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Kharkiv Human Rights Group Social Networking



15. Right to Work


[1]

   1. Overview

   The right to work is recognized by international agreements as one of the basic socio- economic individual rights. The European Social Charter stipulates that the state undertakes to recognize one of its main goals and one of its most important responsibilities to achieve and maintain of a high and stable level of employment with a view to achieving full employment and effectively protect the employee's right to earn her/his living in an occupation freely entered upon.

   Ukraine has committed itself to respect, protect and fulfill this right. At the same time, there are serious problems with fulfilling Ukraine’s obligations.

   In particular, despite the presence of a fairly large body of legislation governing this area, many of its provisions are declaratory. For quite some time the official unemployment rate does not reflect the real level and shows that the state has a distorted view of unemployment in Ukraine and, therefore, it is unable to secure the implementation of effective policies in employment.

   The salary level offered by the public placement service is often very low and is below the survival level established for a person and her/his family, so many of these positions remain vacant. Still lower is the unemployment relief, which does not allow a temporarily jobless person to meet practical demands of life.

    According to the European Social Charter “all employees have the right to an equitable remuneration, which will provide an adequate standard of living for themselves and their families”. At the same time in Ukraine poverty of the working population is becoming ever more widespread: more than half of the population receives a salary much less than its average. In addition, a significant number of people are paid even less than the minimum level. Also this year, there remains the unresolved issue of providing decent wages for public sector employees.

   The wage arrears is also an acute problem: in 2013 its size increased. The efforts of the government to combat this adversity remain ineffective giving no hope for improvement.

   Occupational safety is essential to ensure the right to work. Even the official statistics on industrial accidents and occupational diseases in Ukraine shows that the number of cases exceeds the level of European statistics.

   The number of Ukrainians traveling abroad surges annually and, consequently, the issue of protection of their rights is becoming more acute. However, Ukraine is in no hurry to ratify the necessary conventions of the International Labor Organization (ILO). Also, often the work of diplomatic institutions of Ukraine abroad responsible for legal assistance to migrants concerning protection their rights and freedoms was ineffective.

   It is noteworthy that the actions of public bodies responsible for the protection of labor rights were not systematic and effective. In addition, the state has failed to create adequate conditions for trade unions to protect their rights. At the same time, the legal mechanisms that are designed to protect trade unions and trade union activists in particular remain ineffective.   

   2. Guaranteeing employment   

   Today two laws of Ukraine control the reduction of unemployment: “On Employment" and “On compulsory state social insurance against unemployment”. The said laws define the concept of unemployment and provide measures to overcome it. In order to control unemployment the State Employment Service was created.

   According to official data of the State Statistics Committee of Ukraine[2] as of June 2013 the unemployment rate in Ukraine (using the method of ILO) makes 8% of the working economically active population, which is approximately 1,643,000.

   However, according to information from the same source, the number of registered jobless as of September 2013 makes 1.5 % of the working economically active population or 422,100 men. Moreover, beginning-of-year unemployment rate was 2 %, so the figures indicate that the number of registered jobless in Ukraine decreased. But does this mean that the unemployment situation has improved?

   According to the same State Statistics Service of Ukraine, as of September the number of people receiving state unemployment benefits makes 326,900, and the average amount of benefit is ₴1,108, i.e. the subsistence level.

   Consequently, not all jobless in Ukraine are registered with the State Employment Service. Thus, only a small portion of jobless get real government benefits. It should also be noted that the meager amount of assistance is not a motivating factor for the registration of unemployed in Ukraine.

   There is an interesting statistics on the job placement of the registered unemployed. In September 2013 there were 49,300 of such individuals representing 9.6% of the registered unemployed.

   The figures speak for themselves. The effectiveness of public policy in the sphere of employment is about 10 % of the needs. And if we take into account the unemployment rate according to ILO methodology, the effectiveness of government measures to control unemployment will make approximately 2%.

   It is difficult to take into account the state financial aid: it is often so meager that it might better be called a small moral compensation.

   It should be noted that every worker officially employed pays insurance contributions for compulsory social insurance, which is used to form the budget of the Fund of Obligatory State Social Insurance of Ukraine covering the cases of unemployment.

   In this case, the registered jobless person is entitled to receive state unemployment benefits no more than 360 days within 2 years.

As can be seen from the above, the system of material assistance for unemployment in Ukraine can hardly be called fair.

   It is also necessary to pay attention to the dynamics of employment over the last year. According to the ILO, as of December 2012 the unemployment rate in Ukraine amounted to 8.1% of the economically active working age population, which is approximately 1,656,600 men. The average unemployment benefit for the same period made ₴1,027. Thus the unemployment situation in Ukraine during the first six months of 2013 remained almost unchanged.

   So, at this point the state is not able to provide real assistance to the unemployed both in terms of financial support, and in terms of promoting employment and changing the specialty.

