Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Poland (Ratification: 1957)

Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

The Government communicated the following information: In the course of the Round Table Conference there was discussion of the problem of ensuring the possibility of reinstalling to employment persons who lost their jobs due to their trade union activity carried on after 13 December 1981 (in contradiction of the then-existing law) and of reinstating continuity of their employment, interrupted because of dismissal. Basic provisions of the draft Act on the Rights of Persons to Re-enter an Employment Relationship were agreed upon.

On 24 May 1989 a respective Act was adopted by the Seym. It provides that the above-mentioned person may apply to establishments which had dismissed them for re-employment in accordance with their skills and professional experience. An establishment should employ an applicant and if it refuses to do so, persons concerned may apply to the Special Social Conciliatory Commission, composed of a representative of the administration, a representative of a trade union - indicated by an applicant - and an impartial, competent chairman. Appeals may be lodged with the Commission also by teachers of schools and academies of all levels and research workers of the Polish Academy of Sciences.

All workers whose employment was terminated after 13 December 1981 due to their trade union activity carried on in contradiction with the then-existing law will be ensured continuity of employment regardless of whether they return to the previous enterprise or not.

The Government wishes also to note that on 29 May 1989 the Seym adopted an amnesty act concerning certain criminal acts and misdemeanours. It covers the cases of infringement of law for political reasons or in connection with strikes or acts of protests, committed after 31 August 1980.

Detailed information on the above-mentioned changes in Polish legislation, and - in particular - on changes in the Trade Union Act shall be submitted to the ILO in the due course.

In addition, see the discussion under Convention No. 87, as follows:

The Government has communicated the following information:

In the report submitted to the International Labour Office in February 1989 the Government informed about the opening of the Round Table Conference aiming, inter alia, at reaching agreement on a new pluralistic model of trade unions. The purpose of this written communication is to present up-to-date information on the results of the Round Table (ended on 5 April 1939) and on subsequent changes in legislation during the period April-May 1939.

The participants of the Round Table agreed, inter alia, that in order to ensure the workers the right to establish and join the trade unions of their own choosing and, particularly, to enable legal activity of the Independent Self-governing Trade Union "Solidarity" and of other trade union movements. the Trade Unions Act of 8 October 1982 should be amended without delay and that respective amendments would:

- ensure that free establishment and registration by workers of the trade unions, including the registration of the nation-wide trade unions, as well as free creation of the trade union organisational structures on branch, territorial, occupational or other principles, in accordance with the ILO Conventions, particularly Conventions No. 87 and 98,

- determine principles of co-operation of trade unions in enterprises in matters connected with collective and individual representation of rights and interests of workers in their relations with the manager of the enterprise and organs of the workers' self-management.

- ensure equality of all the trade unions, including in particular, equal rights of trade unions which are representative for workers of the majority of enterprises.

On 7 April 1989 the Parliament (Seym) adopted the Act amending the Trade Union Act, 1982. Amendments took into account all above-mentioned agreed points.

It should also be noted that immediately before their adoption, the Government consulted the ILO concerning the main provisions of the Amending Act.

Participants of the Round Table recognised also the necessity of carrying out further amendments of the Trade Union Act 1982, particularly of its articles concerning collective disputes, the right to strike and the categories of employees not allowed to form and join trade unions.

On 7 April 1989 the Seym also adopted the new Act on trade unions of individual farmers, implementing the principles of the trade union pluralism in agriculture. In accordance with this Act, individual farmers running farms and their family members working with them on the farm are entitled to establish and join trade unions of individual farmers for the protection of their rights and professional interests. Trade unions of individual farmers are self-governing and, particularly, they have the right to determine the aims and programmes of their activity, adopt statutes and other acts concerning their activity as determine their internal organisational structures. They are independent and are not subject to supervision and control of the state administrative authorities. These authorities should refrain from any activity leading to the limitation of the independence of the trade unions in their activity carried out in accordance with law.

Trade unions functioning on the basis of this Act have the rights and obligations accorded by the law to socio-occupational organisations of farmers in the field of representation and defence of rights and interests of farmers.

The Act recognises the principle of equal treatment by the State, and the self-management organs of trade unions of farmers and socio-occupational farmers' organisations, in the field of their activity.

As a result of the above-mentioned changes in legislation, the following trade unions have been registered by Polish courts: Independent Self-Governing Trade Union "Solidarity", on 17 April 1989; Independent Self-Governing Trade Union of Individual Farmers "Solidarity", on 20 April 1989. These trade unions are nation-wide organisations.

