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

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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

The Committee also notes that the Committee on Freedom of Association (CFA) referred to it the legislative aspects of Case No. 3390 (see 403rd report, June 2023, paragraph 594). These matters are discussed below.

In its previous comments, the Committee had noted the allegation of the International Trade Union Confederation (ITUC) that draft Law No. 6420 on the Legal Regime of Property of All-Union Public Associations (Organizations) of the Former USSR and draft Law No. 6421 on Moratorium on Alienation of Property of All-Union Public Associations (Organizations) of the Former USSR were presented to Parliament unilaterally, and requested the Government to review these draft laws in full consultation with the most representative workers’ organizations with a view to finding a mutually agreeable solution. The Committee notes that the Government indicates that draft Law No. 6420 was repeatedly sent for approval to joint representative bodies of trade unions and employers at the national level, and that the relevant interested parties were also invited to a coordination meeting. It further notes the Government’s indication that both Laws were adopted through resolutions dated 4 November 2022. The Government explains that the new legislation will contribute to the establishment of a legal basis for the determination of ownership rights to the relevant property. Noting that the Government does not specify whether the approval of the most representative workers’ organizations was obtained with respect to draft Law No. 6420, nor does it inform of any consultation regarding draft Law No. 6421, the Committee emphasizes the importance that should be attached to full and frank consultations taking place on any questions or proposed legislation affecting trade union rights. The Committee requests the Government to indicate whether a mutually agreeable solution was reached with the most representative workers’ organizations prior to the adoption of the above-mentioned laws.

The Committee had also noted the allegation of the Federation of Trade Unions of Ukraine (FPU) and the KVPU that Law No. 2136-IX on Organization of Labour Relations Under Martial Law was adopted without prior consultation and restricted the exercise of the right to organize. The Committee notes the Government’s indication 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 also points out 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 relating 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 a number of provisions of Law No. 2136-IX restrict the rights of workers and are not fully justified by the conditions of martial law. In this regard, the Committee recalls that the Convention contains no provisions allowing the invocation of a state of emergency to justify exemption from the obligations arising under it or any suspension of their application. This is also and especially true for restrictions on civil liberties that are essential to the proper exercise of trade union rights, except in circumstances of extreme gravity and on condition that any measures affecting the application of the Convention are limited in scope and duration to what is strictly necessary to deal with the situation in question. The Committee expects that provisions of Law No. 2136-IX imposing restrictions on the exercise of the right to organize are limited to what is strictly necessary and will cease to apply once the martial law regime is lifted.

The Committee had previously noted with concern the allegations of the FPU and the KVPU that the draft Law on Labour; draft Law No. 2332 on Amendments to Certain Legislative Acts Concerning the Procedure for Determining the Representativeness of Trade Union and Employer Organizations in Social Dialogue Bodies; draft Law No. 2682 on Strikes and Lockouts; draft Law No. 2681 on Amendments to Certain Legislative Acts of Ukraine (on Some Matters of the Trade Unions Activity) and, draft Law No. 7025 on Self-Regulatory Organizations, were introduced in Parliament without prior consultation and, if adopted, would violate the Convention by imposing state control over trade unions and by restricting their right to organize their administration and activities. As regards these draft laws, the Committee notes that the Government indicates that they were submitted by the people’s deputies of Ukraine as legislative initiatives, but so far have not been considered by Parliament. The Committee further notes that the KVPU, in its 2023 observations, reiterates its concerns with respect to draft laws Nos 2332, 2682 and 2681.

The Committee notes that the CFA examined draft Law No. 2681, which intends to amend the Labour Code and the Law on Trade Unions and requested the Government to engage with the social partners with a view to bringing it into conformity with freedom of association (see Case No. 3390, Report No. 403, June 2023). As regards the application of the Convention, the Committee notes that the CFA requested the Government to:

• remove the proposed amendments to the Labour Code and the Law on Trade Unions providing for a mandatory establishment of monitoring commissions within trade union associations so as to ensure that workers’ organizations are able to organize their administration without Government interference;
• review the amended definition of the term “primary trade union”, which sets a minimum membership in such unions at ten, so as to ensure that the workers in small and microenterprises, who at present are able to exercise the right to form primary trade unions at their place of work, are able to continue to exercise their right to organize;
• review the amendment limiting the number of primary trade unions at a given enterprise/institution to two, so as to ensure that workers have the right to choose freely the union which, in their opinion, will best promote their occupational interests without interference by the authorities; and
• review the amendment imposing on the elected trade union bodies an obligation to report regularly to their trade union members on the fulfilment of their obligations and to submit an extraordinary report on its activities at the request of at least two thirds of the members of its primary trade union so as to ensure that the thresholds for any such requests by trade union members are left to the decision of the organization concerned and not set by legislation.

The Committee observes that subsequently to the draft Law No. 2681, the Ministry of Economy of Ukraine prepared a draft Law on Labour to give effect to the final and transitional provisions of the Law on the De-Sovietization of the Legislation of Ukraine on the need to replace the Labour Code of 1971. The Committee notes the Government engagement with the International Labour Office in this regard. The Committee observes that the draft Law on Labour, intended to replace the Labour Code as a whole, does not contain any of the amending provisions pertaining to the Labour Code set out by draft Law No. 2681. The Committee further notes the Government’s indication to the CFA that draft Law No. 2681 is not in conformity with the Convention. The Committee notes, however, that according to the information on the official portal of the Verkhovna Rada (the parliament), draft Law No. 2681, amending the Labour Code and the Law on Trade Unions, is still awaiting consideration and is included, by Resolution No. 3369-IX of 5 September 2023, in the agenda of the 10th session of the Rada.

The Committee notes the Government’s indication in its report that the draft Law on Labour does not restrict freedom of association and the right to organize and is in conformity with the Convention. The Government also informs that the Ministry of Economy is currently conducting extensive consultations with the social partners, as well as hearings with experts, with a view to finalizing the draft Law. Welcoming the Government’s engagement with the Office, the Committee requests the Government to provide information on developments in this regard and to transmit a copy of the Law once adopted.

