Report in which the committee requests to be kept informed of development - Report No 392, October 2020

Case No 3341 (Ukraine) - Complaint date: 06-NOV-18 - Follow-up

Allegations: The complainant organization alleges gross and systematic violations by Ukrainian public authorities, courts and employers of the right of trade unions to freely and independently organize their activities

1. 925. The complaint is contained in a communication dated 6 November 2018 submitted by the Federation of Trade Unions of Ukraine (FPU).
2. 926. The Government of Ukraine transmitted observations on the allegations in a communication dated 13 March 2019.
3. 927. Ukraine has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 928. In a communication dated 6 November 2018, the FPU alleges gross and systematic violations by Ukrainian public authorities, courts and employers of the right of trade unions to freely and independently organize their activities.
2. 929. The FPU alleges, in particular, that the legislative provisions on financial and statistical reporting of trade unions contradict national and international law. It explains that, pursuant to section 2 of the Law of Ukraine on Accounting and Financial Reporting, all legal entities established under Ukrainian legislation regardless of their organizational type and form of ownership, including trade unions, are obliged to keep accounting records and provide financial reporting. Furthermore, pursuant to section 16 of the Law of Ukraine on State Statistics, its respondents, including legal entities, should agree with state statistical authorities on the methodology and reporting documents related to the collection and use of administrative data as well as the methodology of compiling financial data and provide at no charge administrative data and financial statistics at the request of state statistical authorities.
3. 930. The complainant organization considers that the requirements of these laws violate sections 12, 14 and 34 of the Law on Trade Unions, Article 3 of Convention No. 87, and are incompatible with the principles of freedom of association. It indicates that, according to section 23 of the Law of Ukraine on Public Associations, the obligation to publish reports on the use of funds is only set for the public organizations that receive financial support from the State Budget of Ukraine, local budgets and only concerning these funds. Moreover, it argues that an obligation to publish all financial reports contradicts the Law of Ukraine on the Protection of Personal Data, because this information contains personal data of trade union members and could be published only with their consent.
4. 931. The FPU notes that it has recently received complaints from its member organizations about the requests by statistical bodies to present their financial reports. Statistical bodies refer to the Law of Ukraine on Accounting and Financial Reporting and to the Procedure of Provision of Financial Reports approved by Order of the Cabinet of Ministers of Ukraine (No. 419 of 28 February 2000). Trade unions consider these requests to be unlawful and believe they represent a direct interference of state authorities in the activities of trade unions and is a violation of their rights.
5. 932. The complainant organization further alleges numerous violations of Conventions Nos 87 and 98 in practice. It recalls that, as part of the ongoing monitoring of trade union rights violations in Ukraine that it conducts, facts of the violations reported by member organizations are included in the Single Register of Trade Union Rights Violations. The FPU indicates that in 2017, 31 violations were registered at 24 companies, while in the first half of 2018, 13 violations at seven companies were reported. More precisely, it states that member organizations reported violations of the right of trade unions to draw up their constitutions and rules, to elect their representatives in full freedom, to organize their administration and activities and to formulate their programmes. Acts of interference in their establishment, functioning, administration or statutory activities by public and local authorities or their officials, and employers or their organizations, were also reported.
6. 933. In particular, the complainant indicates that a violation happened at a communal enterprise in the waste disposal industry. According to the FPU, the workers, who were members of the Housing and Municipal, Local Industry, Consumer Services Workers’ Union of Ukraine, under the threat of dismissal, were coerced into writing statements that they were quitting the trade union, and the head of the primary trade union organization, who was a person with disability, was forced to write a resignation notice.
7. 934. The complainant highlights other violations at a Government Contact Centre in 2018, where the acting Director: (i) emailed the head of the trade union organization a sample register of participants in the trade union meeting to be used as an appendix to the minutes of the meeting the trade union committee held; (ii) issued an order to set up an inquiry commission to confirm/dismiss facts related to the actions of the primary trade union organization taken during consideration of a letter; (iii) personally ordered, without consultation with the trade union committee, the publication on the restricted area of the enterprise’s website a sample statement to discontinue trade union membership and stop paying fees, which was eventually used simultaneously by four employees; (iv) attempted to discredit the trade union organization by sending a letter to the Secretariat of the Cabinet of Ministers of Ukraine and to other trade union organizations, in which it questioned the activities of its elected body, wrongfully commented on its activities, and distorted the information about documents guiding its activities. Furthermore, according to the FPU, the Government Contact Centre violated multiple sections of the Law on Trade Unions and the Labour Code by not consulting the trade union committee three months in advance of the planned dismissal of workers, by dismissing a member of the trade union committee, Mr Fedir Dovzhenko, without the prior consent of that committee and the Kyiv regional committee of the Trade Union of Social Sphere Workers of Ukraine, and by omitting to provide the trade union committee with premises for the organization of its work and for trade union meetings.
