Beware - The Labour Code!

Statement by the Ukrainian National Platform of the Eastern Partnership Civil Society Forum concerning the draft of the Labour Code of Ukraine

Ukrainian National Platform of the Eastern Partnership Civil Society Forum is concerned about the adoption procedure and a number of provisions of the draft Labour Code of Ukraine, which is pending in the Parliament of Ukraine (the bill №1658) and adopted by the Parliament in first reading on November 5, 2015 (hereinafter – Draft) as well as a closed and non-transparent character of the work on this document in the Verkhovna Rada Committee on social policy.

1.  The cause for concern are, in particular, the following provisions of the Draft that do not meet Ukraine's commitments and practices of the Member States of the European Union as the members of the International Labour Organisation:

1.1. Regulations that make possible to save and "legitimize" the already existing practice in Ukraine, when the content of a labour agreement between employer and employee is announced to be a "trade secret" (provision included in the text of agreement itself or reflected in a separate "enactment of the employer"), that creates the situation when workers are actually deprived of a real opportunity to effectively protect their rights, because it is forbidden to them to make aware the union to which he or she belongs, advocate or any other lawyer of the text of their employment contracts.

1.2.       Provisions, that deprive the effective trade union organisations, existing in Ukraine, of opportunities to protect individual and collective rights of their members, allowing the employer to reconcile all the matters relating to individual rights of a worker or working conditions of a particular category of workers, with the most loyal or controlled union (where they are not members), ignoring the workers organisation to which they actually belong. Specifically, everywhere throughout the text of the Draft, concerning the issues regarding which the employer needs to have approval of the trade union representatives or consultation with them, the phrase "elected body of the primary trade union organisation" is consistently used (with only one exception) in the singular without specifying whether this provision apply exactly the elected body of the trade union, to which they belong.

2.  The Draft contents a separate Sixth Book specially devoted to the issue of social dialogue, but it consists of three short articles only with reference to the orderliness of the current Laws of Ukraine "On Social Dialogue in Ukraine", "On Trade Unions, their Rights and Guarantees", "On the employers' organisations and their associations, rights and guarantees of their activity"/ which in a number of their provisions violate the Constitution of Ukraine and the ILO Convention №87 concerning Freedom of Association and Protection of the Right to Organise. In this way, the regulation of social dialogue is displayed outside the Draft Labour Code, it does not provide the principles of the social dialogue, neither defines the model of social dialogue, which will be implemented in Ukraine, nor the foundations of it (for instance its parties, subject, relevant bodies and forms of conduct). Uncertainty on the issues of how the social dialogue will be functioning in the Draft Labour Code make impossible implementation of other provisions of the Draft, which is particularly dangerous in a decentralized governance.

It is also not acceptable that the Working Group, formed by the Committee of Verkhovna Rada of Ukraine on Social Policy to finalize the draft Labour Code of Ukraine for the second reading during a half of a year of its activity, starting from November 13, 2015, not released officially any of its decisions or minutes. As a result, its position on the vast majority of the amendments, proposed to the Draft, remains unknown to the wide public actually before the date of the formal meeting of the Committee, aiming to "legitimize" the results of the Group’s work.

Trade unions, employers' organisations and entrepreneurs which use hired labour, who are not included to the Working Group but made through the Members of Parliament their proposals regarding the amendment provisions of the Draft, are denied the opportunity to attend the meeting of the Group where these proposals are discussed and argue their positions.

This situation is contrary to the officially supported by the Government of Ukraine objectives of the Eastern Partnership that include overcoming of existing economic and social inequality and gradual opening of EU labour market to Ukrainians, in particular, Chapter 21 "Cooperation in the Employment, Social Affairs and Equal Opportunities" and to the provisions of the Agreement on Association between Ukraine and the EU on labour standards, social security and promotion of social dialogue and strengthening the capacity of the social partners.

In this regard, Ukrainian National Platform calls for the Civil Society Forum of the Eastern Partnership to address the Government and the leadership of the Verkhovna Rada of Ukraine to ensure an open and public consideration of problematic issues of the draft Labour Code of Ukraine in a shape of Parliamentary Hearings with the vide participation of trade union organisations, employers and entrepreneurs, media and other interested civil society actors in order to achieve its conformity with the Constitution of Ukraine and international agreements, ratified by Ukraine.