Act of Ukraine on the Procedure for Settlement of Collective Labour Disputes (1998) (English)
UKRAINE
Act No. 137/98-VR of 3 March 1998 on the procedure for settlement of collective labour disputes
This Act defines the legal and organizational foundations for the functioning of a system of measures for the settlement of collective labour disputes, and is intended to achieve cooperation between the parties in labour relations during the settlement of collective labour disputes that arise between them.
GENERAL PROVISIONS
Section 1. Effective scope of the Act
The standards established by this Act apply to all employees and organizations created by them in accordance with legislation on representation and protection of their interests, and to owners of enterprises, institutions and organizations irrespective of the form of ownership, kind of activity and branch of activity, as well as to owners' organizations.
An employee is a physical person working in accordance with a contract of work for an enterprise, institution or organization, for their associations or for physical persons using hired labour.
Section 2. Concept of collective labour dispute
A collective labour dispute is differences that have arisen between the parties to labour relations as a result of:
a) the establishment of new or changes to existing working conditions and production environment;
b) the conclusion of or change to a collective contract or agreement;
c) the observance of a collective contract or agreement or of their provisions;
d) non-compliance with the requirements of labour legislation.
Section 3. Parties to a collective labour dispute
The parties to a collective labour dispute:
- at the production level are employees (discrete categories thereof) of an enterprise, institution, organization or their structural subdivision, or a trade union or other organisation authorized by employees, and the owner of the enterprise, institution, organization, or the body or individual authorized by him;
- at the branch or territorial levels, are employees of an enterprise, institution, organization of one or several branches (occupations)or administrative-territorial units, or they are trade unions, their associations or other bodies authorized by these employees, and owners, owners' associations or bodies or representatives authorized by them;
- at the national level, are employees of one or several branches (occupations) or trade unions or their associations, or other bodies authorized by employees, and owners, owners' associations or bodies (representatives) authorized by them on the territory of most of the administrative-territorial units of Ukraine, specified in Part Two of Section 133 of the Constitution of Ukraine.
A body authorized by employees to represent them is the only authorized representative of the employees until such time as this dispute ends.
Section 4. Forming the demands of hired workers or trade unions.
At the production level the employees' demands are formed and approved by a general meeting of employees or are formed by means of collecting signatures, and are considered effective when supported by the signatures of more than than one-half of the workforce of the enterprise, institution, organization or its structural subdivision. In addition to advancing the demands, the meeting of employees specifies the body or individual who will represent their interests.
The demands of employees at the branch, territorial or national levels are formed and approved:
- in those cases where the interests of the employees are represented by a trade union or association of trade unions, by a decision of an elected body of the relevant trade union or association of trade unions;
- in those cases where the interests of the employees are represented by other organizations authorized by them, by a conference of representatives of the enterprise, institution or organization elected by a meeting of the workers of the enterprise, institution or organization engaged in the labour dispute.
The demands of the employees, trade union or association of trade unions are set out in an appropriate protocol and sent to the employer or its authorised body.
Section 5. Procedure and time frames for consideration of hired workers' or trade unions' demands.
The employer or its representative must consider the demands of employees,, categories of employes, group of workers or trade union and to advise their representatives of its decision within three days of receipt of the demands.
If it is beyond the competence of the representative authorized by the employer to meet the demands, it must send them within three days of receiving such demands to the employer or to the appropriate higher management body which has the right to make a decision. Moreover, the period for consideration of the employees' demands by each agency must not exceed three days.
The total period for consideration of demands and making a decision (including delivery time) must not exceed thirty days from the day the employer or its representative receives these demands to the moment the employees or trade union receive notification from the employer or appropriate higher management body of the decision made by it.
The decision of the employer or appropriate higher management body shall be set out in writing and not later than the next day shall be sent to the authorized representative body of the other party to the collective labour dispute, together with its social and economic rationale.
Section 6. Timing the commencement of a collective labour dispute
A collective labour dispute begins from the moment when the authorized representative body of the employees, category of employees, group of workers or trade union receives notification from the employer or from its authorised representative of a full or partial refusal to meet the collective demands, and takes a decision not to agree with the decision of the employer or of its authorised representativethe body; or when the periods for consideration of demands stipulated by this Act expire without any reply being received from the employer.
The body representing the interests of the employees or of the trade union must advise the owner or the its authorised representative, the local executive authority, the local body of self-government covering the location of the enterprise and the National Arbitration and Conciliation Service of the commencement of a collective labour dispute in writing within three days .