8. 935. The complainant organization also describes violations that were reported at a state enterprise in the civil aviation industry, where the director did not provide information on working conditions, pay and socio-economic development of the enterprise in response to the trade union’s request, which contravened the Law on Trade Unions. The complainant further indicates that on 6 July 2018, the head of the trade union committee, Mr Anton Smorodin, was denied access to his workplace. Reacting to these violations, the head of the trade union committee sent letters to the Central Committee of the Trade Union, to the State concern Ukroboronprom, and to the parties of the Sectoral Agreement. It also reports that the police registered a statement of the offence, which hindered the legal activities of the trade union.
9. 936. The FPU also alleges violations by Ukrainian public authorities and courts of the right of trade unions to organize their activities without any interference by confiscating trade union property, which was acquired at the expense of membership fees. According to the complainant, the most outstanding example of such violations is the unlawful nationalization and confiscation of buildings of the regional bodies of trade unions and their confederations in Poltava and Uzhgorod. It notes that, on the basis of court decisions made under the pressure of law enforcement bodies and the State Property Fund of Ukraine, buildings belonging to the Poltava Regional Trade Union Council and to the Zakarpattia Regional Trade Union Council were confiscated. As a result, the above-mentioned regional trade union confederations have been deprived of their offices where they held meetings of their elected bodies, conferences and meetings of trade union activists; received trade union members; prepared documents; and conducted trade union events; and can no longer continue their normal trade union rights-protecting activity. The complainant organization points out that, after one of the attempts to seize the building of trade unions, criminal proceedings were opened against the Chairman of the Zakarpattia Regional Trade Union Council. The FPU also informs the Committee about attempts by the state authorities to seize buildings legally owned by the Federation of Trade Unions of Chernihiv Oblast and by the Federation of Trade Unions of Odessa Region. It explains that despite court decisions confirming the lawfulness of the ownership rights, there are recurring attempts to evict trade unions from the buildings.
10. 937. According to the complainant organization, to prove their case in courts, public authorities use Orders of the Rada “On Property Complexes and Financial Resources of Non Governmental Organizations of the Former USSR, Situated on the Territory of Ukraine” of 10 April 1992 and “On Property of the All-Soviet Non-Governmental Organizations of the Former USSR” of 4 February 1994, that ruled that temporarily, until the legal successors of all-soviet non-governmental organizations of the former USSR were determined, their property and financial assets, situated on the territory of Ukraine, should be transferred to the State Property Fund of Ukraine.
11. 938. However, the complainant believes that in these cases, public authorities and courts do not take into account that: (i) the Federation of independent trade unions of Ukraine (now the FPU, as a legal successor) obtained the ownership rights on the property in November 1990 from the General Confederation of Trade Unions of the USSR, before the Act of Independence of Ukraine was adopted on 24 August 1991. Therefore, Orders of the Verkhovna Rada of 10 April 1992 and 4 February 1994 could not apply to the property legally acquired by the FPU in 1990; (ii) the above-mentioned Orders do not have the legal force of national law, as they are not a source of law and therefore could not be referred to in courts; (iii) these violations are also rooted in the discriminatory approach in the national legislation regarding the property of trade unions compared to the property of other civil society organizations that were active in Soviet times and continue their activities in independent Ukraine; (iv) the V.M. Koretskyi State and Law Institute of the National Academy of Science of Ukraine determined that classification of the property of trade unions as socialist ownership, a universal form of ownership in the USSR, did not mean that the property became state-owned; and (v) in accordance with the civil legislation of Ukraine, the FPU is a bona fide beneficiary of the property as an owner with fair intentions that has been owning the assets for more than ten years, acquired the property on the basis of a legal contract and has no reason to consider this property as state-owned. That is why, in 1997, the Higher Arbitration Court of Ukraine ruled that trade unions lawfully acquired the ownership rights to the property transferred in the process of legal succession from the trade unions of the USSR. The FPU indicates that, as a party to legal proceedings, it provided courts with a large body of evidence of the legality of ownership of property belonging to trade unions for several dozens of years. The body of evidence, besides the ones mentioned, includes certificates of ownership issued by the state bodies, case law confirming the legality of trade union ownership rights and conclusions of forensic investigation confirming the construction of buildings using the trade union’s own funds.