   Obviously, it is worthwhile to change approaches to policy on employment. Perhaps we’d better at least shift the accent from fighting unemployment as a phenomenon to prevention of the emergence of unemployment. The effective economic policy and motivation of private initiative will encourage job creation.

   The irreality and far-apart-from-life official statistics suggests that the domestic authorities always pay lip service to the issue of employment. A great number of Ukrainian workers abroad is the best indicator of the failure of ineffective policy of Ukraine in the field of employment for the whole period of independence.

   It is easy to predict that in 2014, like in 2013, we shouldn’t deem any improvements in the field of job placing. The necessary changes may include doing away with formal state regulations and drastically change the economic and tax policies. The phenomenon of unemployment cannot be overcome only through retroacting; it should be managed comprehensively and with the help of preventive actions in the first place.    

   3. Ensuring decent working conditions   

   According to the European Social Charter “all workers have the right to a fair remuneration, which will provide an adequate standard of living for themselves and their families”.

   According to the Law of Ukraine “On State Budget of Ukraine for 2013” from January 1, 2013 the minimum wage makes ₴1,147, and from December 1, 2013 it makes ₴1,218. Although officially the minimum of subsistence is slightly below this amount, numerous experiments carried out by journalists prove that it is impossible to survive on that much money.

   “I didn’t include running costs for housing, for if I paid the monthly charge of ₴520, or even half of the sum, I would live on bread and water. Oh my, I all but forgot my mileage. I had to take out the money from the sum put aside for food. For my modest budget, of course, I cannot afford paying ₴2 and riding by shuttle-bus. I take a trolleybus as a cheaper transport. It means ₴1.5 savings every day. Not much, but I can save a little toward the end of the month,” writes journalist Yevheniya Somova, who conducted one of such experiments[3]. Even the strict austerity didn’t permit her to survive for ₴1147 a month. It should also be noted that this experiment was conducted in Volyn Oblast, while the level of prices, say, in Kyiv is higher on the average, so it is even harder to live on this money.

   The average salary in Ukraine is also not that impressive: in September 2013 the average salary in Ukraine amounted to ₴3261, the lowest was in Ternopil Oblast ₴2,312, the highest in Kyiv ₴4,967[4]. But even the average salary in Kyiv is unlikely to falls within the definition of a decent wage.

Fig. 1[5]. Distribution of workers according to the level of wages in September

   Moreover, as the diagram of distribution of workers according to the level of wages shows, more than half of the population receives wages below ₴2,500. In addition, the official statistics confirms that a sufficiently large population receives wages below the floor wage determined by the state.

   It is also important to note that in 2013 in Ukraine the motivating role of wages continued to fall, and in the income of population continue to enhance the role of various social payments.

    Fig. 2[6].

  Figure 2 shows that in the structure of population's incomes in Ukraine the size of wage is below 40%, while social benefits constitute more than 35%.

   During 2013 there was a pressing problem of determining the wages of public sector employees using the single scale of rates. In 2013, there remained the gap between the salaries according to the category for the workers of the first wage category at the level of ₴852. This amount is not only lower than the minimum wage, but it is below the cost of living as well. At the same time, in order to comply with the laws in force, the Cabinet of Ministers of Ukraine on March 27, 2013 adopted the Regulation no. 197 determining the official rate of pay at the level of minimum wage or ₴1,147. The salary based on the official rate of pay for workers of the first wage category is used only for calculating salary for employees of the sixth wage category and higher[7].

   At the beginning of 2013 it was suggested to set the baseline salary for the first wage category at the level of the minimum wage as of April 1; however, according to the letter of the Ministry of Social Policy of Ukraine of 01.29.2013 no. 959/0/14-13/13, “according to the information of the Ministry of Finance (letter dated 29.01.2013 no. 31-07240-03-5/2649), setting from April 1 salaries of the first wage category of the single tariff scale at the level of the minimum wage approved by the Law of Ukraine “On State Budget of Ukraine for 2013 ", would require additional expenditures from the state budget in excess of ₴39bn.

   The real sources of financing such expenditures are not available. The lack of additional resources to ensure the specified increase will lead to negative consequences such as unbalancing the budgets of all levels, emergence of arrears of wages, going on forced LWOPs or downsizing, etc., which will cause even more tension in society”[8].

   It should be noted that the issue of wages of public sector employees from 1 January 2013 was resolved only at the end of March, and therefore for almost three months the workers received wages at rates that were effective from December 1, 2012 (according to interpretation of the Ministry of Social Policy of Ukraine[9]) and then they had to get additional payment for the aforementioned period. Considering the overall budget deficit, this unresolved issue could be one of the reasons for the increase of debt for wages in the public sector.

   According to Article 4 of the European Social Charter the right to a fair remuneration includes among others the right to higher wages for working outside regular hours. Today, in Ukraine, nobody fulfills the requirement of paying a dual rate for working outside regular hours. On a regular basis scheduled and unscheduled inspections are carried out (such as one recently conducted in Kharkiv)[10], which solve the problems of a company, though they fail to solve systemic problems in ensuring adequate remuneration for working outside regular hours.

