Report in which the committee requests to be kept informed of development - REPORT_NO342, June 2006

918. The Committee last examined this case at its June 2005 meeting [see 337th Report, paras. 1274-1377]. The Confederation of Free Trade Unions of Ukraine (CFTUU) sent new allegations in communications dated 15 July and 5 September 2005, as well as in communications dated 9 and 14 March 2006. The Federation of Trade Unions of Ukraine (FPU) forwarded additional information in a communication of 27 September 2005.

1. 919. The Government sent its observations in communications dated 28 July, 9 August, 2 September, 21 October, 11 and 23 November, and 29 December 2005, as well as in a communication dated 31 January 2006.
2. 920. 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. Previous examination of the case

1. 921. At its June 2005 meeting, the Committee made the following recommendations in relation to this case [see 337th Report, para. 1377]:
2. (a) The Committee recalls that the rights of workers’ organizations can only be exercised in a climate that is free from pressure of any kind against the leaders and members of these organizations, and it is for governments to ensure that this principle is respected. The Committee further considers that bodies responsible for investigation of allegations of violation of trade union rights should enjoy independence from the authorities against which the allegations were submitted. The Committee therefore requests the Government to take the necessary measures so as to ensure that any further allegations of trade union intimidation or harassment by the SBU are investigated by an independent body having the confidence of the parties concerned and that the SBU will refrain in future from any anti-union discrimination activities.
3. (b) The Committee requests the Government to indicate whether any measures have been taken in respect of trade union organizations as a result of Interim Report No. 5535 of the Temporary Commission of Inquiry of Verkhovna Rada of Ukraine on issues related to establishing of evidence of foreign interference into financing of the election campaign in Ukraine through non-governmental organizations operating on grants of foreign States, which treats free trade unions as political organizations carrying out the order of foreign agents.
4. (c) The Committee requests the Government to institute an independent investigation into the allegations of interference in the internal affairs of the All-Ukrainian Trade Union of State Agencies’ Employees and to keep it informed in this respect.
5. (d) The Committee requests the Government to ensure that those trade unions of the Western Donbass Association of the NPGU which suffered material damage due to the illegal search are compensated without delay.
6. (e) The Committee trusts that the commission mandated to investigate the alleged violations of trade union rights at the “Postnikovskio”, “Pervomai”, “Vinintzkouo”, “Shahtersko-glubokoe”, “Duvannaya” and “Zolotoye” mines, as well as at the “Test Donetskuglestroy” Ltd. Enterprise will be independent. It further requests the Government to keep it informed on the results of the work of the commission.
7. (f) The Committee requests the Government to conduct an independent inquiry into the allegations of the anti-union campaign which allegedly took place at the “Imeni Shevchenko” locomotive depot and to keep it informed in this respect.
8. (g) The Committee requests the Government to provide a copy of the minutes of the meeting of 2 April 2004, during which, according to the Government, all problematic issues that had arisen at the “Krivorozhsky” plant were settled by the representatives of the provincial state administration, the management of the plant and trade unions.
9. (h) The Committee requests the Government to conduct an independent investigation into the allegation that at the “Orzhitsky” sugar refinery plant, 115 workers left the union under pressure by the employer and to keep it informed of the outcome.
10. (i) The Committee requests the Government to carry out an independent investigation into the allegations of an anti-union campaign carried out by the management of McDonald’s and, if it is found that workers were indeed harassed and intimidated in an attempt to dissuade them from becoming members of a union, to take suitable measures to redress the situation and to ensure that workers may effectively exercise their fundamental right to organize. It requests the Government to keep it informed in this respect.
11. (j) The Committee requests the Government to conduct an independent inquiry into the allegation of creation by the management of the “Svesky Nasosny Zavod” enterprise of a puppet union controlled by it and to keep it informed in this respect.
12. (k) The Committee requests the Government to conduct an independent inquiry into the allegation of interference by the management of the “Gruzavtoservice” enterprise in the election of trade union officers and to keep it informed in this respect.
13. (l) The Committee requests the Government to conduct independent inquiries into the allegations of anti-union dismissals at the “Knyagynskaya” mine, the State Agrarian technical secondary school of Alexandria City and the “Tomashpilsakhar” enterprise, and to keep it informed in this respect. The Committee expects that the case concerning Mr. Komissarov, the chairperson of the union at the “Promproduct” enterprise, will be examined without delay and requests the Government to keep it informed in this respect. Furthermore, the Committee requests the Government to indicate whether, in the case of dismissal of Mr. Dzyubko, the relevant procedures for dismissal of a trade union leader provided for in the Labour Code were followed.
14. (m) The Committee requests the Government to institute immediately an independent judicial inquiry into the allegations of physical assaults on Mr. Shtulman, Mr. Fomenko and Mr. Kalyuzhny with a view to fully clarifying facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. The Committee requests the Government to keep it informed of any development regarding these cases, as well as the criminal investigation regarding the abduction and physical assaults on Mr. Volynets’ son.
15. (n) As concerns the allegations of denial of certain facilities to trade unions, the Committee requests the Government to:
16. – inform the Committee whether the primary trade unions of the complainants’ organizations at the “Partizanskaya” mine, the “Krivoy Rog Steal” enterprise and the “Orzhitsky” sugar refinery plant were provided with office space;
17. – reply to the allegation of suspension of check-off facilities at the “Tomashpilsakhar” enterprise;
18. – reply to the allegation of violation of the right of the trade union representative to access the workplace at the “Svesky Nasosny Zavod” enterprise;
19. – to indicate whether trade union dues deducted from workers’ wages during 2002-03 were duly paid to the FPU-affiliated trade unions;
20. – to indicate whether the telephone lines were reconnected in the office of the trade union organization at the “Microprylad” Ltd. Enterprise.
