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VI. ECONOMIC, SOCIAL AND CULTURAL RIGHTS

6.1.1. RIGHT TO WORK

The right to work plays a decisive role in the system of human values that shape the economic and social status of society in general and of its individual members in particular. A person’s opportunity to earn his living by work, which he freely chooses or freely agrees to, is the essence of the right to work, which is stipulated in Article 43 of the Ukrainian Constitution for every individual. Free choice of work and free will to choose it is the exclusive right of a person to be his own master in disposing of his capabilities. This provision of Article 23 of the Universal Declaration of Human Rights is embodied in the national legislation of Ukraine.

The state has undertaken to create conditions for comprehensive exercise by citizens of their right to work, to establish guarantees of equal opportunities as to the choice of trade and the type of labor activity, to implement programs of professional training and retraining of workers according to public needs, as stipulated in paragraph 2, Article 43 of the Ukrainian Constitution. Through free choice of labor activity and occupation a person can exercise his right by setting up his own enterprise or farm, join a co-operative or joint-stock company, engage in self-employment, enter into contractual relations with an enterprise, establishment or organization. Besides, according to Article 38 of the Constitution, citizens enjoy the equal right of access to the civil service as one of existing forms of labor activity.

It is important to emphasize that according to operative legislation, unemployment is not a reason to make a person liable, since Article 43 of the Constitution prohibits the use of forced labor in Ukraine. Thereby its provision meets the requirements of Article 8 of the International Covenant on Civil and Political Rights, which guarantees the fundamental opportunity for Ukrainian citizens to choose their occupation and type of job according with their skills, in a place and at a time convenient or acceptable for them.

Each worker is eligible to such conditions of labor that meet the requirements of labor safety and hygiene and do not inflict any harm to his health. Establishment of proper labor conditions by the state should be guaranteed by the system of legal, social, economic, organizational-technical, medical-sanitary, and rehabilitation-preventive measures, which constitute labor protection. Besides, its legal status should include the right to obtain reliable information about such labor factors that are dangerous to health and life, the right for preventive measures and protection against occupational diseases and industrial injuries, the right to refuse to work in case of any threat to health and life, and the right for an independent experts’ examination and control over compliance with labor protection legislation.

The most important provisions of these requirements are enshrined in the Ukrainian Constitution. The substance of the citizens’ rights to work are further set out and elaborated in such fundamental legislation as the Code of Laws on Labor in Ukraine, the laws On Employment of the Population, On Labor Protection, On Payment for Work, On Collective Agreements and Contracts, and On the Procedure for Settling Collective Labor Disputes (Conflicts). Besides, the observance of labor rights are ensured by other rules and provisions governing labor relations of specific categories of workers, as reflected in the laws On the Status of People’s Deputies of Ukraine, On the Status of Judges, On the Civil Service, On Entrepreneurship, etc.

The Commissioner for Human Rights points out that according to statistical data that the number of labor resources in Ukraine during the period from 1995 to 1999 almost has not changed and remains at the level of 30 million. As to the employment in separate areas of the economy, there has been a trend of reduction of the number of employed, particularly in industry, construction, transportation and communication during the past few years (see Table 6.1). The citizens’ appeals, information from central and local bodies of the executive, monitoring findings, and the mass media reports present the grounds for the Commissioner to assert that the right to work is not only exercised in full scope, but, unfortunately, there are numerous facts of its gross violations.

In 1998 trade unions carried out 22,085 checks on compliance with labor legislation and identified almost 140,000 infringements concerning 1,320,707 workers. 3,400 officials were called to disciplinary account and 539 to administrative account. However, only 88 officials were dismissed according to Article 45 of the Code of Laws on Labor in Ukraine. Only 29.1% of the violations were removed upon the trade unions’ demands.

According to the data of trade-union bodies, 88,000 cases of infringements of labor legislation have been identified at almost 28,000 enterprises (95% of those examined) in 1999. The overwhelming majority of the violations concerned the procedure of payment for work as well as conclusion and fulfillment of collective agreements.

According to the data of the Ministry of Justice, during 1999 courts of all jurisdictions received 247,700 claims concerning labor relations (compared with 247,500 in 1998).