The Government wishes also to inform that on 7 April 1989, the Seym adopted one more Act - the Act on Associations - which abrogated the Decree of the President of the Polish Republic of 1932. The new Act creates conditions for full implementation of the freedom of association guaranteed by the Constitution. It ensures to all citizens, whatever their religion or opinion, equal rights of active participation in the public life of the country and of expressing different views and realising their interests. An association is a voluntary, self-governing and durable organisation of non-lucrative character. It independently determines its aims, programmes of activity and organisational structures as well as adopts internal acts concerning its activity. It is prohibited to organise associations based on the principle of absolute obedience of members to the authorities of the association. The Act provides that no one may be forced to join the association or leave it. No one may be punished due to his membership of the association or for staying outside it. The right of association may be limited only in cases provided for by the law, justified by national safety reasons, public order, health protection, public morality or reasons of protection of rights and freedoms of other persons.

In addition, a Government representative referred to the written information which had been submitted to the ILO. This information related to recent changes directly affecting the implementation of Conventions Nos. 11, 87 and 98.

As far as Convention No. 87 was concerned, the Act of 7 April 1989 is of primary importance. It abolishes former restrictions on the establishment and functioning of trade unions - especially the stipulation that there could be only one trade union at each enterprise. It ensures freedom in the choice of principles on which the structure of trade unions should be built, including in particular the right to establish unions on a territorial basis. It ensures the equality of all trade unions. It sets out the principles of co-operation between trade unions in enterprises. Also on 7 April 1989 legislation was adopted to give effect to the principle of trade union pluralism in agriculture. Finally, an Act of 24 May 1989 makes provision for the re-employment of persons who had been dismissed for trade union activities after 13 December 1981. This last provision has a direct relation with the need for protection against acts of anti-union discrimination which is incorporated in Convention No. 98.

The speaker then referred to the Act on Associations which was also adopted on 7 April 1989 and which created conditions for the full implementation of the principle of freedom of association guaranteed by the Constitution of Poland. He stressed also the importance of the Act on Oblivion of 29 May 1989 which was not just a simple amnesty provision, but rather it entirely obliterates all convictions imposed in respect of strikes of other protests committed after 31 August 1980.

Both of these latter measures were consistent with the spirit of recent political and legal changes in Poland. They were helping to create more appropriate conditions for the implementation of the Conventions, and in a sense could be regarded as guarantees of their full implementation.

He noted that the independent Self-Governing Trade Union "Solidarnosc" had been registered on 17 April 1989, and that a parallel organisation for individual farmers had been registered on 20 April 1989. These bodies had been registered in addition to existing unions, most of which were affiliated to the All-Polish Alliance of Trade Unions. All of the most representative unions in the country were part of his country's delegation to the present International Labour Conference.

Referring to employers' organisations, he noted that in January 1989 the Association of Employers in Poland had been established. This organisation combined employers from the state, cooperative and private sectors.

Turning to the further intentions of the Government, it had been agreed at the Round Table Conference that further changes to the Trade Union Act, 1982, would be introduced at a later stage. These changes would deal with collective disputes and strikes - and in particular would simplify procedures associated therewith. It would also deal with those groups of employees who were not permitted to form or join trade unions. This category included prison officers - a matter which had been raised on a number of occasions by the Committee of Experts, and which had been discussed in this present Committee. Implementation of these changes would complete the second stage of the agreed revision of the Trade Union Act.

He also announced that his Government had decided to establish a tripartite committee for co-operation with the ILO. A preparatory meeting had been held on 1 June 1989, and it was hoped to establish the committee in September, or in the early autumn. The Government also intended to examine the possibility of ratifying Convention No. 144 on tripartite consultation. This was further evidence of the Government's positive attitude to the ILO, and consultations within the Committee would have a direct bearing on the attitude of the Government to the practical implementation of ratified Conventions and to Conventions which had not yet been ratified by Poland.

He stressed the importance which the Government had always attached to dialogue within the present Committee. He recalled that two years ago the Government had stated that the question of union pluralism remained open, and that the then-current restrictions were of a transitory nature. It had said that future developments in this regard depended upon the general situation in Poland, and it had appealed for understanding and patience. In 1988, the Government had been able to indicate some measures undertaken to change the legislation, and in February 1989 it had announced the holding of a Round Table Conference aimed at, inter alia, the creation of trade union pluralism. The information presented to the present Committee showed how serious the Government's intention had been on previous occasions.