21. (o) With regard to the alleged instances of revocation of trade union registration:
22. – the Committee requests the Government to provide information in respect of the revocation of registration of the NPGU primary organization at the “Krasnolimanskaya” mine;
23. – the Committee requests the Government and the complainants to provide further information concerning the reasons for the dissolution of the trade union at the locomotive depot “Imeni Shevchenko” and the All-Ukrainian Trade Union of Football Players;
24. – the Committee requests the Government to take the necessary measures so as to ensure that the trade union at the “Azovstal” enterprise is re registered;
25. – the Committee requests the Government to keep it informed of the court decision as concerns the registration of the Federation of Free Trade Unions of Lvov Railways and to provide a copy of the judgement.
26. (p) Recalling that collective agreements should be binding on the parties, the Committee requests the Government to keep it informed of the conclusions reached by the commission set up to examine the allegations of violations of trade union rights by the management of the “Partizanskaya” mine (“Antratsit” coal company) and of the “Stakhanova” mine (“Krasnoarmeyskugol” enterprise).
27. (q) The Committee requests the Government to reply to the complainants’ allegation that the administration of the maritime commercial port of Ilyichevsk refuses to bargain collectively with the Independent Trade Union of Workers of the Maritime Commercial Port of Ilyichevsk.
28. (r) Recalling that, where cases of alleged anti-union discrimination are involved, the competent authorities dealing with labour issues should begin an inquiry immediately and take suitable measures to remedy any effects of anti-union discrimination brought to their attention, the Committee trusts that the Government will rapidly take the necessary measures to investigate the remaining allegations and to ensure that any effects of anti-union discrimination and interference are appropriately and adequately remedied.
29. (s) The Committee requests the Government to provide its observations on the allegations of violation of trade union rights at the “Ordzhonikidze” and “Novodonetskaya” mines, “Meridian” international school, “Ilyich” metallurgical enterprise, “Krasnoarmeyskiy dinasovoy zavod” enterprise and “Krasnolimanskaya” coal company.
30. (t) The Committee requests the Government to solicit information from the employers’ organizations concerned, with a view to having at its disposal their views, as well as those of the enterprises concerned, on the questions at issue.
31. B. New allegations
32. 922. In its communication dated 15 July 2005, the Confederation of Free Trade Unions of Ukraine (CFTUU) alleges that the management of the “Korosten’s Porcelain” enterprise had launched an anti-union campaign against the primary trade union of the All-Ukrainian Trade Union “Defence of Justice”, a CFTUU affiliate. In particular, the management of the enterprise refused to provide the trade union with premises and check-off facilities, and did not allow the union to participate in collective bargaining and sign a collective agreement.
33. 923. In its communication of 5 September 2005, the CFTUU further alleges that the primary trade union of the “Nikopol South-Pipe Plant” enterprise was not included, along with other trade union representatives, in the working group created to make proposals as to the efficiency of the enterprise. By the same communication, the CFTUU alleges that the management of the “Marganets ore mining and processing” enterprise refused to recognize the primary trade union of the Independent Trade Union of Miners of Ukraine (NPGU) and had launched an anti-union campaign to destroy the union by pressurizing trade union members and threatening them with dismissals.
34. 924. By its communication dated 27 September 2005, the Federation of Trade Unions of Ukraine (FPU) informs that all outstanding issues at “Mikroprylad” Ltd., “Gruzavtoservice” and “Svessky Nasosniy Zavod” enterprises were resolved. The previous conflict in relation to interference in the internal affairs of the All-Ukrainian Trade Union of State Agencies’ Employees was also resolved. As concerns the allegations of suspension of check-off facilities at the “Tomashpilsakhar”, “Brodecke” and “Brodecke sugar refinery plant” enterprises, the FPU states that, according to the replies it had received from the Office of the Prosecutor, those were the questions to be resolved in court. However, the primary trade unions of these enterprises have no sufficient means to address the courts.
35. 925. In its communication of 9 March 2006, the CFTUU alleges that the management of the Oil Investment Company of Lysychansk city does not recognize the newly created free trade union “Oktan”. More speficially, the complainant alleges that the management has put pressure on trade union members and its chairperson by threatening them with dismissals and not granting access to the premises of the enterprise to the chairperson of the union. Furthermore, the director of the enterprise has refused to confirm the legal address of the trade union needed for trade union legalization. In its communication of 14 March 2006, the CFTUU further alleges that the management of the boarding school of Sosnytsia city refuses to recognize the primary trade union of the Free Trade Union of Education and Science of Ukraine, the CFTUU’s affiliate, puts pressure on trade union members, threatens them with dismissals and prohibits the holding of trade union meetings.
36. C. The Government’s reply
37. 926. In its communications of 28 July, 9 August, 2 September, 11 and 23 November and 29 December 2005, the Government provides its observations regarding the following recommendations of the Committee and the specific enterprises mentioned therein.
38. Recommendation (a)
39. Security Service of Ukraine (SBU)
40. 927. Under section 12 of the Law on Trade Unions, trade unions and their associations are independent from the Government, local authorities, employers, political parties and other public associations. Under the national legislation, governmental bodies, local authorities, public officials, employers and their associations are forbidden from interfering in trade union activities. Furthermore, trade unions have a right to address judicial authorities to defend their rights and interests. With regard to the specific allegation of interference by the SBU in internal trade union affairs, the Government reiterates that following an inquiry carried out by the SBU, no instances of interference by officials of the Service in the activities of trade unions in Ukraine have been established.