Taking note of the above and of other draft legislation pending in Parliament, the Committee once again urges the Government to engage with the social partners with a view to ensuring that any draft legislation affecting their rights and interests is fully in line with the Convention before being considered for adoption by Parliament.

Article 2 of the Convention. Right of workers and employers, without distinction whatsoever, to establish and join organizations. The Committee had previously noted that article 127 of the Constitution prevented judges from being members of trade unions and had requested the Government to ensure the right of judges to establish organizations of their own choosing to further and defend their interests. The Committee notes the Government’s indication that, in accordance with article 157 of the Constitution, the Constitution cannot be modified under conditions of war or state of emergency. Taking due note of this information, the Committee trusts that the Government will take the necessary measures to amend article 127 of the Constitution with a view to bringing the legislation into conformity with the Convention once the state of emergency is no longer in force.

Article 3. Right to organize activities and formulate their programmes in full freedom. In its previous comments, the Committee had requested the Government to amend section 19 of the Law on the procedure for settlement of collective labour disputes so as to ensure that if the national legislation required a vote before a strike can be held, account was taken only of the votes cast and the majority was fixed at a reasonable level. The Committee welcomes the Government’s indication that a working group, which includes representatives of the social partners, is currently preparing a draft Law on Collective Labour Disputes and has taken the comments of the ILO into account in the drafting. The Committee requests the Government to specify the manner in which its comments have been reflected in the draft Law on Collective Labour Disputes, and whether section 19 of the Law on the procedure for settlement of collective labour disputes will be amended or repealed after the adoption of the new legislation. The Committee also requests the Government to provide a copy of the Law on Collective Labour Disputes once adopted.

In its previous comments, the Committee had requested the Government to clarify which categories of civil servants exercised authority in the name of the State and whether some or all civil servants were prohibited from exercising the right to strike, and to amend section 10(5) of the Law on Civil Service so as to ensure that the right to strike in the public service may be restricted or prohibited only for public servants exercising authority in the name of the State. The Committee notes that the Government indicates that the Law on Civil Service applies to public servants working in the Secretariat of the Cabinet of Ministers of Ukraine, the ministries and other central executive bodies, local state administrations, the prosecutor’s office, military administration bodies, and other state bodies, who are not allowed to strike according to section 10(5). The Government informs, however, that the issues regarding the right to strike for public servants should be settled in the draft Law on Collective Labour Disputes. Recalling once again that restrictions on the right to strike in the public sector should be limited to public servants exercising authority in the name of the State, the Committee requests the Government to ensure that this principle will be observed in the framework of the drafting of the Law on Collective Labour Disputes, and to provide information in this regard. The Committee also requests the Government to indicate whether section 10(5) of the Law on Civil Service will be amended or repealed following the adoption of the Law on Collective Labour Disputes.

The Committee had previously requested the Government to provide information on the practical application of section 293 of the Criminal Code, which provided that organized group actions that seriously disturb public order, or significantly disrupt operations of public transport, any enterprise, institution or organization and active participation therein, were punishable by a fine of up to 50 monthly minimum wages or imprisonment for a term of up to six months, in respect of industrial actions. The Committee notes with regret that the Government limits itself to: (i) indicating that following an amendment to section 293, the amount of the fine is now between 1,000 and 3,000 non-taxable minimum incomes; and (ii) providing general information about pretrial investigations into offences under that provision. The Committee reiterates its request that the Government provide information on the practical application of section 293 of the Criminal Code in respect of industrial actions.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the International Trade Union Confederation (ITUC), received on 1 September 2022, denouncing the introduction in Parliament of draft Law No. 6420 on the Legal Regime of Property of All-Union Public Associations (Organizations) of the Former USSR (dated December 2021) and Draft Law No. 6421 on Moratorium on Alienation of Property of All-Union Public Associations (Organizations) of the Former USSR. The ITUC considers the revival of the two draft pieces of legislation in a time of war to be opportunistic and contrary to the Government’s international commitments. The Committee notes the Government’s indication that the two draft laws were developed to establish the legal basis for determining the ownership of property which, as of 1991, was in the possession or use of all-union public organizations of the former USSR, with a view to returning such property to state ownership. The Committee notes that the Committee on Freedom of Association has been called upon to examine the issue of trade union property on two occasions, in Case No. 2890 and more recently, in Case No. 3341 where it had noted the creation of a working group to discuss possible ways to regulate the issue and invited the Government to engage in consultations with the trade union organizations to find a mutually agreeable solution (see Report No. 392, October 2020, para. 966). Noting the ITUC allegation that the two draft laws were presented unilaterally without meaningful consultations with trade unions, the Committee requests the Government to take necessary measures to review draft Laws Nos 6420 and 6421 in full consultation with the most representative workers’ organizations with a view to finding a mutually agreeable solution. The Committee requests the Government to inform it of all developments in this regard.

The Committee also notes the joint observations of the Federation of Trade Unions of Ukraine (FPU) and the Confederation of Free Trade Unions (KVPU), received on 6 October 2022, alleging that Law No. 2136-IX of 15 March 2022 on Organization of Labour Relations Under Martial Law was adopted without prior consultation with the social partners and that it restricts the exercise of the right to organize. While taking account of the exceptional nature of the legislation, the Committee trusts that the Law will be declared null and void once the state of emergency / martial law regime is lifted.