12. 939. The complainant organization further indicates that, after courts had made illegal decisions to confiscate trade union property, the Cabinet of Ministers of Ukraine passed Order No. 817 of 7 October 2015, breaching article 19 of the Constitution of Ukraine and sections 5 and 6 of the Law of Ukraine on Management of the State Property, which do not give the Government relevant powers and authorities. This Order approved the Procedure of Determining the Entity to Manage Objects Returned to State Ownership and Other Property with Undefined Managing Entity. According to the complainant, paragraph 1 of this Procedure contains the list of properties it should be applied to, and this list unlawfully includes the property of all-soviet civil society organizations of the former Soviet Union situated in the territory of Ukraine and returned to the state ownership by court rulings. The FPU states that the Cabinet of Ministers of Ukraine refers to this Procedure to issue its own normative acts, unlawfully distributing property belonging to trade unions that was transferred to the State by court decisions. To seize and take the property under physical control, public authorities use private illegal mercenary groups, because workers of the organizations situated in these buildings refuse to obey unlawful acts of the Government. As an example, the complainant organization states that there was a raid on a trade union hotel, the Rassvet Hotel, in Dnipropetrovsk on 29 May 2018, as a state judicial enforcement agent accompanied by several unknown well-built persons and the police burst into the hotel and demanded all visitors and employees turn in their keys and vacate the premises.
13. 940. In order to protect trade union property rights and remedy the breach of the legislation, the FPU indicates that it has written repeatedly to the Government, demanding that it cancel Order No. 817 or bring it into compliance with the legislation, and to cancel or suspend other orders transferring trade union property to public authorities. In its letters to the Government, it referred to the conclusions of the Ministry of Justice which, after expert evaluation of Order No. 817, confirmed that the Cabinet of Ministers of Ukraine had gone beyond its authority when adopting this act. However, the complainant indicates that the Government took no effective measures and, on the contrary, continues to artificially delay the legislative regulation of trade union property rights.
14. 941. The complainant organization states that, as a result of the enforcement of court decisions on the forced seizure of property without alternative offers from the state authorities, trade union organizations cannot fully carry out their work. It also depletes their finances, as the state authorities do not provide other premises for the unhindered functioning of trade unions, which violates Convention No. 87. At the same time, the state authorities ignore article 41 of the Constitution, which requires, when forcibly alienating entities of private property rights, to provide full reimbursement of their value in advance.
15. 942. The complainant reports that the situation regarding the violation of trade union rights was considered at the meetings of the FPU Presidium on 21 June and 20 September 2018, to which the Prime Minister was invited but did not attend. The FPU Presidium has passed resolutions providing for comprehensive measures to stop the unprecedented attack on socio-economic workers’ rights and property rights of trade unions, most of which have already been implemented. In particular, the FPU reports that it has sent statements to the President and the Prime Minister of Ukraine and to various social partners and United Nations bodies about the systematic violation of trade union rights.
16. 943. The complainant organization indicates that on 24 July 2018, a Memorandum of Cooperation was signed between the FPU and the Ukrainian Parliament Commissioner for Human Rights, one of its objectives being joint actions to counter the attack on trade union rights and trade union activists. It further indicates that the Verkhovna Rada Committee on Social Policy, Employment and Pensions has scheduled hearings on the theme of the application of Convention No. 87 on 7 November 2018. The FPU also notes that, along with its affiliates, it resorted to protest actions against state and judicial abuse of power.
17. 944. The FPU concludes by stating that it would like the Committee to urge public authorities to ensure full implementation of Conventions Nos 87 and 98, to bring its legislation into compliance with these Conventions, and to abandon, both in the legislation and in practice, its discriminatory approach to trade unions’ ownership rights. It would also like the Committee to oblige the Government to stop resorting to eviction of trade unions from their offices, and to stop seizing training centres, trade union hotels, and health and tourist facilities that operate in the interests of workers.