Table 6.1 Number of employed by specific industries

Just like in previous years, the lawsuits in which workers acted as claimants had the highest rate of positive decisions – 97.5%. The unsatisfactory situation in compliance with labor has made the Commissioner analyze these issues in greater details and focus in particular on the most urgent and painful problems that result in mass violations of labor rights.

Table 6.2. Registered unemployment^* (by regions)

The problem of employment and protection against unemployment. Labor is one of the basic sources of a society’s prosperity. All over the world the rate of employment is an indicator of social processes, stability and confidence in the future. According to statistics and numerous petitions by citizens to the Commissioner’s office, the problem of employment in Ukraine has become more acute. Thus, in 1998 the registered unemployment rate for the population of employable age was 3.7 %, and in 1999 it reached 4.3%. By its unemployment rate Ukraine already outstripped average European parameters as well as some countries with transitional economies. According to the data of the Ministry of Labor and Social Policy, the unemployment rate in 12 oblasts in 1999 exceeded the average for the entire country. Thus, in Ivano-Frankivsk, Ternopil, Sumy, Volyn, Rivne, Zhytomyr and Lviv oblasts it came to 6.0-7.7% (Table 6.2). Unfortunately, these negative trends in employment have not been overcome. In 2000, the number of persons who had the status of unemployed will reach 2.7 million by preliminary calculations, which is 1.3 higher than in 1999, and the number of unemployed registered with employment offices will come to 3.2 million. Larger unemployment rates are expected in the Autonomous Republic of Crimea, Dnipropetrovsk, Donetsk, Kyiv, Luhansk and Kharkiv oblasts.

As of January 1, 2000, 1,174,000 unemployed registered with the national employment offices claimed 50,700 registered vacancies. Of the total number 620,600 persons received unemployment relief. The minimal amount of such relief equals UAH 25 and the highest directly depends on average wages in a specific area of the national economy and changes constantly.

In Chernihiv, Ternopil, Sumy, Ivano-Frankivsk and Volyn oblasts 51% to 73 % such citizens are serviced by the employment centers. Actually, only a part of the unemployed register with employment offices. In 1998, there were almost 2 million unemployed registered with employment offices, which is 1.4 times more than in 1997. In 1999, there were 2,475,900 registered persons. While in 1998 the average term of unemployment reached more than 9 mon00, in 1999 it was almost 11 mon00.

In 1999 the number of unemployed, who did not work for a long time, went up (Fig. 6.1). In particular, 34.5 % did not work more than one year, and every tenth person did not work for more than two years.

Fig. 6.1. Distribution of registered unemployed by duration of unemployment in 1998-1999 (in percent to the total of registered unemployed).

The number of claimants for vacancies is growing. While in 1998 one vacant job was available for 22 persons, by the beginning of 2000 there were 24 unemployed per one job. In 18 oblasts this rate is higher than the average and comes to between 25 to 91 persons per vacancy. The highest rate is in Lviv oblast - 91 persons per vacancy, the smallest one in Sevastopol - 3. The number of those who found employment compared with the total number of persons registered with the employment centers was the smallest in Ivano-Frankivsk oblast.

The on-site examination of these issues by the Commissioner confirmed the trend of unemployment increase. For example, it is growing rapidly in Chernihiv oblast. At the time the Commissioner examined compliance with the right to work, almost 50,000 persons were unemployed, i.e. 7.2 % of the able-bodied population. In early 2000 the unemployment rate in Chernihiv oblast was 7.8 %, i.e. the highest in the nation. One vacancy in the area was claimed by 46 unemployed, and in such cities as Nizhyn and Pryluky in Bakhmach and Koriukivka raions respectively, this figure exceeded 100. The analysis of citizens’ petitions from Horodnia showed that the local unemployment rate was approaching 30%. Primarily, it proved that the most acute situation in the labor market persisted in smaller cities and settlements with a mono-industrial structure of economy, where industrial enterprises and their branches have stopped operating, where mines are being closed, and agricultural production is declining. A similar situation in the labor market is observed in the cities of Zhovti Vody, Druzhkivka, Horlivka, Rzhyshiv, Svitlovodsk, Shostka, Mykolaiv (Lviv oblast), and Novograd-Volynsky (Zhytomyr oblast).