The Committee further notes that according to the FPU and the KVPU, the following draft laws were introduced in Parliament without prior consultation with the social partners: draft Law on Labour; draft Law No. 2332 of 29 October 2019 on Amendments to Certain Legislative Acts Concerning the Procedure for Determining the Representativeness of Trade Union and Employer Organizations in Social Dialogue Bodies; draft Law No. 2682 of 27 December 2019 on Strikes and Lockouts; draft Law No. 2681 of 27 December 2019 on Amendments to Certain Legislative Acts of Ukraine (on Some Matters of the Trade Unions Activity); and draft Law No. 7025 of 4 February 2022 on Self-Regulatory Organizations. According to the FPU and the KVPU, these laws, if adopted, would violate the Convention by (i) restricting the rights of workers to establish organizations of their choosing and without previous authorization, imposing state control over trade unions, and (ii) restricting the right of trade unions to organize their administration and activities and to formulate their programmes in general, and the right to strike in particular. The Committee notes the above allegations with concern and recalls that all States have the obligation to respect fully the commitments undertaken by ratification of ILO Conventions. The Committee notes the Government’s indication in reply to the ITUC above-mentioned observations that the Ministry of Economy is ready for a comprehensive dialogue which would facilitate a full understanding of the spirit and provisions of international labour legislation as well as their implementation in Ukraine. The Committee notes the Government’s communication received on 8 December 2022 containing comments on the FPU and the KVPU allegations. The Committee will examine the Government’s reply at its next session. The Committee urges the Government to engage with the social partners in respect of the draft legislation affecting their interests and rights with a view to bringing the legislation into conformity with the Convention prior to any further consideration by Parliament. The Committee recalls that the Government may avail itself of technical assistance from the Office in this respect.

The Committee notes the extremely difficult situation in the country since 24 February 2022. In the absence of a report from the Government on the application of the Convention, the Committee recalls that it had previously requested the Government:

• -to continue taking the necessary steps in order to ensure the right of judges to establish organizations of their own choosing to further and defend the interests of their members and to inform of all progress made in this regard;
• -to take the necessary measures to amend section 19 of the Law on the procedure for settlement of collective labour disputes so as to ensure that if the national legislation requires a vote before a strike can be held, account is taken only of the votes cast and the majority is fixed at a reasonable level;
• -to clarify which categories of civil servants exercise authority in the name of the State and whether some or all civil servants are prohibited from exercising the right to strike, and to amend section 10(5) of the Law on Civil Service so as to ensure that the right to strike in the public service may be restricted or prohibited only for public servants exercising authority in the name of the State; and
• -to provide information on the practical application of section 293 of the Criminal Code, which provides that 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, in respect of industrial actions.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations of the Confederation of Free Trade Unions (KVPU) received on 9 October 2017 and 31 August 2018, of the International Trade Union Confederation (ITUC) received on 1 September 2018, as well as of the Federation of Trade Unions of Ukraine (FPU) received on 11 October 2018. The Committee requests the Government to provide its comments on the numerous alleged violations of civil liberties and of the Convention in practice contained therein.

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 reiteration 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 in November 2014, as well as the Verkhovna Rada in June 2015, with a request to take into account the observations of the Committee and lift the constitutional restriction. 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 regrets the absence of further developments in this regard. It requests the Government to continue taking the necessary steps in order to ensure the right of judges to establish organizations of their own choosing to further and defend the interests of their members and to inform of all progress made in this regard.

Article 3. Right to organize activities and formulate their programmes in full freedom. With regard to the Committee’s previous request 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 recalls that the Government’s initial indication was that this requirement would be lowered in the draft Labour Code. Subsequently, the Committee noted that the draft Labour Code did not contain provisions dealing with the manner in which the decisions to declare a strike were taken, and strikes carried out. The Committee had therefore requested the Government to clarify which legal provision will govern the exercise of the right to strike once the Labour Code is adopted. The Committee notes the Government’s indication that the current version of the draft Labour Code refers to the relevant provision of the Law on the procedure for settlement of collective labour disputes and, as concerns the majority required to call a strike, to its section 19. The Committee once again recalls that if the national legislation requires a vote before a strike can be held, it should ensure that account is taken only of the votes cast and the majority is fixed at a reasonable level. The Committee therefore once again requests the Government to take the necessary measures to amend section 19 of the Law on the procedure for settlement of collective labour disputes accordingly and to indicate the progress achieved in this respect.

The Committee had previously requested the Government to list specific categories of public servants whose right to strike is restricted or prohibited by the Law on Civil Service, pursuant to section 10(5) of which, civil servants are prohibited from exercising the right to strike. The Committee notes the detailed information provided by the Government on various categories of civil servants, which, however, does not indicate whether or not they can exercise the right to strike. Recalling that the right to strike in the public service may be restricted or prohibited only for public servants exercising authority in the name of the State, the Committee requests the Government to clarify which categories of civil servants exercise authority in the name of the State and whether some or all civil servants are prohibited from exercising the right to strike and to amend the Law accordingly.

The Committee had previously noted that pursuant to section 293 of the Criminal Code, 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 notes the Government’s general information about pretrial investigations into offences under section 293. The Committee once again requests the Government to provide information on the practical application of this section in respect of industrial actions.

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

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.

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

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.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes a communication dated 24 August 2010 from the International Trade Union Confederation (ITUC) submitting its comments on the application of the Convention and alleging, in particular, restrictions on the right to strike and a concerted campaign against the Federation of Trade Unions of Ukraine and its affiliates. The Committee takes note of the Government’s observations thereon.

The Committee notes with regret that once again, the Government’s report contains no information on the measures it had previously requested the Government to take so as to ensure that national legislation is in conformity with the following Articles of the Convention.

Article 2 of the Convention. The Committee had 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;

–           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.

Article 3. The Committee had further requested the Government to take the necessary measures to:

–           repeal section 31 of the Law on employers’ organizations, which provides that the bodies of the State authority shall exercise control over economic activities of employers’ organizations and their associations;

–           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;

–           indicate categories of public servants whose right to strike is restricted or prohibited; and

–           provide information on the practical application of article 293 of the Penal 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 minimum wages or imprisonment for a term of up to six months and, in particular, in respect of an industrial action.