B. The Government’s reply

1. 945. In a communication dated 13 March 2019, the Government provides the following observations. Concerning the legislative provisions regarding reporting on the financial activities of trade unions that were mentioned by the complainant, the Government believes that trade union organizations that have been legally recognized as legal persons should maintain accounts and submit financial reporting in accordance with the procedure set out in the legislation. It indicates that section 16 of the Law on Trade Unions establishes that from the moment that a charter (regulations) of a trade union is approved, the trade union association acquires the right of a legal person. Trade union organizations, which operate on the basis of their charter, also acquire the status of a legal person. The Government recalls that, according to section 23 of the Law of Ukraine on Public Associations, public associations with the status of a legal person, and the legal persons created by them (companies, enterprises), are required to maintain accounts and provide financial and statistical reporting, In addition, section 2 of the Law of Ukraine on Accounting and Financial Reporting establishes that this extends to all legal persons that were established in accordance with the legislation of Ukraine, regardless of their organizational and legal arrangements or their form of ownership. In the Government’s view, the above-mentioned provisions are not aimed at restricting the rights and guarantees of trade unions.
2. 946. As regards the submission of financial reporting to state statistics authorities by trade unions, the Government believes that trade unions that have legal personality must submit to the state statistics authorities, financial reporting that has been prepared according to the methodology and form approved by the corresponding orders of the Ministry of Finance. It refers again to section 2 of the Law of Ukraine on Accounting and Financial Reporting, and to section 7 of the Law of Ukraine on State Statistics, which states that state statistics authorities may use various sources of information to obtain statistical data. It also points out that using financial reporting data for statistical purposes is a generally accepted European practice, which aims to avoid burdening enterprises with statistical reporting, and reduces the financial and labour resources needed to carry out state statistical surveillance.
3. 947. Concerning compliance with the provisions of Conventions Nos 87 and 98 in practice, the Government first addresses the violations that allegedly occurred at the communal enterprise in the waste disposal industry. It recalls that section 6 of the Law on Trade Unions provides for the right of a citizen of Ukraine to voluntarily join and leave a trade union organization. It also informs that workers spoke about voluntary withdrawal from membership of the trade union organization at the General Meeting of the enterprise’s labour collective, which took place on 27 March 2017. It further indicates that section 12 of the charter of the trade union for workers in the housing and utilities sector of local industry and in public services for the population states that the voluntary decision to withdraw from the membership of a trade union is made individually on the basis of a personal statement from the member of the trade union, and is applied from the date that the statement was submitted. According to the Government, each worker from the above-mentioned enterprise personally wrote a statement about withdrawing from the membership of the trade union as of 1 April 2017 and, as a result, membership fees equivalent to 1 per cent of their monthly salary are no longer being deducted from their salary.
4. 948. As regards the alleged violations at the Government Contact Centre, the Government indicates that an inspection visit was conducted to verify compliance with labour legislation in the case of the dismissal of a member of the trade union committee, Mr Dovzhenko. However, the report of this inspection visit, which was triggered by an appeal from the FPU, did not show any violation of the current legislation. The Government further indicates that the Government Contact Centre adopted a new institutional staff structure for 2018. With a view to avoiding duplication of roles and in order to ensure a united approach, Mr Dovzhenko’s deputy director position, along with other similar positions, was withdrawn from the institution’s staff structure. The Government reports that the institution submitted a letter to the Chairman of its primary trade union organization to inform them of the planned reduction in the number of staff. In this letter, the institution indicated that, if it were necessary to hold consultations in accordance with the institution’s collective agreement concerning measures to prevent dismissals or the reduction of the number of staff to the minimum or to mitigate the adverse implications of any such reduction, a date would be set for those consultations. However, according to the acting director of the institution, no information and/or proposal was received from the Chairman of the primary trade union organization regarding the need to hold consultations – or other measures – with the employer concerning the introduction of the changes from 1 June 2018.