41. Recommendation (e)
42. “Vinnitskaya”, “Postnikovskaya” and
43. “Shakhtersko-glubokoe” mines
44. 928. Following a meeting with the chairperson of the Shakhtyorsk City Organization of the NPGU with regard to the allegations of violations of trade union rights, it was established that in 2004, a dispute arose with the former director-general of the “Shakhtyorskantratsit” deep mining enterprise concerning his refusal to provide an office to the union within the holding’s premises. The dispute has been resolved since then. No other violations of trade union rights were revealed.
45. “Duvannaya” mine
46. 929. An inspection carried out on 1 November 2005 revealed that two unions existed at the mine: the coal industry workers’ union and the NPGU primary trade union. A collective agreement was concluded between the management and the joint trade union representative body. Pursuant to the collective agreement, both unions were allocated funds for cultural and recreational activities. Appropriate conditions, such as check-off facilities, were also created so as to ensure that both unions could carry out their activities.
47. “Zolotoye” mine
48. 930. An inspection, which took place on 31 October 2005, established that two unions existed at the enterprise. Labour, industrial and socio-economic relations at the mine were governed by a collective agreement between the management and workers represented by the president of the Pervomaisk regional trade union committee, the regional division of the NPGU of the city of Pervomaisk and the executive office of the NPGU. The inspection found, however, that, in violation of the collective agreement, the management did not make monthly payments for cultural and recreational activities and made only a one-time payment of 1,000 gryvnas to each organization in 2005. The management was therefore ordered to rectify the violations of the labour legislation.
49. “Donetskuglestroy Trest” Ltd.
50. 931. An inspection carried out at the enterprise revealed that workers were represented by a joint trade union committee of the enterprise. According to its president, the trade union organization had never filed a complaint with the ILO.
51. Recommendations (f), (l) and (o)
52. Locomotive depot “Imeni Shevchenko”
53. 932. In its communication of 11 November 2005, the Government indicates that the Cherkasskaya regional state labour inspectorate carried out an inspection into the allegations of an anti-union campaign at the locomotive depot, the allegations of anti-union dismissal of Mr. Dzyubko, president of the independent trade union, and revocation of trade union registration. The inspection established that Mr. Dzyubko was dismissed on 16 January 2004 for unauthorized absence, in accordance with section 40(4) of the Labour Code. The management of the locomotive depot consulted the trade union committee representing railway and transport construction workers to seek its agreement to the dismissal. The trade union committee examined the case, despite the fact that Mr. Dzyubko had announced his intention to leave the union on 30 December 2003, and agreed to the dismissal. On 30 December 2003, the management of the enterprise received a certificate, dated 23 December 2003, from the Justice Department concerning the registration of the free trade union of railway workers of Ukraine, of which Mr. Dzyubko was a member. Mr. Dzyubko considered his dismissal to be unlawful and applied to the court for reinstatement. The Smelyansk municipal court rejected his application on 5 March 2004. The Cherkasskaya regional appellate court in its ruling of 28 May 2004 upheld the decision of the Smelyansk court. Furthermore, the investigation established that the free trade union was set up by decision of a general meeting (records of the meeting, No. 1, 17 November 2003). Mr. Dzyubko was elected chairperson of the trade union committee; three other persons were elected committee members. However, no applications from other workers to join the primary trade union organization were received. Mr. Dzyubko had later acknowledged that he wrote all the records of the union committee’s meetings, forging the signatures of all committee members. When Mr. Dzyubko’s contract of employment was terminated, the trade union organization disintegrated.
54. 933. In its communication dated 29 December 2005, the Government states that the free trade union was dissolved following a decision taken by trade union members at a meeting of 22 January 2004. It further states that the original record of the meeting of the free trade union is part of the evidence submitted in case No. 22458 concerning Mr. Dzyubko’s dismissal, which is currently being considered by the Supreme Court. In addition, the Cherkassk authorities set up an independent district commission, which included representatives of trade unions and employers’ organizations, heads of departments of the National Mediation and Conciliation Service and regional state labour inspectorate. The commission found that according to Mr. Dzyubko, at the time of registration, there were 15 union members and only five members were still remaining. However, he did not provide the list of the union’s members.
55. Recommendations (g) and (n)
56. “Krivoy Rog Steal” (“Krivorozhsky” plant)
57. 934. The territorial state labour inspectorate carried out an inspection at the enterprise and concluded that the allegations contained in the CFTUU’s communication concerning interference in the activity of the primary trade union of the NPGU at this enterprise were not supported by documentary evidence. Furthermore, a working group including representatives of employers, trade unions and regional and local executive bodies, established to examine allegations concerning violations of trade union rights set out in Case No. 2388, did not find any evidence of violations of trade union rights. The Government further states that in 2001, the NPGU was provided with a fully equipped office.
58. Recommendations (h) and (n)
59. “Orzhitsky” sugar refinery plant
60. 935. An investigation into the allegations of violations of trade union rights was carried out by the executive authorities and the legal services with the participation of Mr. Krazhan, the president of the independent trade union. The investigation did not confirm any instances of pressure exerted on workers by their employer to leave the union. The allegation that 115 workers were forced to withdraw from their union membership was not confirmed. A fully equipped office was provided to the independent trade union free of charge.
61. Recommendation (k)
62. “Gruzavtoservice” enterprise
63. 936. In its communication of 2 September 2005, the Government states that the regional state labour inspectorate carried out an inspection into the allegations of interference by the management in the election of a trade union committee. No evidence of such interference was found. As a result of voluntary resignations, the number of workers at the enterprise has declined significantly. In September 2005, the trade union organization dissolved itself and ceased to operate.
64. 937. In its communication of 29 December 2005, the Government submits that the chairperson of the union and members of the union committee dismissed in August 2003 have been reinstated following a court ruling of May 2004.