The Workers' members noted that a great deal had happened in Poland in recent times. They found the progress which had been made in this case refreshing, comforting, encouraging and very different from the criticisms and difficulties which were found in most cases.

They were aware that the application of the Convention had been the subject of comments by the present Committee, by the Committee of Experts and by a Commission of Inquiry. It was clear from reading the report of the Committee of Experts, and from what the Government had told the present Committee, that there had been real progress in this case - even though not everything had yet been put right. One sign of progress was the establishment of a national council charged with the reform of all labour legislation in Poland - a body which was actively co-operating with the ILO in its work. A further sign of progress was the setting up of a group of experts within the Ministry of Labour to deal with human rights, and to examine conformity between legislative provisions and human rights Conventions.

The changes which had been made were most welcome, and were most encouraging. However, much remained to be done, and it was important that the Government did not cease in its endeavours to bring law and practice into conformity with the Conventions.

Finally, they asked whether the Government could indicate if the amendments relating to collective conflicts and the right to strike would be introduced in the near future.

The Worker member of Poland expressed his sincere appreciation of the work of the present Committee in helping to convince the Government to reopen dialogue with the workers represented in "Solidarnosc".

He found the statement of the Government representative to be a reflection of the spirit of dialogue which had led to the Round Table Conference. The co-operative attitude of the Government was most welcome, and Solidarnosc wanted to promote continuing dialogue through the tripartite machinery. However, there was a problem in that one partner was missing. There was a need to counterbalance the Government as an indirect employer with representatives of direct employers. This was not yet possible.

The consensus at the Round Table Conference had simply been a starting-point for further negotiations which were necessary to deal with a number of urgent issues. In that context, the speaker asked the Government representative to comment on five points: (1) the need for fundamental reform of the Labour Code; (2) the strengthening of collective bargaining; (3) the repeal of legislative measures which provided for discrimination in employment and for forced labour in certain circumstances; (4) the extension of trade union rights to areas which had been categorised as "essential" after the declaration of martial law; and (5) the introduction through the country's Constitution of the direct applicability of ILO Conventions. Many of these were sufficiently clear as to permit direct application through the judicial process, rather than just by means of legislative reference.

These five points involved the repeal of remnants of martial law which had permeated the existing legislation, and also provided a framework for developing a new labour law system based upon respect for ILO standards.

Referring to the principles of freedom of association, the speaker fully concurred with the conclusion of the Committee of Experts at paragraph 148 of their 1983 General Survey on Freedom of Association and collective bargaining to the effect that "although the Convention clearly does not aim to make trade union pluralism compulsory, pluralism must be possible in every case". By the same token, he could not accept the proposition that a union monopoly encouraged employee integration and more effectively represented the interests of the workers. More and more States were abandoning this outmoded approach. It was surprising, therefore, to find that a minority of the Committee of Experts still sought to justify the retention of a trade union monopoly by reference to euphemisms such as "socio-economic and political circumstances" or "social realities".

Fundamental universal standards of human rights are inherent and inalienable values irrespective of socio-political system or levels of economic development. The speaker agreed with the Committee of Experts that trade union monopoly imposed directly or indirectly by the law ran counter to the standards expressly laid down by Convention No. 87.

Solidarnosc supported bona fide, new, independent trade unions which were established in Poland, or anywhere else, regardless of the socio-political circumstances of the country concerned.

The Employers' members noted that events had moved rapidly in Poland. In relation to Conventions Nos. 87 and 98, there had been positive and substantial developments both as concerned trade union pluralism and anti-union discrimination. The changes which had taken place in relation to these matters were to be welcomed.

They recalled that the Government had an on-going obligation to supply copies of new laws to the Committee of Experts, and to submit timely reports. They also emphasised that a great deal remained to be done. In this context, the Committee of Experts had provided a number of detailed interpretations relating to the Convention, and the Government should not be surprised if it had to appear before the present Committee again at some time in the future. This was said not as a threat, but to help the Government to realise that its task had only just begun.

The Employers' members noted with concern that there were continuing problems associated with the lack of private enterprise in Poland. They urged the Government to adopt programmes to develop free enterprise in their country. They reiterated that there had been giant steps in the right direction, and hoped that the positive attitude demonstrated by the Government would be applied to remaining problems in relation to the present Convention.