5. 949. The Government indicates that, according to section 252 of the Labour Code and section 41 of the Law on Trade Unions, the dismissal of members of the elected trade union authority of an enterprise, institution or organization, except in cases where the standard procedure applies, is permissible, with the prior consent of the elected authority of that trade union. It reveals that, on 20 March 2018, Mr Dovzhenko was offered the position of consultant with the organization’s complaints department, which he refused. The Government also points out that, according to section 43 of the Labour Code, the termination of an employment contract on the grounds set out in sections 40 and 41 can be carried out only with the prior consent of the elected authority of the primary trade union organization to which the worker belongs. However, the Government states that a decision of the primary trade union organization to refuse to give consent for the termination of an employment contract must be valid and that, if this is not the case, the worker can be dismissed without its agreement. It informs that letters from the primary trade union organization informed the institution’s acting director of its refusal to give consent for the dismissal while also providing an extract from the record of the meeting of its members. The Government explains that, in view of what the management of the institution considered an unjustified refusal of the primary trade union organization to give consent, and pursuant to sections 40 and 43 of the Labour Code, Mr Dovzhenko was dismissed from his position. It also reports the ruling of the Darnitsa District Court, which, on 27 September 2018, denied an appeal aiming to repeal the order concerning the dismissal and reinstate Mr Dovzhenko to his position.
6. 950. With regard to the observance of the rights of trade unions at the state enterprise in the civil aviation industry, the Government indicates that the Ukroboronprom State concern has repeatedly considered petitions submitted by the Chairman of the primary trade union of the Union of Aircraft Construction Workers of Ukraine at this state enterprise. Regarding the issues that were raised, it points out that due to the celebration of the 70th anniversary of the enterprise, only the labour collective and persons on the prepared lists were allowed entry into the territory. These lists were agreed upon with the Presidential Administration owing to the attendance of the President of Ukraine at the event. The Government notes that the Chairman of the primary trade union, Mr Smorodin, who is not a worker at the enterprise, did not appear on the lists, and information concerning his attendance at the event was not provided.
7. 951. The Government further indicates that, following the receipt of letters from Mr Smorodin, the Central Committee of the Trade Union created a commission to conduct a more detailed and impartial study of the case. It ultimately recommended that the primary trade union should organize and hold an early reporting and election conference, and drew the attention of the management of the enterprise to the inadmissibility of actions concerning interference in the activity of its primary trade union organization. The Central Committee also recommended to Mr Smorodin and representatives of the management of the enterprise that they implement constructive social dialogue in the enterprise in order to ensure a stable working relationship between the parties. The Government informs the Committee that, on 4 February 2019, Mr Smorodin was dismissed from his position as Chairman of the primary trade union organization. It reports that, according to the enterprise, the elected Chairman of the primary trade union organization, the trade union committee and the Union of Aircraft Construction Workers of Ukraine together are committed to constructive cooperation to: improve the culture of production; strengthen employee and executive discipline; and increase labour productivity and social standards for workers in the enterprise. It indicates that the relevant work in these areas has begun and that general measures are being developed.
8. 952. Concerning the property owned by the FPU, the Government indicates that, as of 24 August 1991, the Ukraine Republican Council of Trade Unions (hereinafter the Council of Trade Unions) took over the property of the enterprises, institutions and facilities located in Ukraine that were being managed by the All-Union Central Council of Trade Unions. It explains that the state property was transferred to the Council of Trade Unions, as evidenced by the Council of Ministers of the Ukrainian SSR Decree No. 606 of 23 April 1960 on the transfer of sanatoriums and rest houses of the Ministry of Health of the USSR to trade unions (hereinafter Decree No. 606), adopted in order to implement USSR Council of Ministers Decree No. 335 of 10 March 1960, according to which trade unions took over the management of sanatoriums, rest houses and other properties. However, it believes that, taking into account that this property was not actually transferred to the trade unions, the Council of Trade Unions, and its legal successor – the Federation of Independent Trade Unions of Ukraine – did not have the right to the independent regulation of this property, with regard to the change in its form of ownership. At that time, the USSR Constitution of 11 June 1937 was in force, and article 5 of that Constitution provided that socialist property in the Ukrainian SSR was either considered to be State property (national goods), or cooperative or collective farm property (property of separate collective farms or property of cooperative associations). The Government states that the Ministry of Health of the Ukrainian SSR transferred the property, free of charge, from the Ministry’s main department of health resorts, sanatoriums and rest houses to the trade unions, without changing the form of ownership of that property. Therefore, the trade unions were granted the right to manage this property, within the limits established by Decree No. 606.