65. Recommendation (l)
66. Aleksandrovsk State Technical College of Agriculture
67. 938. With regard to the allegation of anti-union dismissal, the Government states that the dismissal of Ms. A.V. Polivoda was well founded, as confirmed by the Court of Appeal of the Kirovograd region on 13 July 2005.
68. Recommendation (n)
69. “Partizankaya” mine
70. 939. The inspection which took place on 31 October 2005 established that two trade union organizations existed at the mine: one affiliated to the union of mining industry workers and the other to the NPGU. Appropriate conditions enabling them to carry out their activities were created for both trade unions.
71. “Svesky Nasosny Zavod”
72. 940. The Government confirms the declaration of the FPU that all previously raised issues were resolved.
73. “Tomashpilsakhar” enterprise
74. 941. In its communication of 2 September 2005, the Government indicates that, according to the information provided by the public prosecutor of the Vinnitsk region, no trade union organization exists at that enterprise. According to the information provided by the enterprise, workers are represented by an authorized representative, who concludes a collective agreement with the management on behalf of the enterprise staff. Therefore, no trade union dues are withheld from the workers’ salaries. Furthermore, in a communication of 29 December 2005, the Government indicates that a working party composed of the representatives of the joint trade union of sugar industry workers, the “Podillyasakhar” association, employers, and the chief directorate of labour and social protection of the regional administration was set up to examine the recommendations of the Committee on Freedom of Association with a view to carrying out an independent investigation. The investigation failed to establish the existence of a dispute between workers’ representatives and the employer.
75. Recommendation (o)
76. “Krasnolimanskaya” mine
77. 942. In respect of the alleged revocation of trade union registration, the Government indicates that, by a decision of the economic court of the Donetsk region (case No. 19/32A of 29 April 2003), the registration of the primary organization of the NPGU was revoked as no members of that union worked at the mine.
78. “Azovstal” enterprise
79. 943. According to the Government, the Donetsk regional state labour inspectorate has established that at this enterprise, workers were represented by the MK Azovstal primary trade union organization of the Ukraine Metal Workers’ and Miners’ Union, registered on 28 January 2000 and re-registered on 4 March 2003. This primary trade union organization is one of the parties to the collective agreement for 2003-04. Management of the enterprise was not informed of the establishment, registration or existence of any other trade union at the enterprise.
80. “Lvov Railways”
81. 944. As regards the registration of the FPU-affiliated trade union at this enterprise, it was confirmed by the economic court on 22 May 2003 (case No. 1/649-39/322) that the registration was effectuated in violation of the legislation. By its ruling of 22 September 2003, the Lvov Appellate Court modified the economic court ruling by upholding the Federation’s counterclaim. Both these rulings were overturned by the higher economic court on 17 March 2004, and the case was referred for re-examination to the Lvov district economic court which, on 8 August 2005, considered that the dispute in question did not come under the jurisdiction of the economic court. This decision was appealed by the “Lvov Railways”. A hearing has been scheduled for 22 November 2005.
82. Recommendation (p)
83. “Partizanskaya” and “Knyaginskaya” mines
84. 945. In its communication of 28 July 2005, the Government indicates that, according to the territorial state labour inspectorate, while trade unions, including the NPGU, benefited from check-off facilities at these enterprises, violations of the collective agreements were found as to the non-payment of funds for cultural, sports and health activities to the independent trade unions. The management of the enterprises was therefore ordered to eliminate these violations of the collective agreement. A report of an administrative offence was filed with the court in accordance with section 41-2 of the Code of Administrative Offences.
85. 946. In its communication of 11 November 2005, the Government states that a further inspection, which took place on 31 October 2005, established that in 2005, 116,82 gryvnas were paid to the NPGU for cultural, sport and recreational activities.
86. “Stakhanova” mine
87. 947. With regard to the failure to comply with section 44 of the Law on Trade Unions, the sectoral agreement and the collective agreement to transfer 1 per cent of the wage fund to the trade union committee of the NPGU for cultural and sport activities, the Government states that due to the financial difficulties faced by the enterprise in 2005 only a part of the amount due was transferred.
88. Recommendation (q)
89. Ilyichevsk Maritime Commercial Port
90. 948. In its communication of 28 July 2005, the Government indicates that the inspection carried out by the territorial state labour inspectorate established that five trade union organizations were active in the port. Disagreements on the question of representation had arisen between the Independent Trade Union of Workers of Ilyichevsk Maritime Commercial Port and a joint trade union body set up to conclude a collective agreement. The Government states that under section 4 of the Law on Collective Agreements, representative bodies should be set up on the basis of proportional representation. Due to the small size of their organization, the representatives of the Independent Trade Union of Workers of Ilyichevsk Maritime Commercial Port expressed their disagreement as to the composition of the joint trade union body. As of 25 June 2005, no joint representative body had been set up.
91. 949. In its communication of 29 December 2005, the Government submits that in April 2005, trade unions, including the Independent Trade Union of Workers of Ilyichevsk Maritime Commercial Port, established a single representative body for the purpose of negotiating a collective agreement. In May 2005, the port administration presented a draft of the collective agreement to the chairperson of the working committee responsible for negotiating a collective agreement for 2005-08. The collective agreement will be finalized and adopted at a meeting of the workforce after the adoption of a branch agreement for 2006-07. Currently, the collective agreement concluded for the period 2001-04, with appropriate changes, was still in force.
92. Recommendation (s)
93. “Novodonetskaya” mine
94. 950. In its communication of 9 August 2005, the Government indicates that according to the information received from the main directorate for labour and social protection of the Donetsk regional state administration, the wage arrears that caused the strike at the enterprise have been reduced by 57.1 per cent.