The Worker member of France recalled that his organisation, through its member on the Governing Body, had been instrumental in initiating the complaint against Poland which had led to the establishment of the Commission of Inquiry. He had heard of the substantial progress which had been made through the Round Table Conference. This was most gratifying, but it was now necessary to follow through with practical implementation. He hoped that other countries with similar political regimes would witness similar progress in the near future. For such progress to be meaningful, dialogue had to be carried on in good faith, and on a tripartite basis. When the Government indicated that it was considering the ratification of Convention No. 144, he took this as a positive gesture, indicating that the Government meant to press ahead with its reforms. The speaker hoped that they would also look carefully at the implementation of the Conventions which they had already ratified. He hoped that the Committee would, next year, be able to note further progress both in Poland and elsewhere.

The Government member of the United States noted that the information presented by the Government did not constitute a 100 per cent resolution of all problems of law and practice. It would not have been realistic to expect that at this stage. But there nevertheless appeared to be a genuine evolution towards full respect for the principles of freedom of association and the right to organise. She hoped that in the report of the present Committee there would be an expression of satisfaction at the progress which has been made, and an encouragement to further progress in the future.

The Worker member of Liberia expressed satisfaction at the meeting of minds of all concerned in Poland. African workers supported the positive trends, and hoped for even further progress in the future.

The Government representative expressed his pleasure at the fact that his country was being treated neither as especially good nor as especially bad, but as normal.

It was difficult to be definite about when the second phase of the revision of the 1982 Act would be completed - especially in view of recent electoral developments. However, the changes had been agreed upon in principle at the Round Table Conference, so it seemed reasonable to assume that they would be implemented whatever shape the new Government might take.

Turning to the concerns expressed by the Employers' members about the private sector, the Government representative pointed out that this sector was still relatively small in Poland. It accounted for about 35 per cent of the active population (including independent farmers). He acknowledged that there was a problem in relation to employers' organisations. However, the establishment of an organisation in January 1989 had been a positive development, and it was now necessary to see how things worked out in practice.

The speaker considered that the issues raised by the Workers' member of Poland were directed to the Government itself, rather than to the Government representative in the present Committee. They would be dealt with in the proper way, and if necessary, the appropriate legislation would be prepared. Some of this work was already under way. This included the possible abrogation of those provisions of the Act of 1982 which dealt with the punishment of persons convicted of evading work.

The Committee took note of the information supplied by the Government representative and of the discussion that followed. The Committee noted with interest the evolution of the trade union situation and of collective bargaining, in particular as regards the right of workers to set up the organisations of their choice. The Committee welcomed the fact that the Round Table Conference which had taken place had recognised the need for a modification of the legislation regarding certain points which were raised by the Committee of Experts. The Committee noted with satisfaction that the Government had decided to set up a tripartite committee with responsibility for the examination of social legislation, taking into account the Conventions and Recommendations of the International Labour Organisation.

The Committee expressed the hope that discussion would be continued between the Government and employers' and workers' organisations with a view to continuing to adapt legislation and practice and hoped that all of the texts would be sent to the ILO so that the Committee of Experts would be in a position to examine them.

Individual Case (CAS) - Discussion: 1988, Publication: 75th ILC session (1988)

The Government has communicated the following information:

As the ILO Committee of Experts suggested an analysis of the sufficiency of the legal machinery existing in Polish legislation, i.e. in civil and penal law - which protect workers against acts of anti-union discrimination, the Government presents the legal situation in this field.

1. Reinforcement of the national legislation and machinery of protection against the acts of anti-union discrimination

Polish legislation provides for the following machinery of protection of the workers against the acts of anti-union discrimination:

- in the Polish labour law system there exists workers' protection against "unjustified" termination with notice of contracts of employment by establishments as well as an established interpretation of the term "unjustified termination" which ensures that the termination of a contract of employment caused by antiunion discrimination would be considered in legal proceedings as unjustified, and the worker may claim the reinstatement of his previous conditions (section 45 of the Labour Code);

- section 53 of the Act of 8 October 1982 (Trade Union Act) provides that "whoever, in connection with an occupied post or fulfilled function, does not fill his obligation or in any other way infringes the provisions of the Act, shall be liable to a fine..." This regulation may be also applied to infringement of section 39 of the Trade Union Act which protects the employment relationship of elected trade union officials for a period of one year after the expiration of their term and section 4 providing that "no one can bear negative consequences due to his membership of a trade union, being elected to a function in this trade union or staying outside the union. In Particular it cannot be a condition for concluding an employment contract, staying in employment or promotion, unless the provisions of the Act prohibit membership (in a trade union) of workers employed in a given enterprise or at a given post";

