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Draft Law #2681 “Concerning Some Issues of Trade Union Activity”: An update of major issues of concern in relation to international law, national norms, and workers’ rights

On 27th of May the Parliamentary committee on Social policy and protection of veterans recommended to vote in 1st reading the draft law #2681 that will dramatically narrow the freedom of association in Ukraine. Along with this decision, the Committee members agreed to create a working group including all interested partners after its adoption in the 1 reading in order to further develop this draft law and prepare it for the second reading at the parliament.

The draft law receives extremely negative criticism from Ukrainian trade unions, ITUC, ETUC, GUF-s, ILAW and numerous organizations all across the world.

Moreover, on May 27, the Main Scientific and Expert Department of the Verkhovna Rada published their conclusion on the official Rada website. Its experts stated that after the first reading the draft law No.2681 should be returned to the Committee for further development. They highlighted a lot of concerns and violations of the Constitution of Ukraine, ILO conventions and the EU-Ukraine Association Agreement.

Experts pointed out that the draft law proposes to limit certain rights and guarantees of trade unions in Ukraine, violating the state guarantee of labor rights realization, as well as the principles of independence, self-government, non-interference in trade unions which are well-known international principles of social partnership system functioning.

It is worth noting that on March 5, an electronic petition regarding non-consideration of the draft law No.2681 was registered on the official web-site of the parliament. Currently 25412 people (from the necessary 25000) have signed it. On May 25, it has the official status “under consideration”.

Amongst others, draft law provides for the following stipulations that are problematic and will affect all trade unions in Ukraine in different aspects:

  • Limits to the formation of trade unions: The bill limits the number of trade unions in an enterprise to no more than two. Currently, the law imposes no limit on the number of unions in an enterprise. Additionally, amendments deprive students from creating trade unions at universities. These limitations on the right to form a trade union breach Art.2 and 3 of ILO Convention 87, Art.8 of the International Covenant on economic, social and cultural rights (ICESCR), Art.5 of the European Social Charter (revised), Art.22, 36 of the Constitution of Ukraine and Art.1,6 of the Law of Ukraine “On Trade Unions, Their Rights and Guarantees of Activity”. ILO Convention 87 provides that all workers have a right to form or join a trade union of their choosing and the ILO Committee on Freedom of Association has repeatedly noted that, while trade union unity may be desirable, legislated limits on the number of trade unions violate the right to freedom of association. Today, numerous large companies have more than 2 unions. Moreover, this provision will be discriminatory for employees desiring to create a third alternative union, it will constrain their constitutional right to freedom of association. It further may encourage the creation of management controlled unions as a mechanism to de facto prevent worker unionization.
  • Increased minimum membership of trade unions: The draft law sets a minimum membership of a trade union to at least 10 persons, up from 3 currently. There appears no reasoned basis for the government to make this change. While legislation may require an appropriate minimum membership, in the case of Ukraine this would exclude many workers from the ability to form or join a union – namely those who are employed in micro and small enterprises.
  • Creation of external “control commissions” with unspecified power over trade unions: The draft law mandates the establishment of “control commissions” in all trade unions (new Article 247-1 of the Labor Code and Article 16-1 of the Law “On Trade Unions, Their Rights and Guarantees of Activity”). The procedure for establishing a control commission and exercising its powers will be determined by the statute of the trade union. Third parties who are not members of trade unions may be included in the control commission. This article violates the principle of independence and non-interference in trade union activities enshrined in Art.3 of ILO Convention 87, part 1(a) of Art.8 of the ICESCR, Art.12 of the Law “On Trade Unions, Their Rights and Guarantees of Activity”.
  • The requirement to establish a control commission would violate the right of trade unions to organize their activities freely, to adopt their own statutes, and to establish their own structures. The inclusion of non-union members on such commissions, if not freely chosen (such as government appointed members), could also affect the trade union’s independence.
  • Removal of automatic trade union dues collection: The draft law would remove the current obligation (Art.249 of the Labor Code of Ukraine, Art.42 of the Law “On Trade Unions, Their Rights and Guarantees of Activity”) of employers to deduct dues from union members’ pay and transfer the dues to the appropriate union. Union members should be able to have their employer deduct their membership dues through their paycheck. While it may still be possible to include dues deduction in collective agreements, this would remain to be negotiated and may be refused by the employer in order to frustrate the funding of the union.
  • Overbroad exclusions from collective bargaining for unions that include “managerial” staff: The draft law would prohibit collective bargaining with trade unions that include “managerial” staff among their members. However, the amendment includes no definition of this term and could be interpreted broadly to refuse to bargain with unions whose members include, for example, those who perform occasional supervisory work but are not responsible for the management decisions of the enterprise.
  • Removal of employer obligation to provide collective bargaining information to trade unions: The draft law would eliminate particular terms for an employer to respond to information requests related to collective bargaining from trade unions. Currently under Art.45 of the Law “On Trade Unions, Their Rights and Guarantees of Activity” an employer is obliged to answer appropriate questions within one week. Without indication of such a special term in the trade union law, employers would use general norms enshrined in the Law “On Citizens` Appeal”, i.e. 30 days. Such requests are vital for unions and should be considered in reasonable time to determine whether the law or the collective agreement has been violated or otherwise for the purposes of collective bargaining. The lack of such timely access to information is likely to prolong industrial disputes.
  • Undermining of tripartite social dialogue obligations: The bill would deprive trade unions the opportunity to submit proposals to draft laws before their submission and consideration by the executive authorities and deny them the right to participate in the consideration of their proposals by the executive authorities (currently Art.21 of the Law “On Trade Unions, Their Rights and Guarantees of Activity”). It would violate par.35 and 44 of the Rules of Procedure the Cabinet of Ministers of Ukraine (the government). According to the current legislation, draft legislation on issues related to the development and implementation of state social and economic policy, regulation of labor, social and economic relations are required to be submitted to the joint representative body of trade unions at the national level by the government for their input. This amendment would undermine tripartism, which is a bedrock principle of the ILO.
  • Seizure of trade union property: The bill requires the forced transfer to the state of all trade union property which was in the trade unions’ possession as of 24 August 1991 (when Ukraine declared its independence). The government has argued that all such property belonged to the USSR and as such is state property which belongs to the successor entity – the GOU. However, much trade union property was acquired by member dues and was not state property at the time of the independence of Ukraine. Further, the property has been in the consistent possession of trade unions for nearly 30 years since independence. The confiscation of union property by the state, and in particular without due process, is a significant violation of the right to freedom of association. (See, ILO Compilation of Decisions ¶ 275 (“the right to adequate protection of trade union property is one of those civil liberties which are essential for the normal exercise of trade union rights); ¶ 288 (“The confiscation of trade union property by the authorities, without a court order, constitutes an infringement of the right of trade unions to own property and undue interference in trade union activities.”))