   The above facts concern primarily regular personnel management, while in Ukraine there is a systemic problem of illegal employment and under-the-table payment of wages. A person officially unemployed is more vulnerable; such employees are not subject to requirements of labor legislation in terms of providing for the minimum wage, paid vacation and sick leave, providing contributions to the pension fund and proper pension provision in the future. The problem of decent remuneration is closely related to the solution of the problem of the absence of proper regulation of personnel management.

   Moreover, there is also the issue of timely payment of wages. According to article 115 of the Labor Code of Ukraine “Wages are paid to employees regularly on working days within the deadline set by collective agreement or regulation of the employer agreed with the elected body of the primary trade union organization or other authorized representative collective bodies (and in the absence of such authorities with representatives elected and empowered by the workforce), but at least twice a month at the interval of not more than sixteen days, and not later than seven days after the expiry of the period for which the payment is made”[11]. A similar provision is also contained in Law of Ukraine “On labor” adopted on March 24, 1995[12].

   Unfortunately, these provisions, although they were prescribed in the legislation, have not been fulfilled in full. In Ukraine there is an urgent problem of systematic non-payment or arrears. According to UNIAN, the arrears of wages in Ukraine as of October 1 amounted to ₴1.02bn[13].

   According to the State Statistics Service of Ukraine, the wage delays range within ₴890—1,100 mln per month. In the period from January to August, the highest level of debt was in March and reached 1,102.5 million, while the lowest level of debt was registered in January which made ₴893.7 mln.

   The amount of arrears of wages also varies depending on the oblast. The relatively low values ​​were recorded in Chernivtsi, Rivne and Volyn oblasts. The highest level of debt with employers was registered in the Donetsk Oblast. In Kyiv, at the beginning of the year, the level of arrears of wages was ₴1.4 mln, but in August it surged up to ₴152.1 mln[14].

   Arrears of payments of wages increased by 4.1%[15] in September, and the total of arrears from the beginning of the year rose by 14.6%[16].

 

Fig. 3[17]. Dynamics of wages payable (as of the 1st each month, in mln UAH)

   According to the UNIAN, the debts of economically active enterprises amount to 53.5 %, while the debts of bankrupt enterprises reach 41.3 % of total debt. The lowest level of debt is observed in the field of information and telecommunications which amounts to ₴1.1 mln, while in the industry the arrears are the highest and reach ₴463.4 mln[18]. The arrears of payments of wages also surged in transport, warehousing, healthcare and postal and courier services.

By and large the statistics show that the arrears of wages will continue surging at the close of year. The situation slightly improved in late summer, but the statistics for September indicated that the level of debt began to rise again. The highest level of non-payment occurred in the industry.

   Interestingly, Prime Minister Mykola Azarov called the arrears of wages unacceptable and urged local authorities to strictly control the facts of these nonpayments[19]. At the same time, President of Ukraine Viktor Yanukovych instructed “Mykola Azarov, Anatoly Mohiliov (Chairman of the Council of Ministers of Crimea), all heads of oblast, Sevastopol and Kyiv city state administrations in the prescribed manner to take steps to settle arrears for compulsory state social insurance, as well as prevent the formation of such debts in the future. The deadline: December 20, 2013”[20]. However, nobody knows the ways to pay off debts. In addition, we see that the authorities began to fret over wage arrears only at the end of the year, while during the year they did about nothing to pay off such indebtedness.

   Moreover, Minister of Social Policy of Ukraine Nataliya Korolevska denies the very existence of any arrears of wages as of October 25, 2013[21]. But this past October 23, Prime Minister of Ukraine Mykola Azarov acknowledged in his speech that problems with the payment of wages and social benefits did exist. However he explained the problem not by the budgeted deficit, but by the ineffectiveness of local officials[22]. As a matter of fact the Ministry of Finance proposed to local authorities to find the money to pay off salaries on their own[23]. What will the next steps to solve these problems be? In the meantime, there’s no answer whatsoever. At the same time the mounting wage arrears continue to surge.   

   4. Job safety guarantees

      According to the official figures, for the first 9 months of 2013 8409 industrial accidents occurred in Ukraine, which affected 8,670 people, including 1,200 dead[24]. For comparison, in 2012 - 2013 in the United Kingdom of Great Britain and Northern Ireland as a result of industrial accidents only 113 people perished[25], 529 deaths in France in 2010[26], 557 fatal accidents in 2010 in Germany[27]. Thus, the death rate from industrial accidents in Ukraine is much higher than in the leading EU countries, even without allowing for the difference in the number of working-age population.

   67% of the accidents occurred due to organizational reasons of non-compliance with safety instructions, failure to comply with duties, violations of traffic safety (flights), and violation of technological process[28]. The main events leading to accidents at work include: incidence of an injured in movement, action of moving and rotating parts of equipment, machinery, landslide, gob caving, and face fall[29]. Most accidents happened at coal mining companies in the Donetsk Oblast[30].

