Letter to Ukraine's Parliament regarding Trade Union Law

July 16, 2020

To the Chairperson of the Verkhovna Rada of Ukraine
Razumkov, Dmytro Oleksandrovych,

To the Chairperson of the Committee on Social Policy and Protection of Veterans’ Rights
Tretiakova, Halyna Mykolaivna,

To the Chairperson of the Committee on European Integration
Klympush-Tsyntsadze, Ivanna Orestivna,

To the Chairperson of the Committee on Anti-Corruption Policy
Radina, Anastasiia Olehivna,

To the Chairperson of the Servant of the People political party faction
Arakhamiia, Davyd Heorhiiovych,

To the Co-heads of the "Opposition Platform– For Life" political party faction
Boiko, Yurii Anatoliiovych and Rabinovych, Vadym Zinoviiovych,

To the Chairperson of the All-Ukrainian Union “Batkivshchyna” political party faction
Tymoshenko, Yuliia Volodymyrivna

To the Co-chairs of the European Solidarity political party faction
Gerasimov, Artur Vladimirovich and Gerashchenko, Irina Vladimirovna,

To the Chairperson of the Holos political party faction
Rakhmanin, Serhii Ivanovych,

To the Co-chairs, and member, of the Party for the Future group
Bondar, Viktor Vasiliovich, Batenko, Taras Ivanovich
Rudyk Serhiy Yaroslavovych

To the Chair of the Trust group
Kulinich, Oleg Ivanovich

Please accept my regards on behalf of Human Rights Watch.

Human Rights Watch is an independent international human rights organization that documents human rights issues and works to improve human rights conditions in more than 90 countries worldwide. Our work on Ukraine covers a wide range of issues, including abuses in Crimea. We have worked on labor and trade union rights in multiple countries, including Georgia, Kazakhstan, Russia and the United States.

I am writing to express Human Rights Watch’s concern regarding the legislative amendments on trade union rights, Draft Law No. 2681, and to urge you to withdraw the draft law, and ensure that any forthcoming draft law provisions on these issues are in full compliance with domestic and international labor and human rights standards.

We understand that on May 27, the Verkhovna Rada Committee on Social Policy and Protection of Veterans, which is the lead committee on this draft, recommended that the Rada vote on Draft Law No. 2681 and that it is pending plenary review.

Human Rights Watch is concerned that certain provisions in the draft impose serious and unjustified restrictions on workers’ rights to freedom of association and to organize. These provisions are incompatible with art. 36 of the Constitution of Ukraine, which guarantees the right to freedom of association, and would violate important international labor and human rights standards enshrined in International Labor Organization (ILO) conventions to which Ukraine is party. These provisions also violate other human rights treaties to which Ukraine is party, in particular, the European Convention on Human Rights (ECHR), the European Social Charter (ESC), the International Covenant on Economic, Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR).

These provisions are summarized below.

1.     Restricting trade union pluralism:

The draft law introduces limits on the number of trade unions in an enterprise to no more than two. This provision violates the principle of trade union pluralism and interferes with workers’ right to establish and join organizations “of their own choosing” as guaranteed in ILO Convention No. 87. [1] The right to form trade unions and to join the trade union of their choice is also protected under the ESC (art. 5) the ICCPR (art. 22) and ICESCR (art. 8).

2.     Seizure of trade union property:

The draft law mandates automatic transfer of all trade union property that was in trade unions’ possession as of August 24, 1991 (when Ukraine declared its independence) to state ownership without judicial overview or due process. The collective seizure of trade union property may paralyze trade union activities. The ILO has stated that the right to adequate protection of trade union property is a civil liberty that is essential for the normal exercise of trade union rights.[2] This measure also violates the protection of property rights provided for in Art. 1 of Protocol 1 of the ECHR.