The results of the Commissioner’s comprehensive analysis of the situation revealed that employment in some regions causes serious concern. Thus, in Luhansk oblast the number of unemployed grew 12 times during the past four years. In 1998 alone, 13,700 people lost their jobs. There is a high rate of female unemployment; women account from almost 80% of the jobless. During meetings of the Commissioner with the local officials, people expressed their concern about the current employment, particularly in the city of Stahanov (unemployment rate 29%, number of unemployed almost 17,000, and only 204 new jobs created in the past few years). A similar situation prevailed in Brianka (unemployment rate 31.5%, 8,500 unemployed, and only 171 new jobs).

The dismissed miners in coal-mining regions find it very difficult to get employed. Under the Program of Creating Jobs in Connection with Mine Closures approved by the Ministry of Coal Industry in February 1998, only 43,800 new jobs will be created, while 54,000 miners will be actually laid off. In ten mon00 of 1999, 10,200 workers were dismissed and about 2,000 of them were transferred to vacant jobs at other coal mining enterprises. During this period, 5,900 unemployed miners were registered officially, 90% of them gaining the status of unemployed. Of this number 339 (5,7 %) go jobs and 165 persons were sent for retraining. The Commissioner ‘s meetings with miners and the management of mines confirmed that since the mine closures the creation of new jobs was going on very slowly.

Out of 22 million people working in Ukraine, almost a half work part time. The number of workers who are on forced leave on the initiative of administrations and work part time practically never declines. Five million workers were on leave and working as part-timers in 1998. This trend prevailed in 1999 as well.

There is a painful problem of female employment, especially among women with young children, as well as employment of young people under 28. In Ukraine, there is practice of providing employment for minors and school graduates, however this does not solve the issue of their employment. During 1998, only 74,000 persons were employed, or 20% of the total number in this category. In 1999, there were 358.8 unemployed under the age of 28, i.e. 30.5% of their total number. In Kyiv, Odessa and Cherkassy oblasts, more than a third of young people of this age do not work and do not attend schools. The highest unemployment rate among young people is in Ternopil oblast – 36.6%.

Article 43 of the Ukrainian Constitution envisages that citizens are guaranteed from unlawful dismissal. However, the analysis of citizens’ appeals to the Commissioner gives reason to conclude that there are considerable infringements of the right to work in connection with unlawful dismissals. According to the data of public prosecutors, in Chernihiv oblast alone there were positive decisions on 174 complaints concerning reinstatement to former jobs in 1998 (44.9 % of all awarded complaints).

Specific cases of illegal dismissals can be proved be the following facts. The Commissioner met Mr.Chemodanov who complained against the biased attitude to him by A.Kostyrny, chief doctor of the territorial health-care association No.1 in the city of Kerch. The applicant, a surgeon with a work record of 30 years, was manager of the department of emergency surgery in the city for more than 15 years. Because of the chief doctor’s hostile attitude, the surgeon was dismissed. He had to go a long way to defend his rights and appealed to the Minister of Health Care and the Chairman of the Parliament of the Autonomous Republic of Crimea. Even after he was reinstated in his job by a court decision, he was immediately warned that this particular position was to be abolished and he was transferred to the reception department. Thus, a highly skilled surgeon was deprived of possibility to work according to his specialty, while the citizens were deprived of proper medical aid. The Commissioner initiated proceedings in this case of human rights violation.

After the Commissioner appealed to the Minister of Health Care, a commission of experts was established including specialists from Zaporizhia and Dnipropetrovsk oblasts and the Autonomous Republic of Crimea, which checked the facts on-site. The commission recognized the high professional skills of surgeon Chemodanov, and according to Order No.139 of the Kerch City Directorate for Health Care of December 22, 1998, he was appointed head of the purulent surgery department and thus his rights were restored.

The Commissioner received petitions from workers of medical establishments complaining against cases of unlawful dismissals in Chernihiv oblast L.Perkovska from Pryluky, L.Sahaidachna from the village of Dmytrivka, Bakhmach raion, as well as P.Romanenko, chief accountant of the Progress Collective Agricultural Enterprise, Pereiaslav-Khmelnytsky raion, Kyiv oblast. After the intervention of the Commissioner, all of them were reinstated in their jobs.