   Nevertheless, the above data reflect official picture only: the Fund receives information only for cases in which the victims were working legally and paying the required insurance fees. At the same time, many employees, despite hazardous conditions, often employ labor without proper legal registration of employment; therefore information about these accidents do not appear in official statistics.

   Thus, the deaths of miners at bootleg mines are masked as ordinary accidents: “The corpse may be washed, horilka poured in the throat and the body thrown away on a heavy traffic highway. Also, bodies in dirty clothes may be left on bus stops near bootleg mines. In mining towns people tell about cases when miners were simply covered with soil in these mines when sudden inspections occurred.”[31] At the same time, working at bootleg mines is more dangerous than at legal ones, and therefore leads to more accidents: “The problems with job safety exists on private and state mines, but the situation with bootleg mines is catastrophic. The tunnel is too narrow and too close to the surface, the soil is fragile and can easily collapse. In bootleg mines there are many professional miners who are well aware of the risks but ignore discipline. In legal mine colleagues will not allow to light a cigarette, because it may cause an explosion, while in the bootleg mines all miners smoke,” says one of the mine rescuers[32]. Over time the situation only gets worse as illegal coal mining method of survival of individual families has turned into a lucrative business subordinate to local criminal organizations.

   There may be cases when on the legal industrial project occurs an accident, which is not officially reported. In September 2013, in Rivne, during construction work a man was traumatized. On the ground of this fact legal proceedings were instituted under art. 125 of the Criminal Code of Ukraine, but investigative actions were not carried out because, according to Ivan Onyshchuk, the Deputy Head of territorial administration of the State Committee of Ukraine on Industrial Security, Labor Protection and Mining Supervision in Rivne Oblast, “according to the legislation, the tragic incidents at the construction we must be reported by the business entity, that is, the employer of the person or organization, on whose territory the accident occurred. The designer of the construction works and the contractor was the private company “Remtekhbud” and the customer was Rivnerada Deputy Olexandr Babat. Up to now, they have failed to report the accident. [... ] I spoke with the customer of this construction Babat. He said the victim was a stranger who just walked onto the construction site and had no relation to the building. There is currently no reason to say that this man worked without official registration and therefore his employers refuse to have anything to do with him.”[X][33]. Even if the victim did not really take part in constructing and came there illegally, the company somehow did not comply with the requirements of DBN A.3.2 -2 -2009, as paragraph 4.13 of this document provided that “during the building operations [...] the customer must identify one of the contractors responsible for the protection of labor at the project, which should [...] prevent admission of unauthorized persons to the construction site.”

   In April 2013, the Law of Ukraine "On Approval of the National Social programs for improving safety, health, and environment in the years 2014-2018” was adopted, which envisaged a series of measures aimed at improving working conditions and bringing them closer to the EU standards. among other things the program the program includes as follows: bringing normative legal acts on labor protection in accordance with the requirements of international and European legislation, improvement of the state and public control over observance of labor safety, improvement of labor safety management, prevention of risks of occupational injuries, occupational diseases and accidents, raising the bar of culture of labor safety, introduction of economic incentives for the improvement of labor safety, etc. As a result of the implementation of the program on-the-job fatal injury rate in Ukraine before 2018 should fall to 430 accidents per year. Time will tell whether this initiative of the government will improve real situation with ensuring labor safety, or it will remain on paper.   

   5. State control over the observance of labor rights

   The violations of labor rights have remained fairly common in Ukraine. Thus, according to sociological studies relied upon by the Minister of Social Policy of Ukraine, “over 40% of respondents have encountered violation of their labor rights and labor rights of their relatives. Unfortunately, many's the time in Ukraine we come upon cases of non-payment of wages, failure to carry out its indexation, improper execution of employment documents and so on.

   Also, the General Prosecutor of Ukraine confirms the fact that there are numerous facts of deliberate non-payment of wages by the managers of business entities. For example, the public prosecutor's office of Novovolynsk, Volyn Oblast, revealed that employees of an enterprise deliberately didn’t pay ₴2.85 mln (while inpayments exceeded ₴7 mln.)[34].

  Similarly, in the Kyiv Oblast, the officials of a limited liability company made an absolutely unfounded decision not to pay wages totaling ₴6.7 mln. According to the audit conducted by the Irpin Prosecutor's Office, the information about the above criminal offense was entered in the Unified Register of pre-trial investigations and materials were sent for pre-trial investigation to the MIA bodies. Such criminal proceedings were initiated by prosecutors in all oblasts.

    One of the causes of violations by employers of the laws on wages consists in insufficient implementation of controlling powers of the inspection bodies in this field, including the State Inspection of Ukraine on labor, departments of the Ministry of Income and Charges of Ukraine and so on. The officials of local administrations and local authorities do not always take sufficient measures to ensure payment of wages on their relevant territories[35].

