Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

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

The Committee notes the observations of the National Commission of the Independent and Self-Governing Trade Union (NSZZ) “Solidarność” received on 9 August 2018. The NSZZ alleges that the Act on Universal Defence prohibits soldiers of the territorial defence forces, who are at the same time private sector employees, to establish and join trade unions in the private sector. The Committee notes the Government’s indication that a draft legislation to amend the Act so as to grant soldiers of the territorial defence serving on a rotational basis association rights, unless the trade union activity is related to the performance of their military service, is currently being prepared for presentation to the Standing Committee of the Council of Ministers. The Committee requests the Government to provide information on the developments in this respect. The Committee further notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2018 alleging violations of the principle of genuine tripartite consultation at the national level, and the Government’s detailed response thereon. The Committee also notes the observations of the All-Poland Alliance of Trade Unions (OPZZ) received on 27 August 2018 which relate to the legislatives issues raised by the Committee below.

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 trusted that the draft Act on Trade Unions would be adopted in the near future so as to guarantee the right to all workers, without distinction whatsoever, including workers without an employment contract, to establish and join organizations of their own choosing, with the sole exception of members of the armed forces and the police. The Committee notes that the draft Act on Trade Unions was signed on 25 July 2018 and should enter into force on 1 January 2019. The Committee notes with satisfaction that under the amended Act, the right to establish and join trade unions will be extended to “persons working for money”, which includes not only employees but also any person providing work for remuneration irrespective of the legal basis of contractual relationship. The Government indicates that the new definition of “a person working for money” means that membership in trade unions will now be open to persons hired under a mandate, contract for provisions of service, contract to perform specific tasks, as well as self-employed (i.e. sole traders and persons running a one-person business, other than in agriculture). Volunteers, interns and other persons who work without receiving remuneration will also be granted the right to join trade unions on the terms and conditions specified in the trade unions’ by-laws.

Article 3. Right of organizations to elect their representatives in full freedom. The Committee had previously noted that according to section 78(6) of the Act on Civil Service, members of the civil service occupying senior positions cannot exercise trade union functions, and requested the Government to amend this provision so as to ensure that the right to elect representatives in full freedom, as well as the right to perform trade union functions is granted to all workers in the public service in their respective trade union organizations. The Committee notes that the Government reiterates its intention to remove this discrepancy on the occasion of the upcoming revision of the Act. The Committee firmly hopes that section 78(6) of the Act on Civil Service will be amended in consultation with the social partners without further delay. It requests the Government to provide a copy of the amended Act.

Right of organizations to organize their activities in full freedom and to formulate their programmes. The Committee had previously noted that section 78(3) of the Act on Civil Service forbids civil servants to participate in strikes or actions of protest interfering with the normal functioning of the office. The Committee had trusted that the Government would consider establishing a procedure for determining exactly which public servants enumerated in section 19(3) of the Collective Labour Disputes Act and in section 2 of the Act on the Civil Service were exercising authority in the name of the State and for whom the right to strike could therefore be restricted. In this regard, the Committee suggested that a tripartite body could be established with the responsibility of identifying the relevant public servants, and that any disagreement could be settled by an independent body. The Committee notes the recommendation to the same effect made by the Committee on Freedom of Association in Case No. 3111 (see Report No. 378, June 2016, paragraphs 647–718). The Committee welcomes the Government’s indication that a draft law dealing with the right of public employees to strike was submitted to the Council of Ministers. It requests the Government to provide information on all progress made in amending the Act on Civil Service so as to ensure the right to strike of civil servants, with the only possible exception of public servants exercising authority in the name of the State.

The Committee is raising other matters in a request addressed directly to the Government.