- section 190 of the Penal Code provides that: "Whoever, when responsible in an enterprise for matters connected with employment, malevolently or persistently infringes workers' rights resulting from the labour relationship or social insurance provisions and thus creates the danger of serious prejudice to a worker is liable to imprisonment of up to three years";

- section 415 and following of the Civil Code introducing the universal principle of responsibility: "Whoever through his fault harms another person shall redress it", may be also a ground for action in the civil procedure for redressing the damage caused by acts of anti-union discrimination against trade union leaders;

- section 281 of the Labour Code provides that "Any person acting on behalf of an enterprise who terminates an employment relationship with a worker without notice, and in doing so contravenes the provision of labour law shall be liable to a fine...".

In the light of the above it should be stated that the current legal system, also in the form of civil and penal sanctions, guarantees the prevention of anti-union discrimination of workers and their protection.

2. Registration of collective agreements (Article 4 of the Convention)

Complementing the information submitted to the 73rd Session of the International Labour Conference and the report of the Government of the Polish People's Republic (October 1987), the Government explains that, in the light of the Act of 24 November 1986, amending the Labour Code, the Minister of Labour and Social Policy, as the organ registering a collective agreement, is not an organ of the last instance in the field of appraisal of inconsistency of the contents of an agreement with the socioeconomic policy of the State determined by the Seym in the national socio-economic plan. In accordance with section 242(4) of the Labour Code, if the Minister of Labour and Social Policy discovers that a collective agreement submitted for registration is not in conformity with this policy, each of the parties to the agreement may ask for a settlement of the dispute in this regard by the Committee, half on which is made up of candidates from the Presidium of the Government and half from the competent organ of the national inter-trade union organisation. The Committee settles the dispute expeditiously within a period not exceeding three months and its decision is binding on the Minister of Labour and Social Policy.

Examination of conformity of collective agreements with the national socio-economic plan is based on the generally formulated principles of central policy of wages negotiated and agreed between the Government and the trade unions and then adopted by the Parliament (Seym) within a national socio-economic plan; consideration is taken of the general state, the necessary directions of development and the needs of the economy, as well as ensuring the motivation function of incomes from work leading to stimulation of the growth of production and services through the increase of labour productivity and closer connection of pay with effects and results of enterprises' work. In addition, unjustified pay disproportions are eliminated through the application of objective methods of job evaluation.

The principles of implementation of the central wage policy in collective agreements are determined in Part III, Chapter 2, paragraph 4, of the parliamentary resolution of 18 December 1986 on the national socio-economic plan for the years 1986-90 (Dziennik Ustaw No. 45 of 1986, text 224). Chapter 2, paragraph 4, provides, inter alia, that collective agreements are an essential instrument for the implementation of the objectives of the wage policy. They should allow for the creation of proper relations between pay in different occupations and work posts in different branches and contribute to a closer connection of the level of pay with the quality and quantity of work and the conditions in which it is performed. Thus, before they conclude a collective agreement, competent ministers (heads of central offices), central co-operative organisations, central social organisations (nation-wide) as well as associations of non-socialised enterprises, should analyse in detail the financial effects of this agreement.

To sum up, in the light of legal provisions in force, the Minister of Labour and Social Policy has no final power in contesting the conformity of the agreement with the socio-economic policy of the State, and the arbitration provided for in the case of a dispute concerning registration of an agreement guarantees the protection of the workers' interests through the trade union's participation in the arbitration.

The Ministry of Labour and Social Policy wishes to add that the Group of Experts mentioned under Convention No. 87 will also consider the methods of implementation of Convention No. 98.

See also General Observations.

In addition, see Convention No. 87, as follows:

The Government has communicated the following information: Measures will be taken to define the position of the Government concerning observations by the International Confederation of Free Trade Unions and the World Confederation of Labour relative to the application of the present Convention in Polish legislation.

Trade union unity or pluralism

The legal situation has not changed since the 73rd Session of the Conference. It is characterised by two elements:

- trade union pluralism assumed by the provisions of the Trade Union Act (section 37(1): "In an enterprise in which more than one trade union organisation acts, each of them..."); and

- temporary suspension of the above legal construction (section 60(3): "In the period, the end of which will be determined by the Council of State, only one trade union organisation shall act in an enterprise.").

Thus, in the transitory period which will expire when the Council of State so decides - the principle of trade union unity is in force in enterprises.