The Committee expresses the hope that the Government will take the necessary measures to address the issues raised by the Committee and that its next report will contain information on the progress achieved in this respect.

The Committee recalls that in its previous observation it had requested the Government to provide its observations on the comments submitted by the Confederation of Free Trade Unions of Ukraine (KVPU) on a new draft Labour Code. The KVPU considered that such legislation, if adopted, would have a negative impact on trade union activities and referred in particular to the issue of representativity. The Committee notes that the National Forum of Trade Unions of Ukraine and the KVPU submitted the same in communications dated 30 April and 8 July 2010, respectively. The Committee notes the Government’s reply thereon. According to the Government, by its decision of 20 May 2008, the Supreme Rada of Ukraine instructed the Committee on Labour and Social Policy to develop further the draft in cooperation with representatives of the Cabinet of the Ministers, All-Ukrainian trade unions and All-Ukrainian employers’ organizations. To that end, a working group was established on 4 June 2008. The Government also points out that as rights of trade unions are governed by the Law on Trade Unions, the draft Labour Code does not reproduce provisions on that matter. With regard to the right of agricultural workers, the Government indicates that the draft Code would regulate labour relations, including of members of agricultural farms; Law on agricultural farms regulates rights of association and other specific issues. The Committee further notes the Government’s indication in its latest report that a new version of the Code was drafted taking into account ILO advice, which had been discussed by the Committee on labour and social policy and the social partners. The Committee requests the Government to provide the latest version of the draft Labour Code and encourages it to continue its cooperation with the Office in this respect and requests it to provide information on all progress made with regard to the adoption of the Labour Code.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee had previously noted article 127 of the Constitution of Ukraine according to which, “professional judges shall not belong to trade unions” and 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 regrets that no information has been provided by the Government in this respect. It therefore once again recalls that the guarantee of the right of association should apply to all workers, including public servants, with the sole possible exception of the armed forces and the police. The Committee therefore, once again, requests the Government to provide information on the measures taken on envisaged to ensure the right of judges to establish organizations of their own choosing to further and defend the interests of their members.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s reply to the comments made in 2006 by the International Confederation of Free Trade Unions (ICFTU) on the issue of trade union registration, restrictions on the right to strike, interference in trade union activities and harassment of trade unionists. The Committee recalls that most of the ICFTU concerns were dealt with in Case No. 2388 before the Committee on Freedom of Association and notes that the Committee on Freedom of Association noted with interest the information provided by the Government on the outcome of investigations into the cases of alleged violations of trade union rights and considered that Case No. 2388 did not call for further examination (see 350th Report).

The Committee notes the communication dated 4 June 2008 received from the Confederation of Free Trade Unions of Ukraine (KSPU) submitting comments on the new draft Labour Code, which, in its opinion, would have a negative impact on the trade union activities and the comments of the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008 on instances of State interference in trade union affairs. The Committee requests the Government to provide its observations thereon.

Article 2 of the Convention. Right of workers and employers to establish organizations without previous authorization. The Committee recalls that, in its previous comments, it had noted the contradiction between section 87 of the Civil Code (2003), according to which, an organization acquires its rights of legal personality from the moment of its registration, on the one hand, and 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, on the other. The Committee had therefore requested the Government to amend section 87 of the Civil Code so as to eliminate the contradiction within the national legislation and so as to fully guarantee the right of workers to establish their organizations without previous authorization. Regretting that no information has been provided by the Government in this respect, the Committee reiterates its previous request and asks the Government to indicate the measures taken or envisaged in this respect.

Article 3. Right of workers’ and employers’ organizations to organize their administration and activities. The Committee recalls that, for a number of years, it had been requesting the Government 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. In this respect, it had noted that the draft amendments to the Law were being prepared and expressed the hope that the new amendments would take into account the Committee’s request. The Committee regrets that no information has been provided by the Government, neither in respect of the measures taken to repeal section 31, nor in respect of the progress made in amending the Law. Recalling once again that the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes, in particular, autonomy and financial independence and the protection of the assets and property of these organizations (see 1994 General Survey on freedom of association and collective bargaining, paragraph 124), the Committee reiterates its request and asks the Government to indicate the measures taken or envisaged to repeal section 31.

The Committee had previously requested the Government to amend section 19 of the Act on the procedure for the settlement of collective labour disputes, which provided that a decision to call a strike had to be supported by a majority of the workers or two-thirds of the delegates of a conference. The Committee regrets that the Government limits itself to providing the information it had provided previously (to the effect that the provision concerning the adoption of the decision by the majority of workers applies to enterprises where the number of workers is such as to allow for the possibility, in practice, of holding a workers’ assembly; if, however, the enterprise employs a large number of workers, they shall elect delegates to a conference, in this case, the decision to declare a strike shall be taken by two-thirds of the delegates). The Committee once again recalls that if the national legislation requires a vote before a strike can be held, it should ensure that account is taken only of the votes cast and the majority is fixed at a reasonable level (see General Survey, op. cit., paragraph 170). It therefore once again requests the Government to take the necessary measures to amend section 19 of the Act on the procedure for the settlement of collective labour disputes accordingly and to indicate the progress achieved in this respect.

In its previous observations, the Committee had requested the Government to provide information on the practical application of article 293 of the Penal 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 minimum wages or imprisonment for a term of up to six months and, in particular, in respect of an industrial action. In view of the absence of the Government’s reply, the Committee reiterates its request.

A request on another point is being addressed directly to the Government.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes article 127 of the Constitution of Ukraine according to which, “professional judges shall not belong to trade unions”. The Committee considers that the guarantee of the right of association should apply to all workers, including public servants, with the sole possible exception of the armed forces and the police. The Committee therefore requests 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.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report. It further notes the Government’s reply to the comments made by the Confederation of Free Trade Unions of Ukraine (KSPU) and by the Federation of Trade Unions of Ukraine (FPU), examined in the 2005 observation, concerning legislative issues previously raised by the Committee.

The Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) in its communications dated 31 August 2005 and 10 August 2006 on the application of the Convention which concern the issue of trade union registration, restrictions on the right to strike, as well as interference in trade union activities and harassment of trade unionists in practice. While noting that some of these matters were dealt with in Case No. 2388 (see 337th and 342nd Reports), pending before the Committee on Freedom of Association, the Committee nevertheless requests the Government to transmit its observations thereon with its next report.

The Committee notes the last examination of Case No. 2038 by the Committee on Freedom of Association (see 338th Report).

1. Law on employers’ organizations. The Committee recalls that in its previous comments on the Law, it requested the Government to repeal section 31 of the Law, which provided that the bodies of the state authority shall exercise control over economic activities of employers’ organizations and their associations. The Committee notes the Government’s statement that employers’ organizations cannot be forced to implement instructions or orders which are not provided for by law or which are of a criminal nature. The Committee recalls, however, that the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes, in particular, autonomy and financial independence and the protection of the assets and property of these organizations (see 1994 General Survey on freedom of association and collective bargaining, paragraph 124). The Committee therefore requests that the Government repeal this provision. Noting that the draft amendments to the Law are being prepared, the Committee hopes that the Committee’s comments in this regard will be taken into account and requests the Government to keep it informed of any development in this respect.

As to the Committee’s previous request to indicate the manner in which employers’ organizations are representing employers at national level, the Committee notes the Government’s detailed explanation and reference to the Law on collective agreements. The Committee notes in particular the Government’s indication that, at the national level, employers are represented by employers’ organizations with all-Ukrainian status. If there is more than one employers’ organization, they have an option of either setting up a single representative body for the purpose of collective bargaining or delegating the authority to one employers’ organization.

2. Trade union registration. The Committee recalls that in its previous comments, it had noted the contradiction between section 3 of the Act of Ukraine on the State Registration of Legal Persons and Physical Persons-entrepreneurs (2003), providing that “the associations of citizens (including trade unions), for which special conditions for state registration have been established under the Act, shall obtain the status of legal person only after their state registration” and section 87 of the Civil Code (2003), according to which, an organization acquires its rights of legal personality from the moment of its registration, on the one hand, and 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, on the other. The Committee notes with interest the Government’s statement that, on 19 October 2006, the Act to Amend the Act of Ukraine on the State Registration of Legal Persons and Physical Persons-entrepreneurs will enter into force. Under this Act, the reference to trade unions will be deleted from section 3. The Government does not, however, provide its comments on section 87 of the Civil Code. The Committee requests the Government to provide a copy of the Act of 19 October 2006 and to indicate the measures taken or envisaged to further amend section 87 of the Civil Code so as to eliminate the contradiction within the national legislation and so as to fully guarantee the right of workers to establish their organizations without previous authorization.

3. Right of workers’ organizations to organize their activities freely. The Committee had previously requested the Government to amend section 19 of the Act on the procedure for the settlement of collective labour disputes, which provided that a decision to call a strike had to be supported by a majority of the workers or two-thirds of the delegates of a conference. The Committee notes the Government’s indication that the provision concerning the adoption of the decision by the majority of workers applies to enterprises where the number of workers is such as to allow for the possibility in practice of holding a workers’ assembly. If, however, the enterprise employs a large number of workers, they shall elect delegates to a conference, setting the number of delegates representing a given number of workers. In this case, the decision to declare a strike shall be taken by two-thirds of the conference delegates. There is a clear distinction between small enterprises, in which workers’ assembles are held, and large enterprises, in which conferences of workers’ delegates are held. The Government therefore asserts that there is no risk of any restriction on the right to strike. While taking note of the Government’s explanation, the Committee considers that if the national legislation requires a vote before a strike can be held, it should ensure that account is taken only of the votes cast and majority fixed at a reasonable level (see General Survey, op. cit., paragraph 170). The Committee once again asks the Government to take the necessary measures to amend section 19 of the Act on the procedure for the settlement of collective labour disputes accordingly.

In its previous observation, the Committee requested the Government to provide information on the practical application of article 293 of the Penal 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 minimum wages or imprisonment for a term of up to six months and, in particular, in respect of an industrial action. In view of the absence of the Government’s reply in this respect, the Committee reiterates its request.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the information contained in the Government’s reports.

The Committee notes the comments made by the Confederation of Free Trade Unions of Ukraine (KSPU) and by the Federation of Trade Unions of Ukraine (FPU) on the application of the Convention. The Committee requests that the Government transmit its observations thereon.

1. Law on employers’ organizations. The Committee notes the comments made by the Ukrainian Union of Leaseholders and Entrepreneurs (SOPU) on the conformity of the Law on Employers’ Organizations with the Convention.

The Committee recalls that in its previous comments on the Law it requested the Government to indicate whether section X(3) of the Law, which provided that the Confederation of the Employers of Ukraine shall represent the employers at the state level pending the establishment and registration of employers’ organizations and their associations, was still applicable. It notes with interest that this section is no longer in force. It further notes the Government’s indication that four All-Ukrainian employers’ organizations are currently registered.

In its previous comments, the Committee also asked the Government to repeal section 31 of the Law, which provided that the bodies of the state authority shall exercise control over economic activities of employers’ organizations and their associations. The Committee notes the Government’s statement that the draft amendments to the Law are being prepared. The Committee hopes that the Committee’s comments will be taken into account and that organizations of employers will be consulted during the preparation of legislation which affects their interests, and requests the Government to keep it informed of any development in this respect. The Committee further once again asks the Government to indicate the manner in which employers’ organizations are representing employers at national level.