SETTLEMENT OF A COLLECTIVE LABOUR DISPUTE
Section 7. Sequence for consideration and settlement of a collective labour dispute
Consideration of a collective labour dispute as regards issues stipulated
- in paragraphs (a) and (b) of Section 2 of this Act, shall be by the conciliation commission, and in the event a decision is not taken within the time frame set by Section 9 of this Act shall be by the labour arbitrator;
- in paragraphs "c" and "d" of Section 2 of this Act, shall be by the labour arbitrator.
Section 8. Conciliation commission
A conciliation commission is a body intended to work out a solution that can satisfy the parties to a collective labour dispute and shall be comprised of representatives of the parties.
A conciliation commission comprised of an equal number of representatives of the parties is created on the initiative of one of the parties, within three days of the moment a collective labour dispute commences at the production level, within five days at the branch or territorial level, and within ten days at the national level.
The procedure for appointing representatives to the conciliation commission is determined independently by each party to the collective labour dispute.
During the conduct of negotiations and preparation of the conciliation commission's solution its members are given time off work.
If necessary the conciliation commission engages the assistance of an an independent mediator; or consults with the parties to the collective labour dispute, with the central and local executive authorities, or with the bodies of local self-government and other interested bodies.
Organizational, financial and technical provision for the work of the conciliation commission shall be by agreement between the parties or shared equally if the parties have not reached agreement.
Section 9. Procedure for settlement of a collective labour dispute by a conciliation commission.
The parties to a collective labour dispute must provide the conciliation commission with the information necessary to conduct negotiations.
The members of a conciliation commission do not have the right to disclose information that is a state secret or other secret protected by this Act.
Collective labour disputes are considered by a production conciliation commission within a period of five days, by a branch or territorial conciliation commission within ten days, or by a national level conciliation commission within fifteen days from the moment the commissions are formed. These time frames can be extended by agreement between the parties.
The ruling of a conciliation commission shall be contained in a protocol and shall be binding on the parties and applied in accordance with the procedure and within the time frames established in the ruling.
After making a ruling on settlement of the collective labour dispute the conciliation commission shall cease its work.
Section 10. Independent mediator
An independent mediator is a person appointed jointly by the parties, who promotes the establishment of interaction between the parties and the conduct of negotiations and participates in the development of a mutually acceptable solution by the conciliation commission.
Section 11. Labour arbitration
A labour arbitration board is a body consisting of specialists, experts and others appointed by the parties which rules on the substance of a labour dispute.
A labour arbitration board is formed on the initiative of one of the parties or of an independent mediator within three days in the event that:
- a conciliation commission fails to agree to a ruling on the settlement of a collective labour dispute on issues covered in paragraphs (a) and (b) of Section 2 of this Act;
- a collective labour dispute arises concerning issues covered under paragraphs (c) and (d) of Section 2 of this Act.
The composition of the labour arbitration board in terms of numbers and individuals shall be defined by agreement between the parties. The chairman of the labour arbitration board is elected from among its members.
People's deputies of Ukraine, representatives of bodies of state power, bodies of local self-government and other individuals may also be members of the labour arbitration board.
Organizational, financial and technical provision for the work of the labour arbitration board shall be by agreement between the parties or shared equally if the parties have not reached agreement.
Section 12. Procedure for settlement of collective labour disputes by a board of labour arbitration
A collective labour dispute shall be considered by a labour arbitration board, participation by representatives of the parties and, where necessary, representatives of other bodies and organizations concerned.
The labour arbitration board must issue a ruling within ten days of its formation. This period may be extended to twenty days by a majority vote of the members of the labour arbitration board.
The ruling of the labour arbitration board shall be adopted by a majority vote of its members, set out in a protocol and signed by all its members.
The members of the labour arbitration board do not have the right to disclose information that is a state secret or other secret protected by law.
Implementation of the ruling of the labour arbitration board concerning the settlement of the collective labour dispute shall be mandatory if the parties have agreed on this in advance.
Section 13. Duties and rights of parties to a collective labour dispute
Neither of the parties to a collective labour may refuse to participate in the conciliation procedure.
The parties to a collective labour dispute, the conciliation commission and the labour arbitration board must use all possibilities not prohibited by legislation in order to settle a collective labour dispute.