   In addition, the Prosecutor General of Ukraine found violations of art. 259 of the Code of Labor Laws of Ukraine in the central executive bodies; the latter did nothing to provide adequate control over the observance of labor legislation at the enterprises under their jurisdiction which had wage arrears.

   Given the above, we can come to the conclusion about the inefficient activity of the state concerning the protection of labor rights.   

   6. Protection of labor rights of migrant workers   

   Today, the external labor migration of Ukrainian population is a reality of the 21st century, which touches on all facets of society, and therefore requires comprehensive study and adequate response of the nation through the formation and implementation of national migration policies.

   The branch-wise and regional mass unemployment, depressed wages, and pensions are the primary ingredients that make a substantial part of Ukrainian citizens with higher education to leave the country in the hope to find a prestigious job and have a decent income abroad.

   According to the data referred to in the report of the International Organization for Migration for 2013[36] there were 1.2 million migrant workers, or 3.4 % of the population of respective age. Men prevailed among labor migrants; their share is 2/3 of the total number of labor migrants. The major recipient countries of our labor migrants are the Russian Federation (43%), Poland (14%), Italy (13%), and the Czech Republic (13%). Other recipient countries include Spain (5%), Hungary (2%), and Portugal (2%). It is important to note that although the above data are official, but nobody really knows the exact number of Ukrainian labor migrants working abroad. The complexity of calculating such data is related to the existence of two qualitatively different statuses of migrants: on the one hand, there is a legal limited labor migration; on the other hand, there is mass illegal labor migration. According to unofficial data, the total number of Ukrainian labor migrant workers, which includes legal and illegal migrant workers, estimates on the average from various sources from three to seven million people.

Uncontrollability of the migration process, lack of reliable information regarding the total number of Ukrainian migrants, who work abroad, makes it harder to assess the scale of labor migration and predict its effects. The position of a migrant worker on the labor market abroad, including her/his privileges, depends on her/his status: legal or illegal. The legal migrants have the broadest scope of rights, and their security is backed by the norms of international laws contained in bilateral or multilateral agreements concluded by Ukraine. The legal status of such persons is defined in the European Convention on the Legal Status of Migrant Workers (24.11.1977), Agreement on cooperation in labor migration and social protection of migrant workers (15.04.1994), Convention on the Legal Status of Migrant Workers and their families of the Commonwealth of Independent States (14.11.2008), as well as a number of bilateral agreements. In particular, to protect their rights these workers have the right to appeal to the courts and administrative agencies in the countries of employment, appeal to the ombudsman, appeal to the diplomatic and consular missions.

   The legal status of illegal migrant workers is another problem. In fact, they do not have work permits, and hence cannot be subjects of labor relations, which makes it impossible to protect their labor rights legally. Hence, there is a situation where an employee may not appeal to the relevant authorities to protect her/his rights and has to put up with all violations committed by employers and intermediaries. In particular, Ukrainians face a number of problems abroad, related to:

   - Illegal stay leading to social insecurity, dependence on employers and intermediaries, inhumane living and labor conditions, and trafficking in people;

   - lack of social insurance; most of the “workers” are not eligible for any kind of social security, benefits, holidays and more;

   - lack of information on peculiarities of labor and migration laws of the host country;

   - double taxation of household income, which expresses itself in the fact that at first the Ukrainian pays tax while transferring funds from the host nation, then the common taxes are paid by her/his family in Ukraine. There is also a separate tax on income charged by Ukrainian banks for the service;

   - lack of favorable conditions for their return to Ukraine.

  Protection of rights and legitimate interests of Ukrainian citizens working abroad is the responsibility of the state. The policy of labor migration regulation should be formed in two directions: on the one hand, raising wages in Ukraine and creating conditions for reducing the number of migrant workers, on the other hand, protecting the rights of citizens of Ukraine abroad.

   Unfortunately, Ukraine has no labor migration policy, including long-term strategy and effective mechanisms that could fundamentally change the situation on the labor market.

   For the protection of migrant workers, there is a number of tools that are available in the arsenal of the ILO, and in the first place in its conventions, including ILO Convention on migrant workers no. 97 (1949) and Convention on the abuses in the field of migration and on ensuring equal opportunities and equal treatment of migrant workers no. 143 (1975). There is also another important document in this area: the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (1990).

   The above-mentioned Conventions cover the entire process of protecting the rights of workers during their work. It is also important that the standard provisions of ILO Conventions apply to all workers, regardless of their status, qualifications and employment. In addition, article 8 of the Convention no. 143 provides that a worker, who has lost her/his job, cannot be deported from the country before the termination of the contract. If this plain rule is legalized, the labor migrant will get extra protection against the violation of her/his rights by the employer, who, abusing her/his office, understands that the employee is “ready for anything” so s/he wouldn’t be sacked, because the loss of job for migrant may affect her/his subsequent exile from the country.

