Effect given to the recommendations of the committee and the Governing Body - Report No 368, June 2013

Case No 2843 (Ukraine) - Complaint date: 22-MAR-11 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 134. The Committee last examined this case at its November 2011 meeting, when it made the following recommendations [see 362nd Report, paras 1458–1499]:
   • (a) The Committee once again requests the Government to amend section 87 of the Civil Code so as to eliminate the contradiction with regard to the requirement of registration versus the requirement of legalization imposed on trade unions by the national legislation and so as to fully guarantee the right of workers to establish their organizations without previous authorization.
   • (b) The Committee requests the Government and the KVPU to provide information on the registration status of the KVPU organizations in the Khmelnitsky region and the Autonomous Republic of Crimea.
   • (c) The Committee requests the Government and the KVPU to indicate whether a new branch agreement has been reached for the education sector and whether the KVPU has participated in the collective bargaining. It further requests the Government and the KVPU to indicate whether amendments to the health sector agreement proposed by the KVPU have been considered and adopted.
   • (d) The Committee requests the Government to institute an independent investigation into the allegations of pressure put on trade unions activists at mining enterprises (Frunze, Nikopol Plant of Ferroalloys and Kryvy Rih Iron Ore Complex) and mines mentioned in the KVPU communication of 8 September 2011 and to keep it informed of the outcome.
   • (e) The Committee expects that the powers of the NSMR under section 7 of the Law on the Social Dialogue will be limited to the examination of whether a given organization meets the established objective representativity criteria.
   • (f) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.
2. 135. In its communications dated 15 March 2012, 7 July 2012 and 1 August 2012, the Government sent its observations in reply to the Committee’s recommendations. As concerns the legalization (registration) of trade unions, the Government indicates that the conditions of trade union legalization are defined by section 16 of the Trade Union Law but it does not address the need to amend section 87 of the Civil Code (2003) 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. 136. As regards the registration status of the Confederation of Free Trade Unions of Ukraine (KVPU) organizations in the Khmelnitsky region, the Government indicates that according to the Ukrainian State Register, no documents regarding the legalization of a KVPU organization in the Khmelnitsky district and the Confederation of Free Trade Unions of the Autonomous Republic of Crimea (ARC) were issued. As regards the registration status of the KVPU organizations in the ARC, the Government reiterates its explanations with regard to the reasons for the non-registration of the KVPU affiliates.
4. 137. As regards the conduct of an independent investigation into complaints of interference in the activity of trade unions, the Government indicates that sections 12 and 46 of the Trade Union Law protect against acts of interference by the state and local government authorities, their officials and employers and provides for sanctions against such acts.
5. 138. As regards whether amendments to the health sector agreement proposed by the KVPU have been considered and adopted, the Government indicates that in an effort to engage the KVPU in the process of improving the existing industrial agreements and in the drafting of an industrial agreement in the health-care sector for 2012–16, the Ministry of Health Care repeatedly requested that the Free Trade Union of Medical Workers of Ukraine (a KVPU affiliate) submits proposals. Particularly in connection with the signing of a General Agreement on setting basic principles and norms for implementing social and economic policy and labour relations in Ukraine for 2010–12 and in connection with the adopted order of the Cabinet of Ministers of Ukraine dated 30 March 2011 on the appropriate plan of action for implementing its provisions, the Ministry requested that proposals be made for adopting changes to the industrial agreement between the Ministry and the Central Committee of the Trade Union of Healthcare Workers of Ukraine for 2007–11. In order to satisfy this request from the Ministry, the President of the Free Trade Union for Medical Workers of Ukraine, Mr Panasenko proposed that the President of the Trade Union of Healthcare Workers of Ukraine, Ms Koval, establish a joint representative body for the subsequent adoption of changes and additions to the industrial agreement with the Ministry. In response, the Trade Union for Healthcare Workers of Ukraine reported that a joint representative body for collective bargaining, so as to prepare and introduce changes to the industrial agreement, can be considered once the representativeness of the parties has been confirmed in accordance with the Law on Social Dialogue. In an effort to conclude the industrial agreement between the Ministry, the Ukrainian Federation of Healthcare Employers and the Central Committee of the Trade Union of Healthcare Workers for 2012–16, in accordance with the requirements of the Law on Social Dialogue and the Law on Collective Agreements, a draft order on establishing a working group on collective bargaining for signing an industrial agreement between the Ministry, the Ukrainian Federation of Healthcare Employers and the Central Committee of the Trade Union for Healthcare Workers was drafted by the Ministry for 2012–16. The Ministry says that, despite the lack of certificate confirming representativeness of the Free Trade Union for Medical Workers of Ukraine, the its representatives will be engaged in work for drafting a new industrial agreement for 2012–16 in an advisory capacity.