If the conciliation bodies cannot settle the differences between the parties, the causes of the differences and the grounds for the parties' positions are submitted in writing to the attention of each of the parties to the collective labour dispute. In this case the employees or the body authorized by them or the trade union have the right to apply all methods permitted by legislation to achieve fulfilment of the demands advanced.
Section 14. Guarantees to independent mediators, to members of conciliation commissions and labour arbitration boards
While working on the conciliation bodies formed in accordance with this Act the independent mediators, members of conciliation commissions and labour arbitration boards are guaranteed the safeguarding of their position and average pay, as well as extension to them of guarantees provided by the Ukraine Labour Code to trade union officials and to members of boards of enterprises and of workforce councils.
Payments for work not less than their average monthly wage and compensation for expenses arising from participation in the conciliation procedure are made to the independent mediator, to members of the conciliation commission and of the labour arbitration board at the expense of the parties to the collective labour dispute and are apportioned by agreement, or are shared equally if the parties have not reached agreement
Section 15. National mediation and conciliation service
For the purposes of promoting the improvement of labour relations and preventing collective labour disputes from arising, of forecasting them and promoting their timely settlement and of providing mediation to settle such disputes the President of Ukraine shall establish a National Mediation and Conciliation Service.
The National Mediation and Conciliation Service shall consist of specialists and experts highly skilled in collective labour dispute issues and shall have branches in the Crimean Autonomous Republic and in the regions.
The rulings of the National Mediation and Conciliation Service shall be advisory in nature and must be considered by the parties to the collective labour dispute and by the appropriate central or local executive authorities, bodies of local self-government.
The National Mediation and Conciliation Service shall be financed from the State budget of Ukraine.
Regulations for the National Mediation and Conciliation Service shall be approved by the President of Ukraine.
The jurisdiction of the National Mediation and Conciliation Service shall include:
- registration of the demands advanced by workers and of collective labour disputes;
- analysing the demands, identifying and generalizing the causes of collective labour disputes and preparing proposals for eliminating them;
- training mediators and arbitrators specializing in settlement of collective labour disputes;
- drawing up lists of arbitrators and mediators;
- when necessary, verifying the authorisation of representatives of parties to a collective labour dispute;
- mediating the settlement of collective labour disputes;
- enlisting the participation of national deputies of Ukraine, of representatives of bodies of state power, and of bodies of local self-government in conciliation procedures.
Section 16. Interaction between National Mediation and Conciliation Service and parties to a collective labour dispute
At the request of the parties to a collective labour dispute, the National Mediation and Conciliation Service puts forward candidates for the post of independent mediator and for membership of a labour arbitration board, coordinates the work of the labour arbitration board, and sends its specialists and experts to take part in the work of the conciliation agencies.
Representatives of the National Mediation and Conciliation Service may be involved in the settlement of a collective labour dispute at all its stages .
The parties to a collective labour dispute, after observing the conciliation procedures provided by this Act, shall have the right to turn for assistance in settling this dispute to the National Mediation and Conciliation Service, which shall consider all the documents and send its recommendations to the parties within ten days.
If the demands of the employees or the trade union incorporate issues the settlement of which according to legislation falls under the jurisdiction of the central or local executive authorities or the bodies of local self-government, the National Mediation and Conciliation Service shall send its recommendations together with the relevant documents to the heads of these bodies, who must consider them within a period of seven days and advise the parties to the collective labour dispute and the National Mediation and Conciliation Service of their rulings within a period of seven days.
STRIKES
Section 17. Strikes
A strike is a temporary collective voluntary cessation of work (absence from work or non-performance of their labour duties) by workers of an enterprise, institution, organization (or structural subdivision), with the aim of settling a collective labour dispute.
A strike is called as the final means, after all other possibilities have been exhausted, of settling a collective labour dispute, in connection with the refusal of the employer or its authorised representative to meet the demands of employees or the body, trade-union or association of trade-unions authorized by them, or body authorized by it.
Section 18. Right to strike
In accordance with Section 44 of the Constitution of Ukraine,working people Shall have the right to strike to protect their economic and social interests.
The procedure for implementing the right to strike is stipulated by this Act.
A strike may be commenced if conciliation procedures have not brought about settlement of a collective labour dispute, or if an employee or its authorised representative refuses to accept the conciliation procedures, or does not fulfill the agreement reached in the course of settling the collective labour dispute.
