Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 351, Novembre 2008

1. 1359. The complaint is submitted by the International Organisation of Employers (IOE), on behalf of the Federation of Employers of Ukraine (FEU), in a communication dated 16 October 2007. The FEU supplied additional information in a communications dated 3 April and 17 July 2008.
2. 1360. The Government sent its observations in communications dated 17 March and 12 June 2008.
3. 1361. 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. 1362. In its communication of 16 October 2007, the IOE alleges infringement by the Ukrainian authorities of the right of employers’ organizations to draw up their constitutions and to organize their administration without interference by public authorities. In particular, the complainant submits, that on 7 June 2007, the third Congress of the FEU adopted amendments to its statutes, prepared on the basis of an accepted practice and after a wide consultation with the FEU members. The Congress was convened by the acting Chairperson, with the support of the secretariat, as the appointed Chairperson had to leave the organization in order to take up the post of the Minister of Economy of Ukraine. The Congress was attended by 88 per cent (96 persons) of the total number of elected delegates and changes were unanimously adopted.
2. 1363. The main changes in the FEU statutes were the following: the position of Chairperson was abolished and replaced by the post of the FEU Board Chairperson and under condition that this person could not be a member of the Government or have a position on a board of a political party; appointment of a Director-General who would head the FEU secretariat and be accountable to the Board; opening of a direct membership to companies (previously, only associations could be members); and strengthening the power of the FEU Board.
3. 1364. In accordance with the Law on Public Association and the Law on Employers’ Organizations, on 25 June 2007, the FEU submitted a request to the Ministry of Justice to register its newly amended statutes.
4. 1365. After consideration of the documents, on 18 July 2007, the Ministry of Justice issued Order No. 518/5 on Refusal to Register Amendments to the Statutes of the Federation of Employers of Ukraine. According to the complainant, the Ministry’s legal opinion on the refusal to register the amendments lacked the assessment of compliance of the FEU statutes with the legislation and failed to point out which amendments would be contrary to the law in force. Instead, it contained characterization of secondary aspects that had little, if anything, to do with the legal grounds for refusal and were built on non-existent facts and distorted information. The complainant further stresses that the Ministry failed to take into account what is to be considered the main reason behind the newly introduced changes: the fact that on 21 March 2007, Mr Kinakh, who at the time was the FEU Chairperson, was appointed the Minister of Economy of Ukraine and that, pursuant to the Law on Cabinet Ministers of Ukraine and the Law on Employers’ Organization, Mr Kinakh no longer had the right to remain the FEU Chairperson. Therefore, on 26 March 2007, at the session of the FEU Board, Mr Kinakh stepped down from his post of the FEU Chairperson. The refusal to register the amendments had serious consequences for the internal governance and functioning of the FEU. Therefore, on 30 August 2007, the FEU filed a claim with the Kiev District Administrative Court.
5. 1366. In a communication dated 3 April 2008, the FEU indicates that, on 7 March 2008, pursuant to the decision of the Kiev Administrative Appeals Court of 28 February 2008, the Ministry of Justice registered the amendments to the statutes. However, Mr Kinakh, who is a party to this case, appealed the decision to the Supreme Court.
6. 1367. In a communication dated 17 July 2008, the FEU informs that the Supreme Administrative Court suspended the execution of the decision of the Kiev District Administrative Court of 22 November 2007, pending completion of any appeal proceedings. However, taking into account that, at that time, the amendments had already been registered, any decision to cancel the registration can only be taken by a decision on the merits. The FEU is therefore awaiting for the case to be heard by the Supreme Administrative Court.

B. The Government’s reply

1. 1368. In its communication dated 17 March 2008, the Government confirms that the amendments to the FEU’s statutes were registered on 7 March 2008, in accordance with the Law on Public Associations and the Law on Employers’ Organizations and pursuant to the decisions of the Kiev District Administrative Court of 22 November 2007 and the Kiev Administrative Appeals Court of 28 February 2008.
2. 1369. In a communication dated 12 June 2008, the Government indicates that, by its ruling of 12 May 2008, the Supreme Administrative Court suspended the execution of the decision of the Kiev District Administrative Court of 22 November 2007, pending completion of any appeal proceedings.

C. The Committee’s conclusions

1. 1370. The Committee notes that the present case concerns the allegation of refusal to register amendments to the statutes of the FEU, unanimously adopted by the delegates of the Congress of the Federation.
2. 1371. The Committee notes the information subsequently submitted by the FEU as well as by the Government, according to which, following the decision of 22 November 2007 of the Kiev District Administrative Court and the decision of 28 February 2008 of the Kiev Administrative Appeals Court, the amendments in question were registered on 7 March 2008, in accordance with the Law on Public Associations and the Law on Employers’ Organizations.
3. 1372. The Committee further notes however from the Government’s communication dated 12 June that, on 12 May 2008, the Supreme Administrative Court suspended the execution of the decision of the Kiev District Administrative Court pending completion of appeal proceedings. The Committee further notes that the amendments to the statutes remain registered pending the final decision of the Supreme Administrative Court. Recalling that Article 3 of Convention No. 87 guarantees employers’ organizations the right to draw up their constitutions and rules and that amendments to the organization’s constitutive documents are to be debated and adopted by the members of the organization [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 455], the Committee expects that the Supreme Administrative Court will confirm the decisions of the lower courts ordering the registration of the amendments to the statues of the FEU to avoid any further impediment to the functioning of the FEU. The Committee requests the Government to keep it informed in this respect and to transmit a copy of the decision taken by the Court.