2. Trade union registration. The Committee notes that section 16 of the Trade Unions Act was amended in June 2003. It notes that according to newly amended section 16 of the Act, "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 however that according to section 3 of the Act of Ukraine on the state registration of legal persons and physical persons-entrepreneurs of 15 May 2003, "the associations of citizens (including trade unions), for which special conditions for state registration have been established under the Act, shall obtain the status of legal person only after their state registration, to be conducted in accordance with the order established by the present Act", and, according to section 87 of the Civil Code of 16 January 2003, an organization acquires its rights of legal personality from the moment of its registration. The Committee notes the contradiction between these pieces of legislation and the Trade Unions Act. As concerns the Act of Ukraine on the state registration of legal persons and physical persons-entrepreneurs, the Committee notes the Government’s indication that a draft amendment to section 3 of the Act, which would exclude trade union organizations from the scope of the Act, was prepared and transmitted on 18 November 2003 to the Parliament. The Government does not provide its comments on section 87 of the Civil Code. In view of the apparent contradiction in the legislation, the Committee asks the Government to amend its legislation so as to ensure that it guarantees the right of workers to establish their organizations without previous authorization. The Committee requests the Government to keep it informed of any developments in this respect.

3. Right of workers’ organizations to organize their activities freely. The Committee had previously noted that section 19 of the Act on the procedure for the settlement of collective labour disputes provided that a decision to call a strike had to be supported by a majority of the workers or two-thirds of the delegates of a conference. The Committee notes the Government’s statement that there were no legislative changes in this respect and that three drafts to amend the Act were registered in the Parliament. The Committee once again asks the Government to indicate in its next report the measures taken or envisaged to amend section 19 of the Act so as to ensure that account is taken only of the votes cast and that the required majority and quorum is fixed at a reasonable level.

The Committee further notes the adoption in 2001 of the new Penal Code. It requests the Government to provide information on practical application of article 293 of the 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 minimum wages or imprisonment for a term up to six months, and in particular in respect of an industrial action.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the adoption of the law of Ukraine on the organizations of employers. It further notes the comments made by the Ukrainian Union of Leaseholders and Entrepreneurs (SOPU) on the application of the Convention and requests that the Government transmit its observations thereon. The Committee wishes to raise a certain number of points concerning the application of the following Articles of the Convention.

Article 2 of the Convention. Right of employers to establish and join organizations of their own choosing. The Committee notes that section X(3) of the law provides that the Confederation of the Employers of Ukraine shall represent the employers at the state level pending the establishment and registration of employers’ organizations and their associations. While noting that this section appears to be a provisional measure, the Committee asks the Government to indicate whether this provision in force since 24 May 2001 is still applicable. It further requests the Government to indicate the number and status of employers’ organizations currently registered under the new legislation and the manner in which employers’ organizations are representing employers at national level.

Article 3 of the Convention. Right of employers’ organizations to organize their administration. The Committee notes article 31 of the law, which provides that the bodies of the state authority shall exercise control over economic activities of employers’ organizations and their associations. In this respect, the Committee recalls that the right of workers’ and employers’ organizations to organize their administration without interference by the public authorities includes in particular autonomy and financial independence and the protection of the assets and property of these organizations (see General Survey on freedom of association and collective bargaining, 1994, paragraph 124). The Committee therefore requests that the Government repeal this provision and keep it informed of measures taken or envisaged in this regard.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of the report supplied by the Government. It further notes the comments made by the Ukrainian Union of Leaseholders and Entrepreneurs (SOPU) on the application of the Convention and requests that the Government transmit its observations thereon.

The Committee also notes the conclusions of the Committee on Freedom of Association concerning Case No. 2038 (see 326th and 329th Reports, approved by the Governing Body at its 282nd and 285th Sessions).

Article 2 of the Convention. Right of workers and employers to establish and join organizations of their own choosing. The Committee notes the adoption on 13 December 2001 of the Act amending the Trade Unions Act, and more particularly its sections 11 and 16 previously commented upon by the Committee. It notes with interest that the requirement to unite more than half the workers of the same vocation or occupation in order for a trade union to obtain district or all-Ukrainian status provided for by section 11 was repealed. It further notes with interest that, according to the current wording of section 16 of the Trade Unions Act, trade unions and confederations of trade unions acquire their legal personality from the moment of their creation. As concerns the procedure of trade union registration, the Committee notes that the relevant paragraphs of section 16 remain unchanged. The Committee understands that the Government itself has acknowledged that the distinction between the acquisition by a trade union of legal personality (which occurs as soon as its by-laws are approved) and official legal recognition of a trade union creates certain difficulties with regard to the interpretation of standards concerning the inclusion of trade unions in the appropriate state registers. The Committee notes from the Government’s report that a final consensus on this issue has not yet been achieved and that the National Council of Social Partnership has made a decision to recommend that the Cabinet of Ministers charge the Ministry of Justice, with the participation of the parties concerned, with the task of elaborating, within a two-month period, eventual proposals on introducing further changes to the Trade Unions Act. The Committee recalls that in many countries, organizations are required to register; such legislation is not in principle incompatible with the Convention. However, it considers that problems of compatibility with the Convention may arise where, in practice, competent administrative authorities make excessive use of their powers and are encouraged to do so by the vagueness of the relevant legislation (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 74 and 75). The Committee trusts that, after full consultations with the social partners on the possible amendment of section 16 of the Act, a consensus will be found with a view to ensuring that the legalization requirement (through registration) is not applied in practice so as to amount to a requirement for previous authorization to establish an organization. The Committee requests that the Government keep it informed of any developments in this respect and to provide information in its next report on the number of cases where registration has been denied and the reasons therefore.

Article 3. Right of workers’ organizations to formulate their programmes of action without interference from the public authorities. The Committee had previously noted that section 19 of the Act on the procedure for the settlement of collective labour disputes provided that a decision to call a strike had to be supported by a majority of the workers or two-thirds of the delegates of a conference. The Committee once again asks the Government to indicate in its next report the measures taken or envisaged in order to amend section 19 of the Act so as to ensure that account is taken only of the votes cast and that the required majority and quorum is fixed at a reasonable level.

