Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 350, Junio 2008

Effect given to the recommendations of the Committee and the Governing Body

1. 211. The Committee last examined this case concerning 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 at its November 2007 meeting [see 348th Report, paras 156–166]. On that occasion, it once again requested the Government: (1) to indicate whether appropriate compensation was paid to those trade unions of the Western Donbass Association of the NPGU, which suffered material damage due to the illegal search on 12 November 2002: (2) to indicate the reason behind the initial decision of the Kiev Appellate Economic Court to declare invalid the by-laws of the All-Ukrainian National Union of Football Players and to transmit the relevant court decisions; and (3) to keep it informed of the decision reached by the Higher Economic Court in the case filed by the enterprise trade union to contest the findings of two inspections conducted at the “Ilyich” metallurgical enterprise concerning the alleged violations of trade union rights and to transmit the corresponding judicial decision. The Committee further requested the Government to keep it informed of the outcome of the judicial proceedings in respect of the dismissal of a trade union member of the All-Ukrainian Trade Union (AUTU) “Defence of Justice” from the Mariupol Commercial Seaport, as well as the dismissals of the founder of the Confederation of Free Trade Unions of Ukraine (CFTUU) primary trade union at the “VK Dnepropetrovsk enterprise” and the Chairperson the CFTUU primary trade union at the Lvov Railway. The Committee noted the comments transmitted by the CFTUU on the measures taken by the Government to implement the Committee’s recommendations and requested the Government to transmit its observations thereon.
2. 212. In its communication dated 26 December 2007, the Government indicates that the issues raised by the CFTUU in its last communication have been the subject of previous observations by the Government and were already examined by the Committee.
3. 213. In its communications dated 18 February and 17 March 2008, the Government provides its observations with regard to the following issues:
   • – Compensation to be paid to those trade unions of the Western Donbass Association of the NPGU, which suffered material damage due to the illegal search on 12 November 2002. The Ministry of Labour and Social Policy has approached the relevant bodies (Dnepropetrovsk regional authorities and state labour authorities) with a recommendation that an independent commission be set up, comprising representatives of trade unions, employers, labour inspection authorities and law enforcement bodies, in order to carry out an in-depth investigation and to resolve the problem. The investigation revealed that on 31 October 2002, the Office of the Public Prosecutor launched a criminal investigation into the facts of abuse of their position by the officers of the NPGU of the “Stepova” mine. In the process of the investigation, on 13 November 2002, a search of the offices of the regional association and eight primary trade unions of the NPGU was authorized and carried out and relevant accounting books and documents were seized. On the same day, the chairperson of the regional association of the NPGU filed a claim with the Pavlogradskiy City Court requesting that compensation be paid to the trade unions which suffered material damage due to the search. The court considered that the claim was outside the scope of competence of courts of common jurisdiction and dismissed it. On 23 November 2002, a criminal investigation was launched by the Office of the Prosecutor of Dnepropetrovsk region into the facts of abuse of power during the investigation of the criminal case against the trade union officials. Following the preliminary investigation, this case was closed. The initial criminal case against the trade union officers was also closed on 16 March 2004 on the grounds of absence of corpus delicti.
   • – Dissolution of the All-Ukrainian Union of Football Players. The Government indicates that the union was registered on 20 March 2000 and received its status of all-Ukrainian union pursuant to the then in force section 11(5)(3) of the Law on Trade Unions (which provided that an all-Ukrainian status can be obtained by a union, the members of which represent the majority of persons employed in the relevant profession). This provision was declared unconstitutional by the Constitutional Court on 18 October 2000. The Office of the Public Prosecutor and the association of football clubs “Professional football league of Ukraine” brought a claim before the Kiev Economic Court requesting to declare the by-laws of the All-Ukrainian Union of Football Players and its registration invalid. The claim was dismissed on 10 June 2003. The Kiev Economic Court of Appeal overturned that decision on 25 November 2003. On 16 March 2004, the Superior Economic Court dismissed the appeal of the Ministry of Justice and upheld the decision of the Kiev Economic Court of Appeal. On 17 March 2004, the Supreme Court of Ukraine dismissed the appeal of the Ministry of Justice against the decision of the Superior Economic Court. Accordingly, the registration of the All-Ukrainian Union of Football Players was cancelled.
   • – Alleged violations of trade union rights at the “Ilyich” metallurgical enterprise. With regard to the case filed by the enterprise trade union concerning the deduction and transfer of funds for organizing cultural and sports activities, conclusion of collective agreement for 2007–08 and the provision of premises, communication, security and transport facilities, on 9 August 2007, the Illichevsky District Court in Mariupol dismissed the claim on the grounds that it fell outside of its jurisdiction. The Donetsk Regional Appeal Court upheld that decision. The Government further points out that the president of the primary organization of the AUTU “Defence of Justice” at the “Ilyich” plant has not submitted a complaint to the state labour inspection authorities of the Donetsk Region against the relevant officials for refusing to participate in collective bargaining to conclude, amend and supplement the collective agreement.
   • – Dismissal of the trade union member of the AUTU “Defence of Justice” from the Mariupol Commercial Seaport. (1) The state labour inspection authorities have established that according to section 2.7 of the 2007–09 collective agreement, the enterprise management must provide the trade union, free of charge, premises for cultural and sports activities and must ensure their maintenance and servicing. The enterprise also bears other expenses relating to the functioning of the trade union committee apparatus. (2) On 27 June 2007, the Primorsky District Court in Mariupol upheld the claim of Mr M.V. Kartavenko, the elected President of the primary organization of the AUTU “Defence of Justice”, that the order to dismiss him was illegal and should therefore be revoked. The Court ruled that Mr Kartavenko should be reinstated in his post of machine operator and upheld his claims for payment of an average wage for the duration of his forced absence, moral damages and legal expenses. On 23 September 2007, Mr Kartavenko resigned from his post. Other members of the trade union voluntarily left the union. No actions have been brought by the staff claiming that the primary organization of the AUTU “Defence of Justice” has been prevented from resuming its activities.
   • – Dismissal of the founder of the CFTUU primary trade union at the “VK Dnepropetrovsk enterprise”. Pursuant to the decision of the Dnepropetrovsk Regional Appeal Court, on 5 October 2007, Ms Pribudko was reinstated in her post with effect from 26 April 2007. However, the order of reinstatement was suspended pending an appeal filed by the “VK Dnepropetrovsk enterprise” before the Supreme Court. On 9 October 2007, Ms Pribudko was dismissed upon the agreement of both parties. On the same day, she received her employment record book where she had confirmed that she had no further material or moral claims against the “VK Dnepropetrovsk enterprise”. The Government further points out that the representatives of the primary trade union have not submitted any complaints of violations of their rights to the regional state labour inspection.
   • – Dismissal of the Chairperson of the CFTUU primary trade union at the Lvov Railway. On 18 June 2007, the Galitsky District Court in Lvov dismissed the action brought by Mr Smereka seeking reinstatement without loss of pay and payment of moral damages. This decision was upheld by the College of Judges of the Judicial Chamber for Civil Cases of the Lvov Regional Appeals Court on 3 September 2007. The Government transmits the above decisions. Neither the CFTUU nor Mr Smereka has lodged an appeal with the Supreme Court.
4. 214. The Committee notes the detailed information provided by the Government. In particular, it notes with interest the information provided by the Government on the outcome of investigations into all remaining cases of alleged violations of trade union rights. The Committee therefore considers that this case does not call for further examination.