98 is to guarantee workers an adequate protection against any discriminatory actions
aimed at restricting freedom of association in the workplace. In accordance with para.
2, Art. 1 of the Convention, such protection applies in the respect of acts calculated to:
a) subjecting employee’s acceptance for employment or letting him/her keep their work
to such employee’s avoiding joining a trade union or to relinquishing the trade union
membership; b) dismissal of or prejudicing a worker in any other way by reason of
union membership or because of participation in union’s activities outside working
hours or, with the consent of the employer, within working hours.
According to Art. 4 of the ILO Convention on the Right to Organise and
Collective Bargaining (1949) № 98 it is separately provided that, where necessary,
measures appropriate to national conditions shall be taken to encourage and promote
the full development and utilisation of machinery for voluntary negotiation between
employers or employers' organisations and workers' organisations, with a view to
regulation of terms and conditions of employment by means of collective agreements.
The main elements of collective bargaining are precisely the free and voluntary nature
of their conduct, the principle of good faith and selection of the level of conducting
them. The ILO Convention on the promotion of collective bargaining (1981) №154,
ratified by Ukraine in 1994, states that it applies to all industries, defines the term
"collective bargaining" as well as special provisions on assisting collective bargaining.
In turn, Recommendation №163 of the same name supplements the Convention №154
on the subjects of collective bargaining and the terms and conditions of their conduct.
One of the gaps in the current legislation is presented by the fact that the term
"collective bargaining" is absent both in the Law of Ukraine on Collective Agreements
as well as in Chapter II of the Labor Code of Ukraine, despite the definition of its main
features in international labour standards. Thus, in accordance with Art. 2 of
Convention № 154 the term "collective bargaining" means all negotiations conducted
between the employer, group of employers or one or more employers' organisations,
on the one side, and one or more organisations of workers, on the other side, in order
to: a) determine the terms and conditions of work and employment ; and (or) b) regulate
relations between employers and workers; and (or) c) regulate relations between
employers or their organisations and workers’ organisation or organisations.
Another principle, which found its consolidation in the ILO Declaration on
Fundamental Principles and Rights at Work and its Follow-up (1998), is the
elimination of all forms of forced or compulsory labour. Thus, the freedom of work
recognised as a central principle of modern labour law [10, p. 124] is guaranteed by
the prohibition of forced labour, however, current labour legislation omits this concept.
In this regard the ILO Convention on Forced or Compulsory Labor (1930) № 29, which
requires the ILO members-states to suppress the use of forced or compulsory labour in
all its forms with the shortest possible period, deserves special attention. Art. 2 of the
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