Finally, the Committee once again requests that the Government indicate whether the former provisions of the Penal Code which were previously applicable in the USSR, and particularly section 190(3) which contained significant restrictions on the exercise of the right to strike in the public and transport sectors enforceable by severe sanctions, including up to three years’ imprisonment, have been repealed by a specific text.

In addition, a request regarding certain points is being addressed directly to the Government in respect of some provisions of the Law on the organizations of employers.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee takes note of the report supplied by the Government.

It also notes the conclusions of the Committee on Freedom of Association concerning Cases Nos. 2038 and 2079 (see 318th Report, paragraphs 517-533 and 323rd Report, paragraphs 525-543).

The Committee notes the adoption on 15 September 1999 of the Act of Ukraine on Trade Unions, their Rights and Safeguards of their Activities. More particularly, the Committee takes note of section 11 of the Act which provides that in order for a trade union to obtain district or all-Ukrainian status, it should unite more than half the workers of the same vocation or occupation or should have its organizational units in the majority of administrative territorial units of the same district or in the majority of administrative territorial units of Ukraine. In this regard, the Committee recalls that problems may arise when legislation stipulates that an organization may be set up only if it has a certain number of members in the same occupation or enterprise, or when it requires a high minimum proportion of workers which, in the latter case, in practice precludes the establishment of more than one trade union in each occupation or enterprise. Thus, requirements regarding territorial competence and number of union members should be left for trade unions to determine in their own by-laws and any legislative provisions that go beyond formal requirements may hinder the establishment and development of organizations and constitute interference contrary to Article 3(2) of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 80-83 and 111). The Committee also notes that section 16 of the Act provides for the compulsory registration of a union which is carried out by a legalizing body that will verify the correspondence of the status of the union in accordance with the requirements of section 11. In this regard, the Committee recalls that Article 7 of the Convention provides that the acquisition of legal personality by workers’ organizations shall not be made subject to conditions of such a character as to restrict the application of the provisions of Articles 2, 3 and 4 thereof. Sections 11 and 16 of the Act were challenged in the Constitutional Court of Ukraine and were the object of the two complaints referred to above which were examined by the Committee on Freedom of Association. Following these developments, the Committee notes with interest that on 24 October 2000, the Ukrainian Constitutional Court declared unconstitutional certain provisions of sections 8, 11 and 16 of the Act on Trade Unions, their Rights and Safeguards of their Activities. The Committee asks the Government to supply a copy of the said decision and expresses the firm hope that the Government will take the necessary measures to bring sections 11 and 16 of the Act on Trade Unions, their Rights and Safeguards of their Activities into full conformity with the provisions of the Convention.

Right of workers’ organizations to formulate their programme of action without interference from the public authorities, including by recourse to industrial action.  The Committee takes note with interest of the adoption in November 1998 of the Presidential Decree and the Regulations on the Establishment of the National Mediation and Conciliation Service which shall take decisions which have the character of recommendations in the settlement of labour disputes. The Committee requests the Government to keep it informed in its next report of the application in practice of this new mechanism for the settlement of labour disputes.

With reference to its previous comments, the Committee had noted that section 19 of the Act on the procedure for the settlement of collective labour disputes provides that a decision to declare a strike must be supported by a majority of the workers or two‑thirds of the delegates of a conference. The Committee recalls in this regard that the majority and quorum required for a strike ballot should not be such that the exercise of the right to strike becomes very difficult or even impossible in practice. Any such legislative requirements should therefore ensure that account is taken only of the votes cast and the required majority and quorum should be fixed at a reasonable level (see General Survey, op. cit., paragraph 170). The Committee asks the Government to indicate in its next report the measures taken or envisaged in order to bring section 19 of the Act into full conformity with the principles of freedom of association.

Finally, the Committee once again requests the Government to indicate in its next report whether the former provisions of the Penal Code which were previously applicable in the USSR, and particularly section 190(3) which contained significant restrictions on the exercise of the right to strike in the public and transport sectors enforceable by severe sanctions, including up to three years’ imprisonment, have been repealed by a specific text.

Direct Request (CEACR) - adopted 1998, published 87th ILC session (1999)

With reference to its observation, the Committee notes that section 19 of the Act on the procedure for the settlement of collective labour disputes (hereinafter, the Act) provides that a decision to declare a strike must be supported by a majority of the workers or two-thirds of those participating in a strike ballot. The Committee recalls in this regard that the majority required for a strike ballot should not be such that the exercise of the right to strike becomes very difficult or even impossible in practice. Any such legislative requirements should therefore ensure that account is taken only of the votes cast and the required majority should be fixed at a reasonable level (see 1994 General Survey on freedom of association and collective bargaining, paragraph 170). The Committee trusts that the application of the Act in practice will ensure that this principle is taken into account.

Furthermore, the Committee notes that section 24 of the Act prohibits strikes where the cessation of work creates a threat to the lives and health of people or to the environment, or impedes the prevention of natural calamities, accidents, disasters, epidemics and epizootics or the elimination of their consequences. The Committee recalls that the prohibition of strikes should be restricted to essential services in the strict sense of the term, namely those the interruption of which would endanger the life, personal safety or health of whole or part of the population. The Committee therefore requests the Government to confirm in its next report that the reference to threats to the environment in section 24 is limited to cases where such a threat would endanger the life, personal safety or health of the population.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee takes note of the report supplied by the Government. It also notes the observations made by the Independent Union of Miners at the Barakov Mine Enterprise in relation to alleged violations of the Convention in the mine, and the information supplied by the Government in reply. In this regard, see the Committee's comments under Convention No. 98.

The Committee notes the Government's statement that, aware of the importance of complying with international commitments, the Cabinet is taking specific measures to reform industrial relations and improve the framework of laws and standards. In particular, the Government indicates that the Act on the settlement of collective labour disputes was passed in March 1998. Furthermore, the Government states that the Cabinet, in consultation with employers' organizations and trade unions, has drafted and submitted to the Supreme Council draft Acts on trade unions, on social partnership and on amendments and additions to the Act on collective agreements and accords. Finally, a draft Presidential Decree on a national mediation and conciliation service has also been drawn up.