95. 951. Furthermore, Mr. Stepanets, former president of the NPGU trade union at the mine, resigned from his job on 4 May 2005.
96. 952. In its communication of 2 September 2005, the Government indicates that no evidence of the alleged instances of pressure on the trade union leaders and members had been found. Moreover, the NPGU primary trade union was provided with separate office space. To further examine the complainant’s allegations, on 12 August 2005, a meeting was held between the trade union committee of the NPGU and the mine management during which it was decided to conclude an agreement of cooperation between the mine administration and the union.
97. “Meridian” international school
98. 953. The dispute between the administration of the school and the trade union committee has been resolved. According to a written explanation from the director of the school, the administration, concerned with the need to improve the school image, has no objection to the establishment of a trade union organization, and is ready to cooperate with the union. The trade union committee has been offered appropriate premises.
99. “Krasnolimanskaya” coal company
100. 954. With regard to the allegations of anti-union discrimination suffered by Mr. Suk following his joining of the NPGU, the Government indicates that he resigned from his job on 18 July 2005.
101. “Krasnoarmeyskiy dinasovy zavod” enterprise
102. 955. An investigation found no evidence to support the allegations of violation of trade union rights at this enterprise. The independent trade union “Defence of Justice” was provided with a fully equipped office. The newspaper of the union can be displayed at the enterprise entrance. Members of the union “Defence of Justice” systematically attend seminars, meetings and other events held at the plant.
103. 956. In its communication of 21 October 2005, the Government replies to the recent allegations submitted by the CFTUU in its communication of 5 September 2005. The Government informs that pursuant to Instruction No. 37339/114/1-05 of 29 August 2005 of the Cabinet of Ministers of Ukraine, the Dnepropetrovsk regional state administration agreed to include the chairperson of the independent trade union of the “Nikopol South-Pipe Plant” as a member of the working party responsible for preparing concerted conclusions and proposals concerning the prospects for effective work of the company.
104. 957. In its communication of 31 January 2006, the Government submits that the Central Administration for Labour and Social Protection of the Zhitomir Provincial State Administration has investigated the allegations submitted by the CFTUU in its communication of 15 July 2005. The investigation included a visit to the “Korosten’s Porcelain” enterprise on 11 October 2005. It was established that, at the time of the inspection, all violations of trade union rights by the management have been rectified. The directors of the enterprise have provided premises to the primary trade union of the All-Ukrainian Trade Union “Defence of Justice”. The requests by the union members to deduct trade union membership dues have been accepted. The enterprise trade unions have been invited to form a unified representative body to bargain with the management with a view to concluding a collective agreement for the next period. The Chairperson of the union, Mr. Shevchuk, stated that he currently had no complaints about the management of the “Korosten’s Porcelain” enterprise.

D. The Committee’s conclusions

1. 958. The Committee recalls that this case concerns allegations of interference by the Ukrainian authorities and employers of various enterprises in trade union internal affairs, dismissals, intimidation, harassment and physical assaults on trade union activists and members, denial of facilities for workers’ representatives and attempts to dissolve trade unions.
2. Interference by the authorities in
3. trade union internal affairs
4. 959. With regard to the allegation of interference in internal trade union affairs of the All-Ukrainian Trade Union of State Agencies’ Employees, the Committee notes with interest that in its communication of 27 September 2005, the Federation of Trade Unions of Ukraine (FPU) informs that the previous conflict in relation to interference in the internal affairs of the All-Ukrainian Trade Union of State Agencies’ Employees was resolved.
5. 960. The Committee regrets, however, that the Government provides no information on whether appropriate compensation was paid to those trade unions of the Western Donbass Association of the Independent Trade Union of Miners of Ukraine (NPGU), which suffered material damage due to the illegal search, as had been requested by the Committee. It therefore requests the Government to keep it informed in this respect.
6. Interference by the employers in
7. trade union internal affairs
8. 961. The Committee notes that according to the information provided by the Government, the dispute between the management of “Shakhterskantratsit” deep mining enterprise (“Vinnitskaya”, “Postnikovskaya”, “Shakhtersko-glubokoe” and “Pervomai” mines) was resolved. The dispute at the “Duvannaya” mine was also resolved. It also notes that according to the inspection carried out at the “Donetskuglestroy Trest” Ltd., workers of this enterprise are represented by a joint trade union committee. According to the Government, the president of the trade union organization had never filed a complaint with the ILO. Furthermore, the Committee notes that a labour inspection concluded that the management of the “Zolotoye” mine had violated the clause of the collective agreement concerning monthly transfers of payment for cultural and recreational activities. Noting that the management of the mine was ordered to rectify the violations found, the Committee requests the Government to indicate whether all due amounts are now being paid to the union on a monthly basis, as stipulated by the collective agreement.
9. 962. The Committee further notes that according to the Government, the allegations of an anti-union campaign at the locomotive depot “Imeni Shevchenko” were not confirmed by the inspections set up to examine these allegations carried out by the regional state labour inspectorate and an independent commission which included representatives of trade unions, employers’ organizations, the regional state labour inspectorate and the National Mediation and Conciliation Service.
10. 963. The Committee also notes the Government’s statement that the territorial state labour inspectorate carried out an inspection at the “Krivorozhsky” plant (“Krivoy Rog Steal”) and concluded that the CFTUU’s allegations of interference in the activity of the NPGU primary trade union were not supported by documentary evidence. Furthermore, a working group including representatives of employers, trade unions, and regional and local executive bodies established to examine allegations concerning violations of trade union rights set out in Case No. 2388 did not find any evidence of violations of trade union rights at this enterprise. The Committee recalls that it had requested the Government to provide a copy of the minutes of the meeting of 2 April 2004, during which, according to the Government, all problematic issues that had arisen at the “Krivorozhsky” plant were settled by the representatives of the provincial state administration, the management of the plant and trade unions. As the requested document was not provided by the Government, the Committee is bound to reiterate its request.