   Unfortunately, Ukraine is in no hurry to ratify the necessary conventions of the ILO. Ukraine's accession to the above conventions can benefit both Ukrainian migrant workers, and the state. If the Verkhovna Rada of Ukraine adopted the law specifying the rights and obligations of Ukrainians traveling abroad for job placement, government guarantees, responsibilities of relevant agencies, their responsibility in the case of failure of the rights and freedoms of migrant workers, it would have been an important step in this direction. Currently, the Ministry of Social Policy of Ukraine is drafting a law “On labor migration abroad." However, no one knows either in what redaction or when it will be taken.

   Currently, the Verkhovna Rada of Ukraine only “recommends” to resolve the policy of labor migration abroad; particularly on 05.11.2013 entered into force the Resolution of the Verkhovna Rada of Ukraine “On the recommendations of the parliamentary hearings about “The Ukrainian labor migration: state, problems, and solutions” no. 680-18; however, no clear schedule of their implementation has been suggested.

   Ukraine should take care of migrant workers, must also enhance efficiency of foreign diplomatic institutions of Ukraine rendering legal assistance to migrants, ensure protection of the rights and freedoms of Ukrainian citizens abroad, sign bilateral contracts and agreements, including the mutual recognition of the record of service, social and pension systems, avoidance of double taxation, as well as with the aim to reduce the scale of labor migration to increase competitiveness in the domestic labor market and establish favorable conditions for the return of migrant workers to Ukraine.

   7. Ensuring of the rights of trade unions

   Ukraine as a member of the ILO since 1954, having ratified ILO Conventions, assumed duty to maintain the principles and rights enshrined in the Charter and the Declaration of Philadelphia to ensure effective implementation of these documents, as well as to inform governing bodies of ILO about the measures taken for their application.

   Analysis of the information of the member organizations of the Federation of Trade Unions of Ukraine indicates that these duties are performed not fully because the country does not comply with certain standards and ILO Conventions and national legislation is not properly adapted to international instruments. No proper measures are taken to carry out the recommendations of international bodies concerning the national reports on the implementation of conventions.

   In particular, there are frequent gross violations of the right to freedom of association, which is one of the most important among the norms of international laws. According to the trade unions, the Ukrainian employers continuously and systematically violate ILO Conventions no. 87 on Freedom of Association and Protection of the Right to Organize and no. 135 on the protection of representatives and opportunities they are provided with. They give direct evidence of unlawful interference in the statutory activities of trade unions and their associations by government officials and employers, obstruction of trade union organizations, especially in the newly created legal entities, barring by employers the free visits of elected members of trade unions to the company where the members of their trade unions work. “The activists and labor leaders, having created an independent trade union organization and started to demand compliance with Ukrainian and international legislation, often enter into an unequal battle with the government, capital, and even criminals. They often try to bribe trade-union members, threaten them with dismissal and intimidate them and their families. In such cases the trade-union members turn to militia, prosecutors, but the latter do not provide real protection of rights,” Mykhailo Volynets, Chairman of the Confederation of Free Trade Unions of Ukraine. According to Andriy Bondarenko, Deputy Chairman of Vinnytsia Oblast Trade Union Organization of Workers, the trade union activists, who are fighting for better working conditions and decent wage, are illegally dismissed from work and are not allowed to enter the enterprises. “The most active members undergo repressions: intimidation, threats, physical violence, and even placement in a psychiatric hospital,” said Bondarenko.

The consequences of the struggle for decent work the workers may feel at the very outset of a trade union organization. Serhiy Stynka, Head of the Trade Union Organization of Employees of Izmail Commercial Seaport, said: “When we set up an independent primary trade union organization, the administration immediately found an interesting method of “cooperation”: the chief manager of the port ordered to transfer the main founders of the trade union organization “to a regular job” to another production site at the god-forsaken dock outside the city. Our new job assignment was cleaning debris from the mooring area.”[37]

   Similarly, with the creation of the primary trade union organization at “Novodruzhevska” mine of Lysychanskvuhillia Private Company the administration of the company began nagging its members. Head of the Trade Union Serhiy Marchenko, who himself and his family were seriously threatened with physical violence. Due to constant harassment ten union members failed to stand up to pressure and put in applications for withdrawal from it.

   Another incident occurred this summer with the head of the newly formed independent trade union at the fund of social insurance against accidents at work and occupational diseases of Ukraine in Sverdlovsk. There the fund administration began actively sending to various government agencies requests for information, in which it called the legitimacy of the establishment of the trade union in question. With these actions it violates article 36 of the Constitution of Ukraine, which proclaims the right to freely choose and membership in professional unions[38].

   Avoidance of certain employers' organizations to conduct collective bargaining, conclusion of trade agreements, lack of mechanisms to encourage employers in Ukraine to conclude collective agreements and practice of bringing to book for failure of their provisions creates preconditions for breach of ILO Convention number 98 on the application of the right to association in trade unions and collective bargaining and the no. 154 on the promotion of collective bargaining.