Section 19. Decision to declare a strike
A decision on declaring a strike at an enterprise shall be taken at the proposal of a body of a trade union or other organization of employees, authorized in accordance with Section 3 of this Act to represent the interests of hired workers, by a vote of the general assembly of the employees and shall be considered adopted if a majority of the employees or two thirds of the delegates at the conference vote in its favour.
Recommendations whether to declare or not declare a branch or territorial strike are taken at the branch or territorial level at a conference, assembly, plenum or other elected body of representatives of employees and/or of trade-unions, and are sent to the appropriate work forces or trade unions.
The employees of branch enterprises or of administrative-territorial units shall take a decision independently on whether or not to declare a strike at their enterprise.
A strike shall be considered a branch or territorial strike if the number of working people at the enterprises where a strike has been declared exceeds half the total number of people working in the branch or territory in question.
No one may be compelled to participate or not to participate in a strike.
The body or person leading a strike must warn the employer or its authorised representative in writing not later than seven days, or in the event of a decision to strike at a continuous production plant not later than fifteen days, before the start of the strike.
The employer or its authorised representative must warn at the earliest possible date the suppliers and consumers, transport organizations, as well as other establishments, institutions and organizations concerned of the employees' decision to declare a strike.
The location during a strike of participating workers shall be determined by the body or person directing the strike, by agreement with the employer or its authorsied representative.
In the event of gatherings, meetings or picketing held outside the boundaries of an enterprise, the body or person leading the strike must advise the local executive authority or the body of local self-government of the event planned no later than three days in advance.
Section 20. Leading a strike
A strike at an enterprise shall be led by the body or person appointed by a general assembly of hired workers at which the decision to declare a strike was taken.
A branch or territorial strike shall be led or coordinated by the body or person appointed by a conference, assembly, plenum or other elected body of representatives of employees, of trade-unions or other workers' organizations, authorized to represent the corresponding labour collectives.
During the period of a strike the body or person leading shall act within the limits of the rights provided by this Act and inform the workers of the course of settlement of the collective labour dispute..
The authority of the body or person leading a strike shall cease if the parties sign an agreement to settle the collective labour dispute, as well as in the event of a decision being taken to postpone or cease the strike.
Section 21. Conclusion of agreement on settlement of a collective labour dispute or supervision of its fulfilment
During the period of a strike the parties to a collective labour dispute must seek ways to settle it, using all available possibilities to this end.
An agreement on the settlement of a collective labour dispute shall be signed by the leader or other authorized representative of the body heading the strike, and the employer or its authorised representative.
The parties to the collective labour dispute or the bodies authorized by them shall supervise fulfilment of the terms of this agreement.
Section 22. Deeming strikes illegal
Strikes shall be deemed illegal
a) which were declared with demands for changes to the constitutional order, to the state borders and the administrative-territorial system of Ukraine, as well as with demands that infringe on human rights;
b) which were declared without observance by employees, trade unions, associations of trade unions or bodies authorized by them of the provisions of Sections 2, 4 or 6; of paragraphs one and five of Section 12; or of paragraphs one, three and six of Section 19 of this Act.
c) which were commenced by employees, trade unions, associations of trade unions or bodies authorized by them in breach of the provisions of Section 20 or of paragraphs two and three of Section 24 of this Act.
d) which are declared and/or conducted during the implementation of conciliation procedures stipulated by this Act.
Section 23. Ruling to deem a strike illegal
An application by the employer or its authorised representative for a declaration that a strike is illegal shall be considered under court procedures.
A court must consider the case based on this application not later than within seven days, including the period of preparation of the case for the hearing.
A court's ruling to deem a strike illegal obligates the participants of the strike to take a decision to cease or postpone declaring the strike, and obligates workers to commence work not later than within the twenty four hours following the day a copy of the court's ruling is delivered to the body or person leading the strike.
Section 24. Cases in which it is forbidden to strike
Strikes shall be prohibited if the cessation of work by workers creates a threat to the lives and health of people or to the environment; or impedes the prevention of natural calamities, accidents, disasters, epidemics and epizootics or the elimination of their consequences.
Strikes by workers, with the exception of technical and service staff, of bodies of the state prosecutor's office, of the judiciary, of the Armed Forces of Ukraine, of bodies of state power, of security and of law and order are prohibited.
In the event a state of emergency is declared, the Supreme Rada of Ukraine or the President of Ukraine may prohibit strikes from being conducted for a period not exceeding one month. An extension of such a prohibition must be approved by a joint act of the Supreme Rada of Ukraine and the President of Ukraine. In the event a state of war is declared, an automatic prohibition of strikes shall apply until the moment it is repealed.