11. 964. The Committee notes the Government’s statement that an investigation with regard to the alleged violations of trade union rights at the “Orzhitsky” sugar refinery plant was carried out by the executive authorities and the legal services with the participation of Mr. Krazhan, the president of the independent trade union. The investigation did not confirm any instances of pressure exerted on workers by their employer to leave the union. The allegation that 115 workers were forced to withdraw their trade union membership was not confirmed either.
12. 965. The Committee regrets that no information was provided by the Government in respect of the allegations of an anti-union campaign carried out by the management of McDonald’s. It therefore reiterates its previous request to carry out an independent investigation into the allegations of an anti-union campaign carried out by the management of McDonald’s and, if it is found that workers were indeed harassed and intimidated in an attempt to dissuade them from becoming members of a union, to take suitable measures to redress the situation and to ensure that workers may effectively exercise their fundamental right to organize. It further requests the Government to keep it informed in this respect.
13. 966. The Committee notes with interest the FPU’s statement that all outstanding issues at the “Svesky Nasosny Zavod” and the “Gruzavtorservice” were resolved.
14. Dismissals
15. 967. The Committee recalls that anti-union dismissals allegedly took place at the “Knyagynskaya” mine, the Aleksandrovsk State Technical College of Agriculture, the “Tomashpilsakhar” enterprise and the “Promproduct” enterprise and that allegedly, in the case of dismissal of Mr. Dzyubko (locomotive depot “Imeni Shevchenko”) the relevant procedures for dismissal of a trade union leader provided for in the Labour Code were not followed.
16. 968. The Committee notes that according to the information provided by the Government, the Court of Appeal found no violation of labour legislation in the case of the teacher’s dismissal from the Aleksandrovsk State Technical College of Agriculture. The Committee requests the Government to provide a copy of this decision.
17. 969. The Committee regrets that no information was provided on the remaining alleged cases of anti-union discrimination and therefore requests the Government to provide information on the outcome of the independent inquiries into the allegations of anti-union dismissals at the “Knyagynskaya” mine, the “Tomashpilsakhar” and “Promproduct” enterprises.
18. 970. The Committee further notes that according to the information provided by the Government, Mr. Dzyubko was dismissed on 16 January 2004 for unauthorized absence, in accordance with section 40(4) of the Labour Code. The management of the locomotive depot consulted the trade union committee representing railway and transport construction workers to seek its agreement to the dismissal. The trade union committee examined the case, despite the fact that Mr. Dzyubko had announced his intention to leave the union on 30 December 2003, and agreed to the dismissal. On 30 December 2003, the management of the enterprise received a certificate, dated 23 December 2003, from the Justice Department concerning the registration of the free trade union of railway workers of Ukraine, of which Mr. Dzyubko was a member. Mr. Dzyubko considered his dismissal to be unlawful and applied to a court for reinstatement. The Smelyansk municipal court rejected his application on 5 March 2004. The Cherkasskaya regional appellate court in its ruling of 28 May 2004 upheld the decision of the Smelyansk court. This case was now before the Supreme Court. The Committee requests the Government to keep it informed of the court decision in this case.
19. Physical assaults
20. 971. The Committee regrets that no information was provided by the Government on the alleged physical assaults on Mr. Shtulman, Mr. Fomenko and Mr. Kalyuzhny and the abduction and physical assaults on Mr. Volynets’ son. It therefore once again requests the Government to institute immediately an independent judicial inquiry into the allegations of physical assaults on Mr. Shtulman, Mr. Fomenko and Mr. Kalyuzhny with a view to fully clarifying facts, determining responsibility, punishing those responsible and preventing the repetition of such acts. It requests the Government to keep it informed of any development regarding these cases, as well as the criminal investigation regarding the abduction and physical assaults on Mr. Volynets’ son.
21. Facilities for workers’ representatives
22. 972. The Committee notes the Government’s statement that the NPGU primary trade unions at the “Partizanskaya” mine, “Krivoy Rog Steal” enterprise and “Orzhitskiy” sugar refinery plant are provided with fully equipped premises.
23. 973. As regards the allegation of suspension of check-off facilities at the “Tomashpilsakhar” enterprise, the Committee notes that according to the FPU’s communication of 27 September, the issue of check-off facilities was not yet settled and that its primary trade union did not have sufficient means to file a complaint with a court. According to the information provided by the Government in its communication of 2 September 2005, workers of this enterprise are represented by an authorized representative, who concludes a collective agreement with the management on behalf of the enterprise staff. Therefore, no trade union dues are withheld from the workers’ salaries. Furthermore, in a communication of 29 December 2005, the Government indicates that a working party composed of the representatives of the joint trade union of sugar industry workers, the “Podillyasakhar” association, employers, and the chief directorate of labour and social protection of the regional administration was set up to examine the recommendations of the Committee on Freedom of Association with a view to carrying out an independent investigation. While noting that the investigation failed to establish the existence of a dispute between workers’ representatives and the employer, the Committee requests the Government to indicate whether the issue of suspension of check-off facilities has been settled.
24. 974. The Committee notes with interest that, as indicated by the FPU and the Government, all outstanding issues at the “Svessky Nasosniy Zavod” and “Microprylad” enterprises were resolved.