The problem of trade union unity or pluralism at the enterprise level which, in the light of Polish legislation, remains open in the longer perspective is connected with the general social, political and economic situation of Poland and directions of its future evolution. It also is one of the elements of the broad sphere of political pluralism in the public life of the country. Future solutions in this regard will be undoubtedly dependent upon more general ones in the field of policy which are at present being prepared in Poland and which cover the considerable broadening of the so called "dialogue with the political opposition", concluding of the "anti-crisis pact", etc. At the beginning of June 1988, in connection with the initial stage of these political activities it is difficult to forecast their final direction and scope; it is only known that they are being carried out in an unprecedented scale for Poland and with the bold will of achieving completely new qualities in the political system of Poland. In this situation Polish authorities ask the International Labour Organisation for understanding and patience in waiting for the further political evolution in this regard, concerning also the problem of trade union pluralism.

In the years 1987 and 1988, the Polish economy entered a second stage of broad economic reform. This period is not free from difficulties and tensions, which are to a considerable degree understandable in the situation of inflation and lack of balance in the internal economic market, as was reflected in the results of the nationwide referendum in November 1987, and was the basis of the strikes in May 1988.

Together with the economic reform and for its support the Government started the broad activities based on a sound scientific basis aimed at the general reform of the labour law, which will also cover the trade union law. To this end, the National Committee for the Labour Law Reform has been appointed, composed of representatives of governmental, scientific and trade union organisations. The Committee has up to 1990 to elaborate the draft of the new labour law, based on comparative legal knowledge and ILO standards. With a view to examining the ways of full adjustment of Polish labour law to the ratified ILO Conventions in the field of human rights, in particular those concerning the right to organise. In May 1988 a group of experts was established at the Ministry of Labour and Social Policy for examining the conformity of Polish law with the ratified ILO Conventions in the field of human rights' protection. The group of experts is composed of eminent scientists and experts in the field of labour law and international law. The results of its work will be submitted to the Legislative Council by the President of the Council of Ministers together with its proposals. The work of the group will take into account the observations of the Committee of Experts, as well as the remarks of the International Confederation of Free Trade Unions and the World Confederation of Labour in the context of application of the present Convention.

As regards the observation of the Committee of Experts concerning an appeal which was submitted to the Constitutional Tribune in respect of section 60(3) of the Trade Union Act, the Government repeats that on 28 November 1986 a group of seven persons appealed to the President of the Constitutional Tribunal to make use of his power to initiate proceedings for examining the conformity of section 60(3), sentence 2, of the Act of 8 October 1982 with section 84(1) and (2) of the Polish Constitution. After examining the case, the Tribunal informed the appellants that their appeal had no basis under the current legal provisions and thus the proceedings would not be instituted.

In the present period of socio-economic difficulties, according to the prevailing opinion which finds its reflection in public opinion polls, the activity of only one trade union organisation in an enterprise favours the integration of staff and the fulfilment by the trade unions of their proper function, i.e. that of defender and representative of the workers' occupational interests. It should be emphasised that the existing laws in Poland create the premises for a broad democracy at the enterprise level. In addition to the trade unions, there exist self-managing bodies elected by the staff which enjoy broad rights permitting them to influence the enterprise management and to control the activities of the manager.

Trade union rights of civil servants

The Act of 16 September 1982 on civil servants employed by the State provides in section 40 that they have the right to organise in trade unions. Thus, the Act does not impose a trade union monopoly, but admits the possibility of joining different trade unions that would cover civil servants.

Section 40 of the Act of 16 September 1982 on civil servants employed by the State provides that they have the right to organise in trade unions with the following exceptions:

- high-level employees whose functions are normally considered as policy-making or managerial;

- employees whose duties are of a highly confidential nature. (These exceptions are in accordance with the provisions of Convention No. 151 concerning protection of the right to organise and procedures for determining conditions of employment in the public service of 1978.)

The above-mentioned civil servants, as well as other non-unionised public employees are entitled to form employees' councils. The task of these councils is to protect and represent the occupational and social interests of public employees who formed them vis-à-vis the heads of the respective administrations. The employees' councils act on the basis of the Act on civil servants employed by the State and statutes which they adopt themselves (section 41 of the Act).

Heads of administrations and their higher bodies are obliged to create proper conditions to enable the employees' representatives to fulfil their statutory tasks. They are also obliged to examine the proposals of the employees' councils and inform the councils of their follow-up action (section 42 of the Act).