In this connection, the Committee would recall its previous comments in which it emphasized the importance of ensuring that all workers and employers, without distinction whatsoever, including nationals and foreigners working in the territory of the Ukraine, have the right to form and join organizations for the defence of their interests (Article 2 of the Convention) and that such organizations are able to organize their activities and formulate their programmes without interference by the government authorities.

The Committee trusts that the texts referred to by the Government will ensure this principle and requests the Government to transmit copies of the above-mentioned draft texts so that it may ascertain their conformity with the Convention.

Finally, the Committee requests the Government to indicate in its next report whether the former provisions of the Penal Code which were previously applicable in the USSR, and particularly section 190(3) which contained significant restrictions on the exercise of the right to strike in the public and transport sectors enforceable by severe sanctions, including up to three years' imprisonment, have been repealed by a specific text.

The Committee notes with interest the adoption of the Act on the procedure for the settlement of collective labour disputes and is addressing a request directly to the Government in respect of certain matters relative to this law.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information supplied by the Government in its report. It notes that the Bills on trade unions and the settlement of collective labour disputes are still being examined and have not yet been adopted.

In this connection, in its previous comments, the Committee emphasized the importance of compliance with Article 2 of the Convention under which workers and employers without distinction whatsoever, that is to say, both nationals and foreigners working regularly in the territory of Ukraine, must have the right to establish organizations for the defence of their interests, and with Article 3 under which organizations must be able to organize their activities and formulate their programmes without any interference by the public authorities.

The Committee expressed the hope that the Government would take its comments into account in drafting the two above texts.

The Committee asks the Government to report on the progress in the preparation of the above texts and to provide a copy of them in draft form so that it may ascertain whether they are in conformity with the requirements of the principles of freedom of association, or of a copy of the final version of the texts as soon as they have been adopted.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee has noted the information sent by the Government in its report.

The Committee observes with interest from the information in the Government's report that the drafts of the Trade Unions Act and the Collective Labour Disputes Act are currently before the Supreme Soviet of Ukraine.

The Committee emphasizes the importance of complying with Article 2 of the Convention under which workers and employers, without distinction whatsoever, that is to say citizens and foreigners working legally in the territory of Ukraine, must have the right to establish occupational organizations to protect their interests, and with Article 3, under which the trade unions must have the right to organize their activities and to formulate their programmes without interference from the public authorities.

The Committee trusts that the Government will take into account these comments when formulating the two texts in preparation and recalls that the ILO is available for any technical assistance it may need in formulating legislation which will implement the Convention.

The Committee requests the Government to send it in its next report the text of the draft Trade Unions Act and draft Collective Labour Disputes Act in order to allow it to examine their conformity with the requirements of the principles of freedom of association and, if these texts have already been adopted, to transmit copies thereof to the Office.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes with interest that the Declaration on the creation of the Independent Trade Unions Federation of Ukraine which provides that membership is voluntary and that members are free to leave when they wish was adopted in October 1990.

The Committee also notes that the Law on Citizens' Organizations was passed by the Supreme Soviet of Ukraine in June 1992. The Law stipulates that citizens' organizations are to be based on the following principles: that membership is voluntary; that members have equal rights; that they will have the right to govern their own affairs; that they will respect the law of the land; and that they will be free to choose their own policies and programmes. Moreover, non-interference in the activities of citizens' organizations by public authorities and officials is guaranteed by the Law as is the right of these organizations to establish and join federations and confederations, and to affiliate with international workers' and employers' organizations on a voluntary basis. The Law also stipulates that although such organizations can be dissolved following a court ruling, they cannot be dissolved or suspended by administrative authority.

The Committee looks forward to receiving a copy of the Trade Unions Law; the Law on Collective Agreements; and the Law on the Settlement of Industrial Disputes referred to by the Government, along with its next report.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

With reference to its previous comments, the Committee notes with satisfaction that section 6 of the Constitution of the Ukrainian Republic, which had set out the leading role of the Communist Party over mass organisations, including trade unions, has been repealed and that section 7, as amended, enshrines the principle of political pluralism.

The Committee also notes with interest that, in October 1990, the first Congress of the new Federation of Independent Ukrainian Trade Unions was held, during which a Charter was adopted which lays down the principle of the independence of trade unions with regard to state and political authorities and recognises the right of the trade unions of the Ukrainian SSR freely to join or leave the Federation. It also notes that a Bill concerning the trade unions of the Ukrainian SSR is currently being examined by the specialised committees of the Supreme Soviet of the Ukrainian SSR.

The Committee requests the Government to supply copies of these texts.

Finally, with reference to section 5 of the Order of the Supreme Soviet of the USSR on the coming into force of the USSR Act concerning trade unions of 10 December 1990, which, as the Committee of Experts has indicated in its comments to the Government of the USSR on this Convention, opens the way to trade union pluralism, the Committee notes that the supreme bodies of the Republics of the Union are recommended to align the legislation of their Republic with the provisions of the Act.

The Committee requests the Government of the Ukrainian SSR to supply information on the measures that have been taken under this provision in order to eliminate any ambiguity which may persist in the legislation of the Republic as regards the possibility of genuine trade union pluralism and to supply the relevant texts.

The Committee refers to the direct request it is addressing to the Government of the USSR on the Law of the Union of Soviet Socialist Republics on the settlement of collective labour conflicts, dated 9 October 1989.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

The Committee notes the Government's report on the application of the Convention.

To the extent that the Committee's comments that are addressed to the Government of the USSR deal with situations and texts that are similar to those of the Ukrainian SSR, the Committee asks the Government to refer to the comments that it has made in respect of the Government of the USSR under this Convention.