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

Other comments on C087

Observation

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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.