The detailed rules and the scope of co-operation of the heads of the civil servants' administrations with the employees' councils are determined by the Order of the Council of Ministers of 8 November 1982 (published in Dziennik Ustaw No. 39, text 261).

Trade union rights of prison service staff

Article 9 of the present Convention states that the extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.

For many years the officials of prison establishments were part of the militia. After the reform and placing of the prison establishments under the Minister of Justice, a separate formation established: the prison service. From the standpoint of hierarchy and discipline it is similar to the militia and also, due to character of service, its hierarchy and duties, it is treated as the militia.

It should be added that both in doctrine and in practice the opinion prevails that the functionaries of the prison service - just as the functionaries of the militia and professional soldiers are not workers in the sense of section 2 of the Labour Code. If the right to form and join trade unions is granted only to workers, the exclusion of persons being the functionaries in the sense of section 13 of the Trade Union Act does not justify any eventual complaints because it is in accordance with the legal order existing in Poland and corresponds to the spirit of the Convention.

Structure of the trade unions

The structure of the trade unions covering at present over 7 million members (over 60 per cent of the total number of workers covered by the right to organise) is not uniform and its picture is the result of a kind of spontaneity in the process of forming the trade union structure at the over-establishment level. The majority of trade union organisations at the enterprise level, independent, self-managing and having legal personality are grouped into federations. In 1987-88, 116 federations functioned in Poland. Thus, in different branches there were several federations in each one and the problem arises of principles and forms of their co-operation (or its absence). Some trade unions (17) formed the nationwide uniform trade unions, for example the Union of Polish Teachers and the National Trade Union of Workers of the Polish Academy of Sciences. Some trade unions have not formed the over-establishment structures, nor have they joined such structures; thus, they are not associated in the All-Poland Trade Union Alliance. Changes towards trade union organisational pluralism are obvious when compared with the pre-1980 situation when the Act of 1949 provided for the uniform, centralised trade union structure and only 14 national branch unions existed.

The right to collective labour disputes and to strike

Polish legal provisions governing the right to strike are the first and unprecedented legal regulation in this field in the system of socialised ownership, differing from the system of market economy. It is thus difficult to compare Polish regulation with the known - and rarely existing - strike regulations of other countries. It is also worth noting that there are no detailed international standards in this field which could serve as patterns for the legal solutions and practical procedures.

The Trade Union Act of 1982 permits strikes aimed at defending the economic and social interests of a given group of workers. Political strikes are prohibited. The Committee of Experts recalled in 1988 that the exclusion of strictly political strikes from the scope of the principle of freedom of association cannot concern strikes expressing criticisms of the economic and social policy of the Government. However, although the terms "political strike" and "strike in defence of the economic and social interests" are not specified in the Act or in current interpretations of this Act, the Government supposes that the strikes which the Committee of Experts had in mind in its 1988 observation would be legally admitted in Poland - if the other conditions determined by the Act were fulfilled.

The 1982 Act guarantees to workers the right to strike and to trade unions the right to organise strikes. The right to strike is the individual right of each worker used according to his will. The right to organise strikes is the exclusive right of the trade union.

The Act excludes from the right to strike workers of the specific categories of enterprises or occupying specific posts. These exclusions are justified by general considerations connected with necessity of ensuring during the strike:

- benefits and means necessary for the normal existence of the society;

- state safety and defence;

- normal functioning of state bodies and public services; and

- fulfilment of the international obligations of fundamental importance.

Taking into account the suggestions of the ILO Committee of Experts that broad exclusions from the right to strike by various legislative systems are not appropriate, the Government emphasised that after some time of application of the Trade Union Act and in the light of acquired experience, possibly in the course of elaborating the above-mentioned general reform of the labour law, the possibility of revision of the determined exclusions will be analysed.

Polish regulation of strikes unequivocally determines that in the model of economy of Poland the strike is the final means of settling a collective dispute if the other possibilities of settling the dispute are exhausted. The 1982 Act established three stages of settling collective disputes (direct negotiations, conciliation and social arbitration) and only after these are exhausted may the trade union organise a strike.

Among the conditions of admissibility for a strike, the Polish legal regulation requires the consent of the majority of the personnel expressed through secret voting (majority of votes of all the workers employed in a given enterprise and not only the majority of workers taking part in voting). The Act considers that if the strike is to be the expression of will of the collectivity, then refraining from taking part in a vote means that there is a lack of support for the strike. It would be pointless to allow strikes not supported by the majority of the collectivity. The Committee of Experts is of the opinion that the majority of persons voting should be enough to consider the strike as acceptable by the collectivity. Since there are no international standards in this regard, the opinion of the Committee of Experts is worth noting and analysis; it will thus be analysed in the framework of work on the reform of the labour law.