9. 953. The Government further indicates that edict No. 1452-XII of 30 August 1991 of the Presidium of the Rada established that enterprises, institutions and organizations located in Ukraine became State property from the moment that the edict was passed; and that property agreements, which changed the form of ownership, that had been concluded during the moratorium established by the Decree of the Rada of 29 November 1990, were considered to be invalid. It also points out that the Rada Decree No. 3943-XII of 4 February 1994 establishes that, temporarily, until there is a legislative determination of the parties’ right to own property of the all-union public organizations of the former USSR located in Ukraine, the aforementioned property is considered to be State property. The Government informs that currently, at the legislative level, no definitive conclusion has been reached regarding the right of the parties to own property of the all-union public organizations of the former USSR located in Ukraine, and that a working group was created to discuss the possible ways to regulate these issues within the limits determined by Ukrainian legislation.
10. 954. The Government states that, within the framework of that working group, draft laws were developed to define the status of the property that is being maintained or under the ownership or use of trade union organizations of the former USSR. It explains that the State Property Fund of Ukraine and the FPU developed their respective draft laws, and that the working group reached an agreement on a common position and on the presentation of agreed legislative proposals to the Government. It believes that the adoption of a special law will make it possible to guarantee the right of trade unions to appropriate property to support the activities of trade union organizations, as well as the property interests of the State as owners of that property. The Government indicates that, until that special law can be adopted, questions concerning the right to ownership of that property are resolved according to court procedures. It stresses that, according to articles 124 and 126 of the Constitution and section 6 of the Judiciary and Status of Judges Act, in exercising justice, the courts are independent of any illegal influence, and that interference in the administration of justice is prohibited and entails liability as established by the law.
11. 955. As regards the property that was allegedly confiscated from trade unions following court rulings, the Government stresses that the right of ownership of the State – as represented by the State Property Fund – of the property of the all-union public organization of the former USSR, located in Ukraine, was recognized by means of Order No. 817. More precisely, the Government indicates that a claim was submitted by the Poltava Regional Trade Union Council regarding the property located in Poltava. The case is ongoing before the Kyiv District Administrative Court. It further indicates that on 27 November 2017, a ruling of the Economic Court of Zakarpattia Region determined that the Zakarpattia Regional Trade Union Council has used the disputed property located in Uzhgorod in the absence of any grounds established by legislation and has, without cause, avoided releasing the building. The Government also argues that the Zakarpattia Regional Trade Union Council currently receives funds for the use of State property, as approximately 15 organizations with various forms of ownership, including those that are State-owned, are located at that property on a leasehold basis. The Government reports that the FPU indicated that the issue of property in Poltava and Uzhgorod would be put before the Zakarpattia and Poltava Regional Councils of Trade Unions for a final decision and for the introduction of specific proposals concerning the determination of the surface area that is required by the trade unions.
12. 956. With regard to the alleged attempts by state authorities to seize legally owned property, the Government states that a process is under way to determine which body would be authorized to manage the property located in Chernihiv. It explains that, in applying the Chernihiv Region Prosecutor’s Office’s duty to protect the interests of the State concerning the above mentioned property, and in order to verify its intended use (including by other people), on 19 January 2018, a working group established by the Regional Branch of the State Property Fund conducted a visit to the location. However, it was not allowed to conduct the visit and the relevant documents were not provided. Regarding the property located in Odessa, the Government indicates that the claim of the first deputy prosecutor of Odessa Region in the interests of the State to own and recover the administrative property, was denied by the Economic Court of Odessa Region, and that this decision was upheld by the Odessa Economic Appeal Court and the Supreme Court. The Government states that, taking into account the above, the state authorities, in particular the State Property Fund, make decisions and take appropriate measures that take into account legislative requirements within the limits of their authority, in the manner set out by the Constitution, in order to meet the needs of the State and society.
13. 957. Regarding the building occupied by the Rassvet Hotel, the Government indicates that a ruling of the Economic Court of Dnipropetrovsk Region of 21 February 2012 recognized the State, as represented by the State Property Fund, as having ownership of that real estate, which was reclaimed from Dniprturist, the Dnipropetrovsk Region closed joint-stock company for tourism and excursions. The Government explains that, in order to implement the court ruling, the State Property Fund submitted a statement on the registration of rights and their encumbrances concerning the above-mentioned real estate property to the appropriate State registration authority. However, despite the above, a lease agreement was concluded between Dniprturist and the Union of Workers in the Metallurgical and Mining Industry for the period up to 12 March 2030. In turn, the State Property Fund appealed to the Higher Economic Court of Ukraine, which concluded that the lease agreement was invalid and, as a result, the Union of Workers in the Metallurgical and Mining Industry, which had not provided any constitutive documents concerning their registration of this real estate, was evicted from the premises.