25. 975. With regard to the allegation of suspension of check-off facilities at the “Brodecke” and “Brodecke sugar refinery plant” enterprises, the Committee notes that the FPU states that the Office of the Prosecutor suggested to the union to file a complaint in court. Given the absence of means to do so, primary trade unions of these enterprises could not avail themselves of this possibility. The Committee regrets that no information was provided by the Government in this respect or in reply to the Committee’s previous recommendation. It therefore once again requests the Government to indicate whether trade union dues deducted from workers’ wages during 2002-03 at the “Brodecke” and “Brodecke sugar refinery plant” enterprises were duly paid to the FPU-affiliated unions and, if not, to take the necessary measures to ensure the transfer of these dues.
26. Trade union registration
27. 976. The Committee notes the Government’s statement that the registration of the NPGU primary organization at the “Krasnolimanskaya” mine was revoked by the economic court due to the absence of NPGU members at the enterprise. The Committee recalls that the complainants previously submitted that the economic courts had no competence to revoke trade union registration. The Committee regrets that no information was provided by the Government in this respect. It therefore once again requests the Government to provide its observations on the complainants’ allegations and to conduct an independent inquiry into this matter and to keep it informed of the outcome.
28. 977. The Committee recalls that it had previously requested the Government and the complainants to provide further information concerning the reasons for the dissolution of the trade union at the locomotive depot “Imeni Shevchenko”. The Committee notes the following information provided by the Government in respect of the dissolution of the trade union at the locomotive depot “Imeni Shevchenko”. In its communication of 11 November 2005, the Government indicates that the free trade union was set up by a decision of a general meeting (records of the meeting, No. 1, 17 November 2003). Mr. Dzyubko was elected chairperson of the trade union committee; three other persons were elected committee members. However, no applications from other workers to join the primary trade union organization were received. Mr. Dzyubko had later acknowledged that he wrote all the records of the union committee’s meetings, forging the signatures of all committee members. When Mr. Dzyubko’s contract of employment was terminated, the trade union organization disintegrated. In its communication dated 29 December 2005, however, the Government gives a slightly different version of the events stating that the free trade union was dissolved following a decision taken by trade union members at a meeting of 22 January 2004. The Government adds that the Cherkassk authorities set up an independent district commission, which included representatives of trade unions and employers’ organizations, heads of departments of the National Mediation and Conciliation Service and regional state labour inspectorate. The commission found that according to Mr. Dzyubko, at the time of registration, there were 15 union members and only five members were still remaining. However, he did not provide the list of the union’s members. Finally, the Government indicates that the issue of registration is a part of the case of Mr. Dsyubko’s dismissal, presently pending before the Supreme Court. The Committee requests the Government to provide a copy of the judgement once it is rendered.
29. 978. With regard to the dissolution of the All-Ukrainian Union of Football Players, the Committee once again requests the Government and the complainants to provide further information on the reasons for the dissolution, as well as on any further developments of its status.
30. 979. With regard to the dissolution of a trade union at the “Azovstal” enterprise, the Committee notes that the Government submits that at this enterprise, workers are represented by the primary trade union of the Ukraine Metal Workers’ and Miners’ Union and that the management of this enterprise was not aware of the establishment or existence of any other trade union. The Committee recalls that according to the complainants’ allegations, previously confirmed by the Government, the management of the “Azovstal” enterprise filed a suit with the Donetsk provincial economic court against the independent trade union of the “Azovstal” enterprise for unlawful use of the enterprise’s name. In its ruling of 29 December 2003, the economic court banned the independent trade union of the “Azovstal” enterprise from using the name of the plaintiff, “Azovstal”, in its title and ordered the union to make the necessary amendments to its statutes. As this was not done, the court ordered the compulsory dissolution of the public association. In view of the contradictory information provided by the Government in its different communications, the Committee requests it to examine this matter further and take the necessary measures, in accordance with its previous recommendations, to ensure that the independent trade union of the “Azovstal” enterprise is registered. It requests the Government to keep it informed in this respect.
31. 980. With regard to its previous request to keep it informed of the court decision concerning the registration of the Federation of Free Trade Unions of Lvov Railways, the Committee regrets that the Government did not provide any new information in this respect except for stating that the hearing by the Supreme Court was scheduled for 22 November 2005. The Committee therefore reiterates its request to transmit a copy of the judgement.
32. Collective bargaining
33. 981. In respect of the previous request of the Committee to keep it informed of the conclusions reached by the commission set up to examine the allegations of violations of trade union rights by the management of the “Partizanskaya” and “Stakhanova” mines, the Government states that at the “Partizanskaya” mine, the territorial state labour inspectorate confirmed that the management failed to transfer money for cultural, sports and health activities to the NPGU primary trade union. The management of the enterprise was therefore ordered to rectify the violation of the collective agreement and a report of an administrative offence was filed with the court in accordance with section 41-2 of the Code of Administrative Offences. A further inspection, which took place on 31 October 2005, established that in 2005, 116,82 gryvnas were paid to the NPGU for cultural, sport and recreational activities by the “Partizanskaya” mine. The Committee takes note of this information.
34. 982. With regard to the failure to comply with section 44 of the Law on Trade Unions, the sectoral agreement and the collective agreement to transfer 1 per cent of the wage fund to the trade union committee of the NPGU for cultural and sport activities, the Government states that due to the financial difficulties faced by the “Stakhanova” mine in 2005, only a part of the amount due was transferred to the union. The Committee notes this information and expresses its hope that all of the amount due to the trade union will be paid to the union without delay. It requests the Government to keep it informed in this respect.
