-IX: (i) was developed by the National Tripartite Socio-Economic Council; (ii) defines the mechanism for concluding a collective agreement; (iii) provides protection against discrimination and anti-union interference; and (iv) will enter into force six months after the termination of martial law. Taking note of the above, the Committee will examine the conformity of Law No. 2937-IX with the Convention once the translation thereof becomes available. The Committee understands, therefore, that pending the adoption of the Law on Labour and the entry into force of the Law on Collective Agreements and Contracts, section 49 of the Labour Code, which was added by Law No. 2434-IX and allows individual contracts to prevail over collective agreements in enterprises employing less than 250 persons, remains in force with the effect of undermining the rights of workers in such enterprises. In this regard, the Committee recalls that the Convention covers all workers and employers, and their respective organizations, in both the private and the public sectors, regardless of the size of the enterprises or institutions. It further recalls that the obligation to promote collective bargaining set out in Article 4 of the Convention requires that the individual negotiation of the terms of the contract of employment cannot derogate from the rights and guarantees provided in the applicable collective agreements, on the understanding that contracts of employment can always set out more favourable terms and conditions of work and employment. The Committee recalls that this principle is explicitly set out in Paragraph 3 of the Collective Agreements Recommendation, 1951 (No. 91). In light of the above, the Committee requests the Government to take the necessary measures to amend this provision so as to ensure that a negotiation with individual workers is not detrimental to collective negotiation with trade union organizations. It requests the Government to provide information on all measures taken to that end.The Committee hopes that the draft Law on Labour will be finalized in the near future, in consultation with the social partners and with the technical assistance of the Office and will give full effect to the Convention. The Committee requests the Government to provide information on any developments in this regard and to transmit a copy of the Law once adopted.

The Committee had further noted the allegation of the FPU and the KVPU that Law No. 2136-IX on Organisation of Labour Relations Under Martial Law suspended certain collective agreement provisions for the period of martial law. The Committee notes that the Government indicates that article 64 of the Constitution provides that in conditions of war or state of emergency, separate restrictions on rights and freedoms may be established. The Government adds that the final provisions of Law No. 2136-IX specify that the Law loses its validity from the date of termination of martial law, except for its provisions which relate to the compensation of employees and employers for monetary sums lost as a result of the armed aggression against Ukraine. The Committee further notes that the KVPU, in its 2023 observations, alleges that Law No. 2136-IX was adopted without any consultation of the social partners, and, consequently, contains a number of provisions which restrict the rights of workers and are not fully justified by the conditions of martial law. While recognizing the extremely difficult situation in the country and the necessity to adopt urgent measures to mitigate the resulting economic and social effects, the Committee emphasizes that the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205) underlines the importance of social dialogue in general and collective bargaining in particular in responding to crisis situations by encouraging the active participation of employers’ and workers’ organizations in planning, implementing and monitoring measures for recovery and resilience. The Committee encourages the Government to review Law No. 2136-IX in full consultation with the most representative employers’ and workers’ organizations with a view to limiting the impact and the duration of the above-mentioned measures. The Committee requests the Government to provide information on any developments in this regard. The Committee also reminds the Government that it may avail itself of ILO technical assistance if it so wishes.

The Committee had also noted the allegation of the FPU and the KVPU that draft Law No. 2682 on Strikes and Lockouts proposed to exclude the collective labour disputes procedure from the legislation so as to resolve all disputed issues via the strike procedure. The Committee notes the Government’s indication that draft Law No. 2682 was submitted by the people’s deputies of Ukraine as a legislative initiative but has not been considered by Parliament so far. The Committee further notes that the KVPU, in its 2023 observations, reiterates its concerns with respect to draft Law No. 2682, and states that it remains pending for consideration and that the above-mentioned change would violate the Convention. The Committee requests the Government to take the necessary measures to engage with the social partners with a view to ensuring that any draft legislative reform considered for adoption by Parliament is in full conformity with the Convention.

The Committee had also requested the Government to provide its comments on allegations of violations of the Convention in practice, including acts of anti-union union discrimination and interference, submitted by the KVPU in its 2017 and 2018 observations, the International Trade Union Confederation (ITUC) in its 2018 observations, and the FPU in its 2018 observations. Noting that the Government has not responded to these allegations, the Committee once again requests it to provide its comments thereon.

Article 4 of the Convention. Promotion of collective bargaining in practice. The Committee notes the Government’s indication that, as of 31 December 2021, 43,154 collective agreements covering 5,064,400 workers (70.2 per cent of the registered number of full-time employees) had been concluded and registered across Ukraine. The Government adds that 95 sectoral and two inter-sectoral agreements, as well as 26 territorial agreements, have been concluded at the regional level. The Committee requests the Government to continue to provide information on signed collective agreements and the number of workers covered by such agreements, and to specify the sectors concerned.