3.     Regulating internal union management:

The draft law seeks to regulate the internal management of unions by imposing a mandatory requirement to establish a “supervisory committee” in all trade unions. Members of such “supervisory committee” would be elected from among the members of the trade union, however non-members of trade unions or members of trade unions outside of the association may be involved in the work of the supervisory committee as community representatives. The draft gives such committees broad supervisory authority over trade union activities, including over compliance with the trade union law, the union’s charter, collective agreements and contracts by the elected body and the members of the trade union. This provision undermines the independence of trade unions and their right to freely determine their structures. These requirements violate ILO Convention No. 87, which guarantees trade unions the right to independently draw up their own statutes and rules and organize their administration and activities without any interference from public authorities that would restrict or impede this right.[3]

4.     Restricting trade union rights for “managerial” staff:

The draft law excludes from collective bargaining any trade union whose members include persons belonging to an enterprise’s management personnel. The draft law does not define the meaning of the “management personnel” and therefore creates room for overly broad interpretation to include employees who have any kind of supervisory authority.

Even though the draft formally does not restrict “managerial” staff from establishing a trade union, by excluding such unions from representing employees in collective bargaining, the draft would deprive them of their ability to execute one of the most important functions of a trade union.

According to ILO standards, managerial or supervisory employees can be denied the right to belong to the same trade unions as other workers, on condition that two requirements are met: first, that managerial employees have the right to establish their own associations to defend their interests and, second, that the categories of such staff are not defined so broadly as to weaken the organization of other workers in the enterprise or branch of activity by depriving them of a substantial proportion of their present or potential membership.[4] Unfortunately, this provision fails to meet both of these requirements.

The UN Committee on Economic, Social and Cultural Rights in its 2020 concluding observations on Ukraine expressed concern that Draft Law No. 2681, if adopted, would weaken the powers of trade unions, resulting in violations of art. 8 of the ICESCR. It stated, “the Committee urges the State party to review the draft law… with a view to ensuring the effectiveness of collective bargaining and of the right to union representation, in compliance with article 8 of the Covenant and the provisions of the International Labour Organization 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).”[5]

If the draft law is adopted without further revision, current shortcomings contravening Ukraine’s international obligations could trigger review procedures against Ukraine by international treaty bodies, including ILO supervisory mechanisms.

The draft law does not adhere to Ukraine’s commitments under the Association Agreement between the European Union (EU) and Ukraine, according to which Ukraine undertook the obligation to promote and implement internationally recognized core labor standards, including freedom of association and the effective recognition of the right to collective bargaining.[6] Ukraine should not weaken or reduce labor protection afforded by its laws in the hope that it will encourage trade or investment.[7]

We understand that on July 2, 2020, the Verkhovna Rada’s Committee on European Integration concluded that Draft Law No. 2681 contradicts Ukraine’s commitments under the EU-Ukraine Association Agreement (EUAA), the European Social Charter (revised) and ILO conventions No.87, 135, and 158 and weakens Ukraine’s legal mechanisms for protecting the rights and legitimate interests of workers. We appreciate this committee’s efforts to ensure Ukraine’s compliance with its international commitments.

The draft law has also drawn serious criticism from multiple international and local stakeholders, including the International Lawyers Assisting Workers Network (ILAW Network)[8] and IndustriaALL Global Union,[9] which have urged parliament to withdraw the draft as it excessively restricts trade union rights and contravenes certain ILO standards.

Other stakeholders have identified additional provisions of the draft law that seriously restrict activities of trade unions. These include provisions that increase to 10 the minimum number of trade union members; eliminate automatic trade union dues collection; weaken an employer’s obligation to provide collective bargaining information to trade unions; and deprive trade unions the opportunity to submit proposals to draft laws before their submission and consideration by the executive authorities.[10]

Human Rights Watch urges the Ukrainian parliament to withdraw the draft law as it unduly limits trade union rights. We hope parliament will take all necessary steps to ensure that any forthcoming draft laws on these issues respect the independence of and principle of non-interference in trade union activities and adhere to Ukraine’s international labor obligations.

Human Rights Watch welcomes the opportunity to discuss these issues with you or your representatives further. Please do not hesitate to reach out to me at williaa@hrw.org.

Thank you for your attention to this matter.

Sincerely,