Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2014, 1 September 2015 and 1 September 2016, as well as the observations of the Federation of Trade Unions of Ukraine received on 1 September 2015 and the Government’s replies thereon. It further notes the observations of the International Organisation of Employers (IOE) received on 1 September and 27 November 2013, and 1 September 2015, which are of a general nature. The Committee also notes the observations of the Federation of Employers of Ukraine (FEU) received on 1 September 2015 and the Government’s reply thereon.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. 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 the Government’s indication that by virtue of article 127 of the Constitution, professional judges cannot be members of trade unions. To remedy this situation and to ensure judges’ right to organize, the Ministry of Social Policy addressed the President of the country on 17 November 2014, as well as the Verkhovna Rada on 15 June 2015, with a request to take into account the observations of the Committee and lift the constitutional restriction. The Committee notes that according to the Government, the Presidential Administration sent a corresponding proposal to the members of the working group on justice and related institutions of the Constitutional Commission for consideration. The Committee requests the Government to provide information on the developments in this regard.

Right to establish organizations without previous authorization. The Committee further recalls that it had previously requested the Government to amend section 87 of the Civil Code, 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 Law on Trade Unions 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 that according to the Government, in view of the clear wording of section 16 of the Law on Trade Unions, and taking into account the fact that a registering authority cannot deny registration to a trade union, registration is not the legal act upon which a trade union acquires active legal capacity; rather the adoption of a trade union’s by-laws is considered to be such legal act. The Committee further notes the entry into force of the Law on the state registration of legal entities, individual entrepreneurs and public formations (2016). Pursuant to its section 3(2), particular arrangements for the state registration can be provided by other laws. The Government indicates that this is the case for trade unions, which are registered pursuant to section 16 of the Law on Trade Unions.

Article 3. Right to organize activities and formulate their programmes in full freedom. With regard to the Committee’s previous request to take the necessary measures to amend section 19 of the Law 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 welcomed 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 the Government’s indication that the latest version of the draft Labour Code does not contain provisions dealing with the manner in which the decisions to declare a strike are taken, and strikes are carried out. While expressing the hope that the Labour Code will be adopted in the near future and encouraging the Government to continue its cooperation with the Office in this respect, the Committee requests the Government to clarify which legal provision will govern the exercise of the right to strike once the Labour Code is adopted.

The Committee had previously requested the Government to list specific categories of public servants whose right to strike is restricted or prohibited. The Committee notes the entry into force of the new Law on Civil Service. The Committee understands that pursuant to section 6(2) of the Law, there are three categories of civil servants; that categories A and B appear to be civil servants who exercise authority in the name of the State, whereas category V comprises “all other civil servants”; and that pursuant to section 10(5) of the Law, civil servants are prohibited from exercising the right to strike. Recalling that the right to strike in the public service may be restricted or even prohibited only for public servants exercising authority in the name of the State, the Committee requests the Government to provide concrete examples of public servants falling into category V.

The Committee notes the general information provided by the Government on the 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. The Committee requests the Government to provide further information in this respect and in particular on the practical application of this section in respect of industrial actions.