14. 958. The Government concludes by indicating that, according to the National Police of Ukraine, the criminal proceedings that have resulted from information provided by the complainant organization were eventually closed based on section 284 of the Criminal Procedure Code in the absence of a criminal offence.

C. The Committee’s conclusions

1. 959. The Committee notes that, in the present case, the complainant organization alleges gross and systematic violations by Ukrainian public authorities, courts and employers of the right of trade unions to freely and independently organize their activities, both in law and in practice.
2. 960. The Committee notes the FPU’s indication that two existing legislative provisions, section 2 of the Law of Ukraine on Accounting and Financial Reporting and section 16 of the Law of Ukraine on State Statistics, contradict other provisions of Ukraine’s legislation and Convention No. 87. In this regard, the Committee notes the Government’s indication that public associations with the status of a legal person are required to maintain accounts and provide financial and statistical reporting. In the Government’s view, these provisions are not aimed at restricting the rights and guarantees of trade unions. As regards the submission of financial reporting to state statistics authorities by trade unions, the Government believes that trade unions that have legal personality must submit, to the state statistics authorities, financial reporting that has been prepared according to the approved methodology. These provisions are not aimed at restricting the rights and guarantees of trade unions either, as using financial reporting data for statistical purposes is a generally accepted European practice. In the absence of more detailed information from the complainant as to the manner in which these provisions interfere with its rights, the Committee considers that this aspect of the case does not call for further examination.
3. 961. As regards the allegations of freedom of association violations in practice, the Committee notes the complainant’s allegation that a communal enterprise forced its workers to write statements that they were leaving the trade union and forced the head of the primary trade union organization to resign. While noting the Government’s observation that each worker followed the procedure provided for in the trade union’s charter by personally and voluntarily writing a statement to withdraw from the union, the Committee notes with concern that the Government does not reply to the allegations that these withdrawals were made under threat of dismissal. Recalling that any coercion of workers or trade union officers to revoke their union membership constitutes a violation of the principle of freedom of association, in violation of Convention No. 87 [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1198], the Committee trusts that the Government will review these specific allegations and will take the necessary measures to ensure the full respect for freedom of association.
4. 962. As regards the complainant’s allegation that a Government Contact Centre violated multiple sections of the Law on Trade Unions and the Labour Code, and whose acting director committed multiples acts of interference, the Committee notes the information provided by the Government that a member of the trade union committee was dismissed because his position was withdrawn as part of a new institutional staff structure, he refused an alternative post offered to him and the management considered that the trade union’s refusal to give consent to the termination was unjustified. The Committee observes however that the Government does not respond to a number of detailed allegations made by the complainant as to the anti-union actions taken by the acting director prior to the dismissal of the trade union officer. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers organizations shall have the right to elect their representatives in full freedom [see Compilation, para. 1117]. The Committee requests the Government to carry out an independent investigation into these allegations and, should it find that the employer had interfered in union activity, to take the necessary measures to ensure that these acts do not recur and to redress the damage suffered by the trade union leader and the union.
5. 963. As regards the allegations that a state enterprise in the civil aviation industry ignored its trade union’s request for information and denied the head of the trade union committee access to his workplace, the Committee notes the Government’s indication that the head of the trade union committee could not access his workplace during the 70th anniversary of the enterprise where the President would be attending because he was neither a worker nor invited to the event. Observing the Government’s indication that the Central Committee of the Trade Union had created a commission in order to conduct a more detailed and impartial study of the case and had ultimately recommended that the primary trade union should organize and hold an early reporting and election conference, while drawing the attention of the management of the enterprise to the inadmissibility of actions concerning interference in the activity of its primary trade union, the Committee notes that the head of the primary committee was replaced by the trade union and that an increased level of cooperation has occurred between the parties. In these circumstances, the Committee considers that this aspect of the case does not call for further examination.