35. 983. The Committee recalls that it had previously requested the Government to reply to the complainants’ allegation that the administration of the Maritime Commercial Port of Ilyichevsk refuses to bargain collectively with the Independent Trade Union of Workers of the Maritime Commercial Port of Ilyichevsk. The Committee notes the information provided by the Government to the effect that in April 2005 trade unions, including the independent trade union, established a single representative body for the purpose of negotiating a collective agreement. In May 2005, the port administration presented a draft of the collective agreement to the chairperson of the working committee responsible for negotiating a collective agreement for 2005-08. The collective agreement will be finalized and adopted at a meeting of the workforce after the adoption of a branch agreement for 2006-07. Currently, the collective agreement concluded for the period 2001-04, with appropriate changes, is still in force. The Committee requests the Government to keep it informed of the developments regarding the adoption of a new collective agreement at the port.
36. Other alleged violations
37. 984. In its previous recommendations, the Committee had requested the Government to provide its observations on the allegations of violations of trade union rights at the “Ordzhonikidze” and “Novodonetskaya” mines, “Meridian” international school, “Ilyich” metallurgical enterprise, “Krasnoarmeyskiy dinasovoy zavod” enterprise and “Krasnolimanskaya” coal company.
38. 985. The Committee notes with interest that, according to the Government, the management of the “Novodonetskaya” mine provided the NPGU primary trade union with premises and concluded an agreement of cooperation with the union. It further notes with interest that the dispute between the management of “Meridian” international school has been resolved and the trade union committee has been provided with premises.
39. 986. With regard to the allegation of anti-union discrimination suffered by Mr. Suk following his joining of the NPGU primary trade union at the “Krasnolimanskaya” coal company, the Government indicates that Mr. Suk resigned from his job on 18 July 2005. The Committee notes that the complainants previously alleged that Mr. Suk was openly threatened and advised to leave the union. In these circumstances, the Committee requests the Government to conduct an independent investigation into this matter and if it is found that Mr. Suk was in any way forced to resign due to his union activities, to take suitable measures to remedy this situation, including the provision of sufficiently dissuasive sanctions so as to avoid any reoccurrence of such anti-union discrimination. It requests the Government to keep it informed in this respect.
40. 987. With regard to the previous allegations of anti-union discrimination, pressure, anti-union campaign and refusal to bargain collectively with the primary trade union “Defence of Justice” at the “Krasnoarmeyskiy dinasovy zavod” enterprise, the Government indicates that an investigation found no evidence to support the allegations of trade union rights violations at this enterprise. The independent trade union “Defence of Justice” was provided with a fully equipped office. The newspaper of the union can be displayed at the enterprise entrance. Members of the independent trade union “Defence of Justice” systematically attended seminars, meetings and other events held at the plant. The Committee requests the Government to indicate whether the primary trade union “Defence of Justice” is recognized for collective bargaining purposes at the enterprise.
41. 988. The Committee regrets that the Government provides no information with regard to the allegations of trade union rights violation at the “Ordzhonikidze” mine and the “Ilyich” metallurgical enterprise and requests the Government to transmit its observations thereon without delay.
42. New allegations
43. 989. The Committee notes that in its communication dated 15 July 2005, the CFTUU alleges that an anti-union campaign was launched by the management of the “Korosten’s Porcelain” enterprise against the primary trade union of the All-Ukrainian Trade Union “Defence of Justice”. According to the CFTUU, the management refuses to provide the union with premises and check-off facilities and to bargain collectively with the union. The Committee notes with interest that according to the Government, the above allegations were fully investigated and all violations of trade union rights by the management were rectified. The union was provided with premises and the requests by the union members to deduct trade union membership dues have been accepted. All trade unions of the enterprise have been invited to form a unified representative body to bargain with the management with a view to concluding a collective agreement for the next period. According to the Government, the chairperson of the union “Defence of Justice” stated that he currently had no complaints about the management of the “Korosten’s Porcelain” enterprise.
44. 990. The Committee further notes the CFTUU allegation that the primary trade union of the “Nikopol South-Pipe Plant” enterprise was not included, along with other trade union representatives, in the working group created to make proposals on efficiency of the enterprise. The Committee notes with interest that according to the Government’s reply, pursuant to Instruction No. 37339/114/1-05 of 29 August 2005 of the Cabinet of Ministers of Ukraine, the Dnepropetrovsk regional state administration agreed to include the chairperson of the independent trade union of the “Nikopol South-Pipe Plant” as a member of the above working group.
45. 991. The Committee notes the CFTUU’s allegation that the management of the “Marganets ore mining and processing” enterprise refuses to recognize the primary trade union of the NPGU and had launched an anti-union campaign to destroy the union by pressurizing trade union members and threatening them with dismissals. The Committee regrets that no information was provided by the Government in this respect and requests it to provide its observations thereon without delay.
46. 992. The Committee notes the CFTUU’s communications of 9 and 14 March 2006. In this regard, the Committee requests the Government to indicate the measures it has taken in order to ensure the legalization of the free trade union “Oktan” established at the Oil Investment Company of Lysychansk city. It further requests the Government to provide its observations on allegations of pressure put on trade union members, threats of dismissals, refusal to grant access to the enterprise’s premises to the union chairperson and prohibition to hold trade union meetings which took place at the Oil Investment Company and the boarding school of Sosnytsia city.
47. * * *
48. 993. While noting that information has not been provided on each and every matter raised in the complaint, the Committee notes with interest the efforts made by the Government to provide information on many of the cases brought to its attention and the fact that, according to both the Government and the complainants, several of these matters have now been resolved. The Committee notes in particular the initiative taken to establish independent investigations into several of these allegations which, using a tripartite model, have included representatives from the employers’ and workers’ organizations concerned, the National Mediation and Conciliation Service and the regional state labour inspectorates. The Committee encourages the Government to continue to review the outstanding matters where possible through the use of similar independent commissions. The Committee reminds the Government that it may avail itself of the technical assistance of the Office if it so wishes.