Informe provisional - Informe núm. 327, Marzo 2002

1. 868. The Committee has already examined the substance of this case on two occasions, at its November 2000 and June 2001 meetings when it submitted interim reports to the Governing Body [see 323rd Report, paras. 525-543 and 325th Report, paras. 547-560 respectively].
2. 869. The Government provided further information in communications dated 22 August, 14 September and 12 November 2001 and 24 January 2002. The complainant forwarded additional information in communications dated 1 May and 1 and 21 November 2001 and 9 January 2002.
3. 870. 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. 871. At its meeting in June 2001, in the light of the Committee’s interim conclusions, the Governing Body approved the following recommendations:
   • (a) Noting with interest the ruling of the Constitutional Court of Ukraine and the Government’s intention to comply with that ruling as well as its request for ILO technical assistance on this issue, the Committee asks the Government to keep it informed of the measures effectively taken to bring the Act on "Trade Unions, their Rights and Safeguard of their Activities" in full conformity with the provisions of Conventions Nos. 87 and 98.
   • (b) Concerning the case of Mr. Vdovichenko, the Committee requests the complainant to provide more information on the current trade union situation at the Lutsk Bearing Plant. With regard to the case of Mr. Chupikov, victim of an assault which is under investigation, the Committee requests the Government to keep it informed of the outcome of this case as soon as the decision is handed down. The Committee also asks the Government to keep it informed on the situation of Mr. Jura, trade union leader at the Volynoblenergo enterprise.
   • (c) The Committee notes the recent registration of the All-Ukraine Trade Union "Capital/Regions" and the acquisition of legal personality of its affiliates. However, noting that the Volynskaya Province of the All-Ukraine Trade Union "Capital/Regions" has not yet been registered with the local authorities since the required documents have not been submitted, the Committee trusts that the said union will be registered without delay, as soon as it has complied with the required formalities and asks the Government to keep it informed in this regard. In addition, the Committee requests the Government to put an end to all acts of harassment and intimidation of trade unionists. It asks the Government to keep it informed in this regard.
   • (d) With regard to the dismissal of a high number of workers in 1999 at the Lutsk Bearing Plant, the Committee requests the complainant to provide further information on this aspect of the case.
   • (e) The Committee asks the Government to send its observations concerning the allegations contained in the complainant’s most recent communication.

B. The complainant’s new allegations

1. 872. In a communication dated 1 May 2001, the complainant organization puts forward new violations of trade union rights at the Lutsk Bearing Plant, which concerns mainly Mr. Vladimir Linik. The complainant organization alleges that the management of that enterprise forcibly excluded an issue raised by Mr. Linik concerning his working conditions from the agenda for collective bargaining on the draft collective bargaining agreement. Mr. Linik worked for the enterprise from 7 February 1985 to 26 May 1999 and was an active member of the trade union since 1994. He became ill and was certified disabled, mainly because he had worked in an unhealthy and harmful environment for a long period of time at the Lutsk Bearing Plant. In 1998, the enterprise’s new owners decided to ensure appropriate working conditions for the workers. But the old management, which stayed in place, did not follow these instructions. This led to active protests from the Free Trade Union, which were followed by reprisals from the management. The first people to be included on the blacklist were the leaders and activists of the Free Trade Union, amongst which figured Mr. Linik. The complainant organization explains that the management then subjected Mr. Linik to constant psychological pressure and he was compelled to accept his dismissal and the payment of an insignificant amount of compensation. In addition, the complainant organization reiterates that the workers at the Lutsk Bearing Plant are being pressured to withdraw from the Free Trade Union.
2. 873. In recent communications dated 1 and 21 November 2001 and 9 January 2002, the complainant organization alleges new violations of trade union rights at the Volynoblenergo enterprise and at the Kovel Depot of L’vov Railways. Moreover, it alleges that the draft proposals on the amendments of sections 11 and 16 of the Act on "Trade Unions, their Rights and Safeguard of their Activities" put forward by the Government do not comply with the requirements of Conventions Nos. 87 and 98, particularly with regard to the registration formalities.