6. 964. The Committee also takes note of the complainant’s allegation that Ukrainian public authorities confiscated trade union property by conducting illegal acts that subsequently formed the basis of court decisions. It notes its indication that buildings have been confiscated and nationalized in Poltava and Uzhgorod, and that attempts have been made to seize legally owned buildings in Chernihiv and Odessa. According to the complainant, these decisions are based on Orders of the Rada from 1992 and 1994 that ruled that temporarily, until the legal successors of all-soviet non-governmental organizations of the former USSR were determined, their property and financial assets situated in Ukraine should be transferred to the State Property Fund of Ukraine. It further notes its indication that, using the unlawful Order No. 817 of 7 October 2015 and the procedure that it subsequently approved, the Government distributes property belonging to trade unions that was transferred to the State by court decisions and, as a result, the finances of trade union organizations are depleted and they cannot carry out their work fully. According to the complainant, it has obtained the ownership rights on the property as a legal successor in November 1990, the above-mentioned Orders are not a source of law and therefore could not be referred to in courts, and these violations are part of a discriminatory approach on the property of trade unions. The Committee also notes its allegation that public authorities use private illegal mercenary groups to seize and take under physical control the property, as exemplified by a raid on a hotel in its possession in Dnipropetrovsk.
7. 965. The Committee notes that, according to the Government, as of 24 August 1991, trade unions took over the management of the sanatoriums, rest houses and other property of the all union public organizations of the former USSR located in Ukraine, as the Ministry of Health transferred them, free of charge, without changing the form of ownership. Therefore, the trade unions were only granted the right to manage this property within the limits established by Decree No. 606. Furthermore, Verkhovna Rada Decree No. 3943-XII of 4 February 1994 establishes that, temporarily, until there is a legislative determination of the parties’ ownership rights, the aforementioned property is considered to be State property. The Committee notes the Government’s indication that currently, at the legislative level, no definitive conclusion has been reached, as a working group was created to discuss the possible ways to regulate these issues within the limits determined by Ukrainian legislation and that, until a special law can be adopted, questions concerning the right to ownership of that property are resolved according to court procedures. It further notes, regarding the alleged confiscation and confiscation attempts of trade union property, the Government’s explanation that the right of ownership of the State, as represented by the State Property Fund, was recognized by means of Order No. 817, and that state authorities make decisions and take appropriate measures on the basis of legislative requirements within the limits of their authority. As regards the building occupied by the Rassvet Hotel, the Committee notes the Government’s indication that, in spite of a ruling that recognized the State’s ownership of that real estate, a lease agreement had been concluded between Dniprturist and the Union of Workers in the Metallurgical and Mining Industry; however, upon appeal by the State Property Fund, the Higher Economic Court of Ukraine concluded that the lease agreement was invalid and evicted the union from the premises.
8. 966. Concerning the ownership of the property currently in the possession of the FPU that was the property of the unions of the former USSR active in Ukraine, the Committee recalls that it has already been called upon to examine this matter in Case No. 2890, in which it invited the Government to engage in consultations with the trade union organizations concerned in order to settle the question of the assignment of property and requested the Government to provide information on the development of the situation. It further recalls that the complainant’s concerns were mostly about rest houses, resorts and sanatoriums and other lucrative undertakings, and that the Government had indicated that there was no intention to strip the FPU of all of its property, or the property that it had legally acquired or purchased, but rather to settle the issue of the disputed property of the former USSR trade unions which was in the FPU’s possession. While the Committee observes once again that the State’s intervention in respect of the devolution of trade union assets is not necessarily incompatible with the principles of freedom of association, it regrets that multiple cases relating to this issue are still pending in courts, that confiscation of property has occurred, and that no definitive conclusion has been reached regarding the ownership rights of the parties. The Committee notes, however, the creation of a working group to discuss the possible ways to regulate this issue and invites the Government to engage in consultations with the trade union organizations in order to find a mutually agreeable solution. It requests the Government to provide information on the development of the situation and, in particular, on any agreement which may be reached in this respect.

The Committee’s recommendations

1. 967. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee trusts that the Government will review the specific allegations raised in the case concerning a communal enterprise and will take the necessary measures to ensure the full respect for freedom of association.
   • (b) The Committee requests the Government to carry out an independent investigation into the alleged violations of trade union rights at a Government Contact Centre and, should it find that the employer had interfered in union activity, to take the necessary measures to ensure that these acts do not recur and to redress the damage suffered by the trade union leader and the union.
   • (c) As regards the question of ownership of the property currently in the possession of the FPU that was the property of the unions of the former USSR active in Ukraine, the Committee notes the creation of a working group to discuss the possible ways to regulate this issue and invites the Government to engage in consultations with the trade union organizations in order to find a mutually agreeable solution. It requests the Government to provide information on the development of the situation and, in particular, on any agreement which may be reached in this respect.