   After analyzing the information received from member organizations throughout the year, the Federation of Trade Unions of Ukraine maintains that there were facts of pressure on union leaders, heads and members of union committees in the discharge of their functions of protection of labor and social and economic rights of union members (1.6%), illegally discharged heads and activists of primary trade union organizations (13%), employers shied away from collective bargaining to conclude collective agreements (6.5%), most of the violations concerned the failure by employers to fulfill their obligations under the collective agreement regarding the transfer of withheld from wages union dues on account of the primary trade union organizations (60%), did not transfer money intended for cultural work, physical training and health improvement as required by law (3.2 %). No information was provided on request of unions concerning working conditions and wages of employees, state of the observance of collective agreements (4.8%).

   The most frequent violations of the rights of trade unions occur in the transport sector, housing and communal services, forestry, agriculture, construction, and in construction of vehicles and agricultural machinery.

   Thus, the least possibilities to protect their labor rights have trade unions of transportation sector. “In fact, because of the conflict of laws in Ukrainian legislation, these trade unions in Ukraine are even deprived of such effective tool to protect their rights as a strike,” said Maksym Shcherbatiuk, Program Director of the Ukrainian Helsinki Human Rights Union. The same confirms Veniamin Tymoshenko, Head of the Trade Union of Flight Attendants of AeroSvit Co., which had often to deal with violations of labor rights. He personally won several cases in court, but the situation has not improved yet. When workers announced their intention to strike, the court slapped a ban[39].

   At the moment the case of Aerosvit Co. (Veniamin Vyacheslavovych Tymoshenko and others against Ukraine) is in the European Court of Human Rights, which can change the entire jurisprudence of Ukraine and enable the transportation sector to publicly express indignation at the actions of their employer. It should be noted that the International Organization “The European Trade Union Confederation” took part of Ukrainian aviators standing up for protection of the right to strike. They sent to Strasbourg a thorough analysis of international law governing the right to protest.

   The Federation of Trade Unions of Ukraine is currently cooperating with the Ministry of Social Policy, territorial bodies of the State Inspection of Ukraine for Work, and Procuracy of Ukraine. During the year, with the help of governmental authorities, it became possible to resolve some conflicts and resolve existing violations of the rights of trade union organizations. Thus, in 2012, the Unified Register of violations of trade union rights filed 52 enterprises, where 62 violations were found. Of these, as of June 1, 2013, 37 violations were removed at 28 factories. But this is only half of the recorded violations[40]. The human rights advocates maintain that the state still has not created the proper conditions for trade unions to protect their rights. The legal mechanisms designed to protect trade unions, and trade unionists in particular, remain ineffective.   

   8. Recommendations

   It is advisable to:

   1) increase the size of unemployment benefits to the subsistence level, and make the necessary changes to legislation, which gives warranty on receiving this benefit at this level;

   2) reduce the high unemployment among the most vulnerable population, especially young persons, people approaching retirement age and people with disabilities;

   3) increase the share of wages in GDP and production costs;

   4) harmonize the minimum wage according to the requirements of the European Social Charter and implement effective indexation of income;

   5) ensure effective differentiation of wages in the public sector through the application of a single tariff, eliminate the practice of setting salary (wage rate) and employee wage category in an amount lower than that specified by the law on labor remuneration;

   6) take measures to improve labor remuneration in the government bodies in order to improve the social protection of ordinary personnel, elimination of hidden wages masked as various prizes and bonuses, which are more dependent on loyalty to management, rather than on performance;

   7) reduce the arrears of wages for employees in the public sector and take measures to reduce the debt in companies and organizations of all forms of ownership;

   8) improve the system of job safety in order to reduce occupational injuries and illnesses, including such measures as improving legislation in this area, as well as implementation of prevention programs;

   9) improve monitoring of compliance with standards and requirements in the field of job safety and ensure prompt and effective investigation of accidents;

   10) improve the state control over the observance of labor rights and establish of effective mechanisms for responding to these violations;

   11) conclude bilateral agreements on employment and social protection of migrant workers with the country where a significant number of our fellow citizens is employed and where such agreements have not been concluded;

   12) ratify international documents which enhance the protection of migrant workers in the field of employment and social protection;

   13) ensure strict observance of the rights of trade unions to promote the development of a strong and independent trade union movement.

 

 

[1] Prepared by M.Shcherbatiuk, UHHRU.