C. New reply from the Government

1. 874. In its communication dated 22 August 2001, the Government replies to the recent allegations put forward by the complainant organization concerning the case of Mr. Linik. The Government explains that the management of the enterprise examined Mr. Linik’s application to be transferred to another post because of his deteriorating health and proposed him a number of alternative posts at the Lutsk Bearing Plant. Since Mr. Linik refused all the alternative posts proposed, and in view of his inadequate qualifications and deteriorating health, the management terminated his contract of employment in accordance with section 40(2) of the Labour Code, which provides that a contract of employment may be terminated in cases where a worker is not able to perform a given job because of inadequate qualifications or poor health. When Mr. Linik’s employment was terminated under the terms of an agreement between the Board of Directors and the trade union committee and in accordance with the collective agreement in force, he was given paid leave on the basis of twice his average monthly wages for the period from the date on which he was given notice of termination, to the day on which he was due to leave, plus payments equivalent to three months’ average wages for 1998 and an additional lump sum equivalent to six months’ pay.
2. 875. In its communication of 14 September 2001, the Government provided information related to the case of Mr. Chupikov, leader of the Free Trade Union at the Voltex enterprise. Mr. Chupikov and his wife were assaulted and robbed on 20 October 1999 in the city of Lutsk. The local authorities had initiated criminal investigations, which were supervised by the Ministry of the Interior. However, the Government indicates that these proceedings were suspended in accordance with section 206(3) of the Code of Penal Procedure, since the identity of the offenders had not been established.

D. The Committee's conclusions

1. 876. The Committee recalls that this case related to two sets of allegations, namely allegations of a legislative nature related to certain provisions of the Act on "Trade Unions, their Rights and Safeguard of their Activities", and allegations of a factual nature related to the denial of legal recognition of trade unions, harassment and intimidation of trade union activists as well as unlawful dismissals.
2. 877. The Committee regrets that in their numerous recent communications, both parties have not provided detailed information on most of the specific issues which were still pending in this case and have chosen to provide information which was not related to the present case and did not involve violations of freedom of association.
3. 878. With regard to the allegations of a legislative nature related to certain provisions of the Act on "Trade Unions, their Rights and Safeguard of the Activities", the Committee notes that according to the Government, a bill amending sections 11 and 16 of the Act was examined at a session of the Supreme Council and adopted as a basis for further discussion. The drafting process will also take into account the conclusions of the ILO mission which visited the country in April 2001. The Committee takes due note of this information and once again asks the Government to continue to keep it informed of the measures effectively taken to bring the said Act into full conformity with the provisions of Conventions Nos. 87 and 98.
4. 879. With regard to the case of Mr. Chupikov, victim of an assault which was under investigation, the Committee takes note of the Government’s statement according to which the proceedings in that case were suspended since the offenders had not been identified. While noting this information, the Committee recalls that the absence of judgements against the guilty parties creates, in practice, a situation of impunity, which reinforces the climate of violence and insecurity, and which is extremely damaging to the exercise of trade union rights [see Digest of decision and principles of the Freedom of Association Committee, 4th edition, 1996, para. 55]. In addition, it once again asks the Government to keep it informed on the situation of Mr. Jura, trade union leader at the Volynoblenergo enterprise.
5. 880. In its previous report, the Committee had noted the recent registration of the All-Ukraine Trade Union "Capital/Regions" and the acquisition of legal personality of its affiliates. In this regard, it asks the Government to keep it informed of whether the Volynskaya Province division of the All-Ukraine Trade Union "Capital/Regions" has been registered with the local authorities.
6. 881. With regard to the new allegations concerning Mr. Linik, trade unionist at the Lutsk Bearing Plant, the Committee notes that according to the Government, Mr Linik was dismissed because of his deteriorating health and inadequate qualifications and because he refused to be transferred to another post. The Government stated the Mr. Linik’s contract was terminated in accordance with the relevant sections of the Labour Code and that he perceived all the indemnities he was entitled to. However, the Committee notes that according to the complainant, Mr. Linik was put on a blacklist, was the victim of constant psychological pressure and forced to accept an insignificant amount of compensation, namely because he was a trade union activist. In view of the contradicting statements, the Committee asks the Government to set up an independent inquiry into the dismissal of Mr. Linik and if there was evidence that he had been dismissed for reasons linked to his legitimate trade union activities, to take all necessary measures to reinstate him in an appropriate position, without loss of wage and benefits. The Committee asks the Government to keep it informed in this regard.
7. 882. Finally, in the light of the continued allegations of acts of anti-union discrimination at the Lutsk Bearing Plant, the Committee urges the Government to investigate these allegations and if they are proven to be true, to take all necessary measures to put an end to these acts. The Committee asks the Government to keep it informed in this regard. The Committee also asks the Government to provide its observations on the recent allegations put forward by the complainant organization in its communications of 1 and 21 November 2001 and 9 January 2002.