Section 25. Settlement of a collective labour dispute in circumstances where strikes are prohibited.
In cases stipulated in Section 24 of this Act, and when the recommendations of the National Mediation and Conciliation Service on settling a collective labour dispute are not taken into account, the National Mediation and Conciliation Service shall apply for settlement of the collective labour dispute to the Supreme Court of the Crimean Autonomous Republic, to the oblast court, or to the Kiev and Sebastopol municipal court as appropriate.
Section 26. Ensuring the viability of an enterprise during a strike
The employer or its authorised representative, the local executive authority or body of local self-government and the body or person leading the strike must take the measures necessary to ensure the viability of the enterprise, to preserve property, to secure observance of the legal and social order, and to prevent any threat to the lives and health of people and to the environment during the strike.
Section 27. Guarantees for workers during a strike
The participation of workers in a strike, with the exception of strikes ruled illegal by a court, shall not be considered a breach of labour discipline and cannot constitute grounds for disciplinary proceedings.
The employees or trade-union may decide to create a strike fund made up of voluntary contributions and donations.
Workers not participating in a strike but who in connection with one being conducted cannot perform their work duties shall be paid in an amount not less than that stipulated by legislation and the collective agreement made at that enterprise for idle time that is not at the fault of the worker. Keeping a record of such workers is the responsibility of the employer or its authorised representative.
Section 28. Consequences of participation by workers in a strike
Organizing or participating in a strike that has been ruled illegal by a court constitutes a breach of labour discipline.
Workers participating in a strike shall not be for time on strike.
A worker's time spent participating in a strike that was ruled illegal by a court does not count towards the overall and continuous years of service.
LIABILITY FOR VIOLATIONS OF LEGISLATION ON COLLECTIVE LABOUR DISPUTES
Section 29. Liability for violations of legislation on collective labour disputes
Persons guilty of violations of legislation on collective labour disputes shall be held liable under disciplinary procedures, administrative, or civil or criminal law in accordance with legislation.
Section 30. Liability of workers for participation in a strike ruled illegal by a court
Workers participating in a strike ruled illegal by a court shall be held liable in accordance with legislation.
Section 31. Liability for violations of labour legislation or of terms of collective labour agreements which have led to the start of a collective labour dispute
Persons guilty of commencing a collective labour dispute or who delay fulfilment of the rulings of conciliation bodies formed in accordance with this Act, as well as of executive authorities, bodies of local self-government or their officials, shall be held liable under disciplinary procedures, civil, criminal or administrative law in accordance with legislation.
Persons representing the interests of the parties who have permitted violations of the provisions of Sections 5 or 6; paragraphs one, three, four or five of Section 9; paragraph five of Section 12; paragraph one of Section 13; paragraphs three and four of Section 16; paragraphs five, eight and nine of Section 19; paragraph three of Section 23; and likewise officials who have permitted violations of the provisions of Subsection two of Section 5, Subsection four of Section 16 of this Act, shall be subject to disciplinary or administrative proceedings in accordance with legislation.
Section 32. Liability for organizing a strike ruled illegal by a court or for non-fulfilment of a ruling deeming a strike illegal
Persons who are organizers of a strike ruled illegal by a court or who do not fulfill a ruling deeming a strike illegal, as well as persons obstructing the termination of an illegal strike shall be subject to disciplinary or administrative proceedings in accordance with legislation. The procedure and guarantees stipulated in Sections 43 and 252 of the Ukraine Labour Code shall not apply to such persons.
Section 33. Liability for compelling participation in a strike or for obstructing participation in a strike
Persons compelling workers to participate in a strike or obstructing their participation in a strike by force or threat of use of force, or by other actions punishable under legislation, shall be subject to criminal proceedings according to legislation.
Section 34. Compensation for damage caused by a strike
Compensation for damage caused as a result of a strike to other enterprises, institutions, organizations or citizens shall be awarded by a court according to legislation.
Damage caused to the employer or its authorised representative by a strike deemed illegal by a court shall be compensated by the body authorized by employees to conduct the strike in the amount stipulated by the court (within the limits of the funds and property it owns).
An employer or its authorised representative who has violated the laws of Ukraine, as a result of which conditions for a strike have developed, with the strike ending in the hired workers' demands being fully or partially met, shall compensate participants in the strike for damages in the amount stipulated by a court ( within the limits of funds and property owned).