Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Poland (Ratification: 1957)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC), dated 4 August 2011, on the application of the Convention and the Government’s reply thereon. The Committee also notes the comments of the ITUC, dated 31 July 2012, referring to issues already highlighted by the Committee, as well as to allegations linked to the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Finally, the Committee notes the comments from the National Commission of the Independent and Self-Governing Trade Union (NSZZ) “Solidarnosc”, dated 30 August 2012, referring to the application of the Convention and in particular to Case No. 2888 examined by the Committee on Freedom of Association.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join trade unions of their own choosing. In its previous comments, the Committee took note of the information provided by the Government and of the comments by the ITUC alleging that workers in state-owned enterprises in the health sector, as well as in the water and forestry industries, had their employment contracts terminated and replaced by civil law contracts depriving them of the right to belong to a trade union. The Committee also noted that, according to the Government, the right to form and join trade unions was not granted to those persons who had entered into an employment relationship on the basis of civil law contract, since they could not be considered employees under section 2 of the Labour Code. The Committee recalled that under Article 2 of the Convention, employers and workers, including workers without an employment contract, have the right to establish and join organizations of their own choosing, without distinction whatsoever, with the sole exception of members of the armed forces and the police. It requested the Government to provide information on any measures taken or envisaged to amend its legislation so as to bring it into conformity with the Convention. The Committee notes that the Committee on Freedom of Association, when examining a complaint submitted by the National Commission of the NSZZ “Solidarnosc”, also requested the Government to take the necessary measures to ensure that all workers, without distinction whatsoever, including self-employed workers and those employed under civil law contracts, enjoyed the right to establish and join organizations of their own choosing within the meaning of the Convention (see 363rd report of the Committee, Case No. 2888). The Committee notes that the Government indicates in its report that: (1) the Ministry of Labour and Social Policy has prepared a draft law amending the Act on trade unions, which provides for the extension of the right to form trade unions to outworkers (according to the Government, these workers can only join trade unions); (2) the Tripartite Committee for Socio-economic Affairs decided in June 2012 to start an in-depth discussion on the problem of people working on the basis of civil law contracts, including their right to organize in trade unions; (3) this issue will be addressed at the forum of problem groups of the Tripartite Committee for Socio-economic Dialogue; and (4) there will also be a wider discussion within the framework of the Tripartite Commission on changes in national legislation on the right to organize and it will examine, inter alia, the possibility of extending the right to organize to self-employed people. The Committee welcomes the initiatives on potential improvements to the legislation and hopes that any legislative reform will take account of the abovementioned principles. The Committee requests the Government to provide information in is next report on any progress made in this respect.

Article 3. Right of organizations to elect their representatives in full freedom. The Committee recalls that it noted in its previous observation the entry into force of the Act on the civil service, 2008, and that according to its section 78(6), members of the civil service occupying senior positions cannot exercise trade union functions. The Committee recalls that while legislation may restrict the right of civil servants in senior positions to join unions of lower grade employees, the persons concerned should have the right to form their own organizations to defend their interests and the right to elect representatives in full freedom; all workers in the public service should also have the right to perform trade union functions in their respective trade union organizations. The Committee notes that, according to the Government, all the necessary steps to eliminate the incompatibility with Article 3 of the Convention will be taken at the next revision of the Act in question. The Committee hopes that the revision of section 78(6) of the Act on the civil service will be made in the near future and that it will take into account the principle mentioned above.

Right of organizations to organize their activities in full freedom and to formulate their programmes. The Committee recalls that in its previous comments, it requested the Government to specify categories of employees whose right to strike was restricted and to provide information on the practical application of the right to strike by such employees. The Committee notes that, according to the Government, section 78(3) of the Act on the civil service forbids public servants to participate in a strike or industrial action interfering with the normal functioning of the office. In this respect, the Committee recalls that public servants who do not exercise authority on behalf of the State must be able to exercise the right to strike. The Committee trusts that in the context of the revision of the Act on the civil service, to which the Government refers in the previous paragraph, the necessary measures will be taken to acknowledge the abovementioned principle.