Here is what Mr. Yavtushenko, a resident the village of Petrivka, Komintern raion, Odessa oblast wrote to the Commissioner: "In June 1997 I was unlawfully dismissed. I asked you then to help me expedite the court consideration of my case. After your intervention, the case was considered. According to the decision by the Odessa central district court of May 25 1999, I was reinstated in my previous position, and now I am again an instructor of the Petrivka State Agrarian Technical School. Thank you".

All in all, the Commissioner initiated 62 initiated inquiries into unlawful dismissals and violations of the right to work in 1998-1999. Unfortunately, it was not possible to protect these rights of the citizens in all the cases.

Social protection of unemployed. Unemployment makes the issues of social protection extremely acute. Relief arrears amounted to UAH 28 million at January 1,1999 and were paid off only during the first six mon00 of 1999. However, financial support does not solve the problem. In this connection, it is necessary to concentrate on the ways to increase competitiveness of labor. In the highly developed countries substantial funds are channeled into programs of professional training and retraining of the unemployed, professional orientation courses for young people (Sweden), or provision of loans to reduce the companies' production costs related to hiring and training personnel (USA).

These examples provide the grounds for the Commissioner to assert that the operative legal guarantees of the exercise of the right to work perform their protective functions inadequately, e.g. the prohibition of groundless refusal to hire (Article 22, Code of Laws on Labor), limited list of reasons for firing workers on the initiative of a proprietor or authorized body (Article 40, Code of Laws on Labor), the obligation to offer other jobs/positions in case of dismissal because of changes in the organization of production and labor (Article 49, Code of Laws on Labor), as well as guarantees of the right to work as stipulated by Articles 51 (Code of Laws on Labor) under the current conditions of the labor market.

Efforts are now being made to convert the existing system of social protection against unemployment into a system of obligatory state social insurance in case of unemployment. One of the major steps in this direction in 2000 was the consideration and final approval by Parliament of the draft Law On Obligatory State Social Insurance in Case of Unemployment.

At the same time, the Commissioner draws attention to the fact that the problem of employment nationwide can be solved first of all by economic methods. For this purpose, it is necessary to renew and expand production, achieve its growth, invigorate the implementation of investment programs, and create new jobs primarily by supporting small and medium business. Unfortunately, it has to be admitted that the citizens do not receive unemployment relief in full. Moreover, the average level of relief amounts to UAH 40 and the maximum annual to UAH 480. Starting an independent business with such money is simply impossible. The Commissioner hopes that the Cabinet of Minister’s regulation on granting interest-free loans to the unemployed to start their own businesses will facilitate the solution of this problem.

Regional employment is the responsibility of local governments. Their activity in this area is much to be desired, as sociological surveys show. Employment centers should pursue this purpose more vigorously. But it would be vain to expect that they are capable to dealing with this problem independently.

The Commissioner is of the opinion that the issues of employment and unemployment should become one of the national priorities in social and economic policy. It should be backed up by studies of labor demand in various industries, creation of an information system of the labor market, development of cooperation with employers, creation of a network of professional training for citizens needing jobs.

The right to fair and satisfactory payment for work. Article 43 of the Ukrainian Constitution proclaims that the right to timely payment for labor is protected by law. Monthly average wages in 1999 came close to UAH 177, i.e. 15.5% more than in 1998. However, in dollar equivalent (by the average annual exchange rate) wages went down by 32% and came to $43 in 1999 as compared with $63 in 1998.

From January to December 1999, nominal wages grew from UAH 148.16 up to UAH 218.88. However, this increase in December, as compared with the previous months, was related to one-time payments at the end of the year: rewards based on annual results, long service bonuses, long service at the same enterprise, etc. By the end of 1999, the lowest wages (65-74% of the national average – UAH 218.88) were registered in Ternopil, Volyn, Vinnytsia and Chernivtsi oblasts. The highest level of wages in December last year (as well as during 1999) was registered in Kyiv - UAH 397.64.