6. 139. As regards the powers of the National Service of Mediation and Reconciliation (NSMR) under section 7 of the Law on Social Dialogue, the Government states that the assessment of compliance with the criteria for representativeness is carried out in accordance with the principles of confidentiality, independence and impartiality. The NSMR and its bodies assess conformity with representativity criteria and confirm the representative status of bodies of trade union and employers’ organizations at the national, sectorial and local levels, in line with the Law on Social Dialogue and the Procedures on the assessment of conformity with representativity criteria and confirmation of the representative status of trade union bodies and employers’ organizations (the Procedures). The NSMR, in keeping with the values of openness and transparency in decisions made on the drafting of the Procedures, engaged representatives of trade unions and employers’ organizations at the national level and also specialists from the Ministry of Justice, the Ministry of Social Policy and the State Statistics Service. On 30 May 2011, in view of these proposals, the draft Procedures were examined once again by parties to the social dialogue to be approved at meetings of the Joint Representative Body of the Employers’ Side on the National Level (the Joint Representative Body of the Employers) and the Joint Representative Body of the all-Ukrainian Trade Unions and Trade Union Associations (the Joint Representative Body of the Trade Unions). On 10 June 2011, the NSMR received the draft Procedures which had been agreed at the meeting of the Joint Representative Body of the Trade Unions. The Government underlines that although the KVPU was also part of the Joint Representative Body of Trade Unions, it did not submit proposals on the draft Procedures to the NSMR nor did it delegate its members to the working group on the drafting of the Procedures. On 22 June 2011, the NSMR Chairperson reported on the progress of the Law at hearings on social policy and labour by the Committee of the Supreme Council, and also on 24 June 2011 at a meeting of the National Tripartite Social and Economic Council. After discussion and agreement with parties to the social dialogue at the national level, the Procedures were approved by NSMR Order No. 73 of 21 July 2011 and placed on the official website. The Government further explains that according to the results of a 2011 national level assessment of compliance with the criteria for representativeness, the NMSR did not consider the KVPU to be representative in a decision dated 22 February 2012. At the same time, the NSMR informed the President of the KVPU, Mr Volynets, that if the problems identified during random checks were resolved, then the KVPU could again have the NSMR assess their compliance with the criteria for representativeness in 2012. The documents for reassessing the KVPU’s compliance at the national level were received at the NSMR on 12 April 2012. Taking into account the results of the NSMR random checks which evaluated the reliability of the submitted data regarding the number of KVPU affiliates, the NSMR Committee found that in 2012 the KVPU had resolved the problems from 2011, and that on 1 January 2012 the total membership of the KVPU stood at 181,600 people. Taking into account the results of the KVPU’s reassessment on the compliance with the criteria for representativeness, on 26 April 2012, the NSMR recognized the KVPU as representative at the national level.
7. 140. With regard to the requirement of legalization (registration), the Committee observes that while the Government did not address the need to amend section 87 of the Civil Code (2003) 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 in its response, it has indicated to the Committee of Experts on the Application of Conventions and Recommendations (CEACR) that the Ministry of Social Policy has requested the Ministry of Justice to examine this issue pursuant to the CEACR’s request. The Committee expects that the necessary amendments to the legislation will be adopted in the near future and refers this aspect to the case to the CEACR.
8. 141. As regards the registration status of the KVPU organizations in the Khmelnitsky region and the ARC, the Committee notes the Government’s explanations with regard to the reasons for the non-registration of the KVPU organizations. The Committee observes with regret that the complainant has not provided the information requested and recalls the importance of receiving full information to enable the Committee to carry out a full and objective consideration of the matters before it in full knowledge of the facts. In these circumstances, it will not pursue the examination of those matters.
9. 142. As regards the Committee’s recommendation to institute an independent investigation into the allegations of pressure put on trade unions activists at mining enterprises (Frunze, Nikopol Plant of Ferroalloys and Kryvy Rih Iron Ore Complex) and mines mentioned in the KVPU communication of 8 September 2011, the Committee notes the Government’s indication that sections 12 and 46 of the Trade Union Law protect against acts of interference by the state and local government authorities, their officials and employers and provides for sanctions against such acts. Noting with regret that no information was provided regarding the institution of an independent investigation, as requested by the Committee, it urges the Government to institute without delay an independent investigation into the allegations of pressure put on trade unions activists at mining enterprises (Frunze, Nikopol Plant of Ferroalloys and Kryvy Rih Iron Ore Complex) and mines mentioned in the KVPU communication of 8 September 2011, and to keep it informed of the outcome.
10. 143. As concerns whether amendments to the health-sector agreement proposed by the KVPU have been considered and adopted, the Committee welcomes the Government’s explanation that in an effort to engage the KVPU in the process of improving the existing industrial agreements and in the drafting of an industrial agreement in the health-care field for 2012–16, the Ministry requested that the Free Trade Union of Medical Workers of Ukraine (a KVPU affiliate) offer proposals and further welcomes the indication that, despite the lack of certificate confirming representativeness in the Free Trade Union for Medical Workers of Ukraine, its representatives will be engaged in work for drafting a new industrial agreement for 2012–16 in an advisory capacity.
11. 144. The Committee notes with regret that no information has been provided concerning agreements reached for the education sector. It once again requests the Government to indicate whether a new branch agreement has been reached for the education sector and whether the KVPU has participated in the collective bargaining.
12. 145. The Committee notes the Government’s indication that consultations took place with the social partners prior to the adoption of the Procedures, including the KVPU who was part of the Joint Representative Body of Trade Unions but did not submit proposals on the draft Procedures to the NSMR nor did it delegate its members to the working group on the drafting of the Procedures. The Committee welcomes the Government’s indication that as regards the powers of the NSMR under section 7 of the Law on Social Dialogue and the Procedures, the assessment of compliance with the criteria for representativeness is carried out in accordance with the principles of confidentiality, independence and impartiality. The Committee notes with interest that on 26 April 2012, the NSMR recognized the KVPU as representative at the national level.