Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Ukraine (Ratification: 1956)

Article 2 of the Convention. The Committee recalls that it had previously requested the Government to take the necessary measures to ensure the right of judges to establish organizations of their own choosing to further and defend the interests of their members. The Committee notes that in its report, the Government explains that by virtue of article 127 of the Constitution, professional judges cannot be members of trade unions. The Government indicates, however, that by Presidential Decree No. 328/2012 dated 17 May 2012, a special body, Constitutional Assembly, has been established with a specific mandate to prepare draft amendments to the Constitution. In order to ensure the right of judges to establish their organizations, the Ministry of Social Policy addressed the Constitutional Assembly with a request to examine the possibility of amending relevant articles of the Constitution. The Committee hopes that the Government’s next report will contain information on the developments in this regard.

The Committee further recalls that it had previously requested the Government to amend section 87 of the Civil Code (2003), according to which, an organization acquires its rights of legal personality from the moment of its registration, so as to eliminate the contradiction with section 16 of the Trade Unions Act, as amended in June 2003, providing that a trade union acquires the rights of a legal person from the moment of the approval of its statute and that a legalizing authority confirms the status of a trade union and no longer has a discretionary power to refuse to legalize a trade union. The Committee notes the Government’s indication that the Ministry of Social Policy has requested the Ministry of Justice to examine this issue pursuant to the Committee’s request. The Committee hopes that the necessary amendments to the legislation will be adopted in the near future and that the Government’s next report will contain information on the developments in this regard.

Article 3. The Committee recalls that it had requested the Government to take the necessary measures to repeal section 31 of the Law on employers’ organizations, which provided that the bodies of the State authority shall exercise control over economic activities of employers’ organizations and their associations. The Committee notes with satisfaction the adoption on 22 June 2012 of the Law on employers’ organizations and their associations and the Government’s indication that this legislation no longer contains provision to that effect.

With regard to the Committee’s previous request to take the necessary measures to amend section 19 of the Act on the procedure for settlement of collective labour disputes, which provides that a decision to call a strike has to be supported by a majority of the workers or two-thirds of the delegates of a conference, the Committee welcomes the Government’s indication that the draft Labour Code would lower this requirement so as to set it at the majority of workers (delegates) present at the meeting (conference). The Committee notes however, that according to the Government, the draft Labour Code would also provide that an employer is to be invited to the conference. The Committee considers that provisions allowing employers to be present at the meeting when the questions of strike are decided constitute a serious impediment to the exercise of the right to strike. It requests the Government to take the necessary measures to ensure that the adopted Labour Code does not contain provisions to that effect. The Committee expresses the hope that the Labour Code will be adopted in the near future and that it will take into account the Committee’s comments. It encourages the Government to continue its cooperation with the Office in this respect. It requests the Government to provide information on all progress made with regard to the adoption of the Labour Code.

The Committee had previously requested the Government to indicate categories of public servants whose right to strike is restricted or prohibited. The Committee notes that the Government reiterates that public servants are prohibited from exercising the right to strike and that a new legislation on Public Service, which will enter into force on 1 January 2013, contains provisions to the same effect. Recalling that states may restrict or prohibit the right to strike in the public service, only for public servants exercising authority in the name of the State, the Committee once again requests the Government to list specific categories of public servants whose right to strike is restricted or prohibited and to provide a copy of the new legislation.

With regard to its previous request to provide information on the practical application of section 293 of the Criminal Code, according to which, organized group actions that seriously disturb public order, or significantly disrupt operations of public transport, any enterprise, institution or organization and active participation therein, are punishable by a fine of up to 50 monthly minimum wages or imprisonment for a term of up to six months and, in particular, in respect of an industrial action, the Committee notes the Government’s indication that the Ministry of Social Policy has requested the Ministry of Justice to provide this information. Once this information is provided, it will be forwarded to the Committee. The Committee expresses the hope that the Government’s next report will contain detailed information on the application of section 293 of the Criminal Code in practice.