At the same time, of the 10.7 million workers, who worked more than half of work hours in December 1999, 15.3 % were paid UAH 74, i.e. less than the legally established minimum. In agriculture, almost 41% of workers received such pay.

The most painful issue in current situation is the violation of the citizens’ right to timely payment for their work, as evidenced by numerous petitions to the Commissioner. On their basis 45 inquiries were initiated in 1998 and 102 in 1999. In particular, a collective petition by the employees of Technical College No.34 in Snihurivka (Mykolaiv oblast) stated that their pay more than six months overdue. Employees of the Kyiv Research Institute of Micro-Instruments informed the Commissioner that they had not received their pay since June 1996. For more than eight months, payment of wages was suspended at the Ternopil Oblast Hospital for war invalids and former political prisoners. The number of petitions by workers of enterprises and organizations complaining against wage arrears is constantly growing.

Wage arrears are among the most acute social economic problem. It originated back in 1992 and became more complicated ever since then. In 1998 wage arrears tended to increase trend in all regions. The problem was the most acute in Donetsk oblast – UAH 979.5 million, Luhansk oblast – UAH 596.8 million, Khmelnytsky oblast – UAH 209.4 million, and in Kyiv – UAH 149.3 million. During 1998, wage arrears in Vinnytsia, Lviv and Sumy oblasts increased by 38-46%, and in Ternopil, Kirovograd, and Volyn oblasts they amounted to more than the five months’ payroll fund.

The total amount of wage arrears remained substantial in 1999. As of June 10, 1999, they amounted to UAH 7,013.5 million. Of this amount UAH 858 million of budgetary funds were owned to workers engaged in the industries, the debt per one employed coming to almost UAH 700.

Although wage arrears declined in the second half of 1999, they still are quite high to date. As of January 2000, they came to UAH 6.399 million, including in Donetsk oblast – UAH 985 million, Luhansk oblast – UAH 578.2 million, Mykolaiv oblast – UAH 204.8 million, and in the city of Kyiv – UAH 124.3 million. Compared to 1998, they went down only by 1.8% (UAH 119 million). Wage arrears dropped from 14% to 25.7% in Lviv, Volyn, and Transcarpathia oblasts and in the cities of Kyiv and Sevastopol. At the same time, arrears increased from 4.2% to 10.3% in Vinnytsia, Donetsk, Mykolaiv, and Khmelnytsky oblasts (Table 6.3).

Table 6.3. Dynamics of wage arrears (in regions)

Almost two thirds of workers did not receive their wages on time. As to the sectors of the economy, the highest wage arrears were in the industries (36.7% - of the total arrears) and agriculture (31.9%). In 1999, arrears grew in transportation, communications, construction, trade, and public utilities. Over one-third of the debts (35.8%) as of January 10,2000 were acknowledged by the state-owned enterprises, institutions and organizations. In the city of Kyiv and seven oblasts, this indicator was even higher. Over two-thirds of budget arrears (72.8%) were registered in the education and health care systems. Wage arrears at enterprises of collective property made up 63.6%, including 27.7% in joint-stock companies.

Compared to 1999 the amount of wage arrears was 17.1%, including in industries – 16.7, agriculture – 49.6%, and construction – 22.6%. The amount of arrears equaled a payroll fund of more than two and a half months for all workers. (see Fig. 6.2).

Figure 6.2. Structure of arrears by January 10, 2000 by branches of the economy (UAH million, %)

* Social sphere includes: health care, social services, education, culture, arts, physical culture, science and scientific services

An even more striking picture was observed in the regions. While conducting a comprehensive examination on how human rights and freedoms were complied with in Chernihiv oblast, the Commissioner learned that in this area wage arrears continued to go up and amounted to UAH 184.4 million in March 1999, or a payroll funds of 3.6 months. As of March 1, 1999, there were 24,442 cases of failure to pay wages. And this happened at a time when monthly average nominal pay in Chernihiv oblast per one worker was 27% less than the average for Ukraine and amounted to UAH 122.09, i.e. the lowest indicator.

Some categories of employees of state budget-funded institutions in the oblast did not receive their salary from six to ten months, the arrears having piled up to UAH 54.6 million (or 30 % of the total amount of debts).

 SECOND PART

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