[2] http://www.ukrstat.gov.ua

[3] Experiment: journalist lived for a month for a minimum wage: http://www.volynpost.com/news/15446-eksperyment-zhurnalistka-prozhyla-misiac-na-minimalnu-zarplatu

[4] Average salary by region in 2013, http://www.nibu.factor.ua/ukr/info/socposobiya/sred-zarp-reg/sred-zarp-reg_13/

[5] State Statistics Committee of Ukraine http://www.ukrstat.gov.ua/

[6] State Statistics Committee of Ukraine http://www.ukrstat.gov.ua/

[7] Single wage rates distribution for 2013: http://hrzone-ukraine.blogspot.com/2013/04/2013_14.html

[8] Letter of the Ministry of Social Policy "On wages of public sector employees" from 29.01.2013 no. 959/0/14-13/13 http://hrzone-ukraine.blogspot.com/2013/04/29012013-959014-1313.html

[9] About the payment of remuneration of labor in the branch in 2013: http://triola.com.ua/TMPTarNet/TMPTarNet.html

[10] In pursuance of the request of the State Labor Inspectorate the enterprise began complying with labor legislation: http://tdizppkharkiv.com/news/na_vikonannja_vimog_derzhavnogo_inspektora_praci_pidpriemstvo_pochalo_dotrimuvatisja_zakonodavstva_pro_pracju/2013-11-19-297

[11] Labor Code of Ukraine no. 322 -VIII, December 10, 1971.

[12] Law of Ukraine “On remuneration of labor” no. 108/95-VR of March 24, 1995.

[13] http://economics.unian.net/rus/news/179125-v-ukraine-zadoljennost-po-zarplate-vyirosla-na-41.html

[14]  http://ukrstat.org/uk/operativ/operativ2013/gdn/zvz/zvz2013_u.htm

[15] http://economics.unian.net/rus/news/179125-v-ukraine-zadoljennost-po-zarplate-vyirosla-na-41.html

[16] http://kirovograd.comments.ua/news/2013/10/28/173111.html

[17] State Statistics Committee of Ukraine http://www.ukrstat.gov.ua/

[18] http://www.unian.ua/news/592217-derjstat-v-ukrajini-skorotilasya-zaborgovanist-iz-zarplati.html

[19] http://news.chortkiv.net.ua/sumna-statystyka-po-zarplatah-v-ukrajini-zaborhovanist-roste-serednya-zarplata-zmenshujetsya/

[20] http://uaonline.com.ua/novyny_77402.html

[21] http://finance.obozrevatel.com/business-and-finance/56821-korolevskaya-zadolzhennosti-po-zarplate-v-ukraine-net.htm

[22] http://mignews.com.ua/ru/articles/147594.html

[23] http://www.theinsider.com.ua/rus/business/5280b8dc7bb52/

[24] Insurance Fund for Industrial Accidents and Occupational Diseases of Ukraine, insurance analysis of accidents at work and occupational diseases for 9 months in 2013, http://www.social.org.ua/view/3831

[25] Statistics on fatal injuries in the workplace in Great Britain in 2013, http://www.hse.gov.uk/statistics/pdf/fatalinjuries.pdf

[26] INRS, Accidents du travail, http://www.inrs.fr/accueil/accidents-maladies/accident-travail.html

[27] Italy is top of European table for work-related deaths, http://libcom.org/blog/italy-top-european-table-work-related-deaths-16012013

[28] Analysis of insurance accidents at work and occupational diseases for the first quarter of 2013, http://www.social.org.ua/view/3194

[29] Ibid.

[30] Insurance Fund for Industrial Accidents and Occupational Diseases of Ukraine, insurance analysis of accidents at work and occupational diseases for 9 months in 2013, http://www.social.org.ua/view/3831

[31] Death of illegal miners masked during accidents, 28.02.2013, http://gazeta.ua/articles/opinions-journal/_smert-pracivnikiv-nelegalnih-shaht-maskuyut-pid-neschasni-vipadki/484690

[32] Dug-out billions. Who controls the illegal coal business in the Donbas: http://tyzhden.ua/Society/73562/PrintView

[33] Why did an unknown person almost die at the construction controlled by the Rivnerada deputy?: http://vse.rv.ua/zhittya/1378386367-chomu-na-budivnictvi-deputata-rivneradi-led-ne-zaginuv-nevidomiy.html

[34] The office of public prosecutor protects the rights of citizens to timely receive  their wages http://www.fpsu.org.ua/napryamki-diyalnosti/virobnicha-politika-ta-kolektivno-dogovirne-regulyuvannya/1962-organi-prokuraturi-na-zakhisti-prava-gromadyan-svoechasno-otrimuvati-oplatu-pratsi

[35] Ibid.

[36] http://iom.org.ua/en/pdf/Eng% 20FF_F.pdf

[37] In Ukraine, the trade union activists often become victims of reprisals committed by the employer http://helsinki.org.ua/index.php?id=1381140428

[38] Unprotected union: is it risky to defend workers' rights ? http://smi.liga.net/articles/2013-10-22/11292939-nezakhishchen_profsp_lki_chomu_nebezpechno_v_dstoyuvati_prava_trudyashchikh.htm

[39] The trade union activists in Ukraine are often victims of reprisals by their employers http://helsinki.org.ua/index.php?id=1381140428

[40] http://www.fpsu.org.ua/napryamki-diyalnosti/pravovij-zakhist/1062-informatsiya-pro-porushennya-prav-profspilok-u-2012-rotsi