In order to demonstrate the practical functioning of the Polish three-stage machinery for settling collective labour disputes (direct negotiation, conciliation and social arbitration), as well as the right to strike, the Government submits selected information on collective labour disputes and strikes for the years 1985 to 1988 in Poland, according to trade union sources:

Firstly, the following are examples of collective disputes between national trade union organisations and central administration:

- Federation of Ship Repair: a dispute arose with the former Minister of Labour, Wages and Social Affairs concerning the distribution of working time; in autumn 1986 arbitration procedure accepted the claims of the trade unions.

- Federation of Tourism: a dispute arose with the former Chairman of the Committee for Physical Culture and Tourism concerning increased meat coupon norms for the manual staff of hotels; the dispute was lost.

- Federation of Open-Pit Miners (Rock Miners): a dispute with the Government commenced in October 1986 and was aimed at extending the "Miner's Charter" to the miners employed in granite and basalt quarries (miners employed in sedimentary rock quarries were already covered by the "Miner's Charter"). The issue had been in existence for many years. Despite recent work on amendments to the Regulation of the Council of Ministers dated 30 December 1981 concerning the "Miner's Charter", the council of the Federation decided to announce protest action and strike stand-by. On 16 March 1987, as an expression of the protest, all enterprise buildings were equipped with flags. On 19 March 1987, the Chairman of the Council of Ministers signed a decision which extended to rock miners the provisions of the "Miner's Charter", thus accepting the rock miners' protest.

- Federation of Construction Workers: a dispute arose with the Minister of Construction concerning an unlawful (as maintained by the Federation) limitation of allowances to pensions secured for some professions by the "Charter of Construction Workers". The Board of Social Arbitration is in favour of the claim, yet the dispute continues; on 9 May 1988 another round of talks advanced the possibility of a final settlement of the dispute in the near future.

- Federation of Energy Workers: a dispute with the Minister of Industry commenced on 20 April 1988 concerning wage increases to the level existing in other industries. Claims have been made to implement the provisions of the 1980 agreements which guaranteed a wage level corresponding to that of steelmill workers. The dispute was settled on 3 May 1988, with the signing of an agreement in which preferences were made in order to reach a 50 per cent wage increase.

- Federation of Communications Branch: a dispute arose with the Minister of Transportation, Maritime Economy and Communications concerning an average wage increase in order to make it close to the national average. On 3 May 1988 an agreement was signed before the Board of Social Arbitration which secured additional means for a motivation fund, an increase of exports and improved quality of services.

- Federation of Municipal Transportation: a dispute arose with the Minister of Transportation, Maritime Economy and Communications concerning the wage increase and an adjustment to that of other branches. The dispute commenced on 17 March 1988 an was settled with an agreement signed after a strike in Bydgoszcz. The wage increase for municipal transportation workers by some 50 per cent was made possible through concessions in the excessive wage increase tax and an efficiency improvement programme.

- Federation of Miners' Trade Unions: a dispute arose with the Government in May 1988 concerning a revaluation of real wages and system of wages determination. According to the Federation, the fixed 30 per cent threshold for wage increases free of the excessive wage increase tax does not secure the possibility of keeping up with the increasingly rising cost of maintaining living standards. Claims were made to increase by 50 per cent the wages in mining. In the course of negotiations it agreed that, in view of recent decisions fixing the tax-free threshold of wage increases, it was possible to provide a wage rise of 49 per cent on the average. In the final agreement signed on 10 May 1988 it was provided that, after the second quarter, an analysis of wages and living standards costs in mining would be carried out in order to take further appropriate decisions.

Secondly, the following are examples of collective disputes at the enterprise level:

- Mechanical Equipment Factory "PONAR" in Ostrzeszów: (March - April 1987). A dispute arose concerning a change in the wage system. After having exploited the entire legally prescribed procedures, including a strike stand-by, the trade union won concessions in an agreement: the wage increase reached was 7,071 zlotys ($1 = 624 zlotys at 6 June 1988), i.e. close to that claimed (8,000 zlotys). The dispute was announced after the management stated that wages for 1987 may increase only by 500 zlotys and 4 per cent of the bonus per employee (the average wage at that time was 19,600 zlotys). Any wage increase higher than that might have caused bankruptcy of the enterprise due to the danger of exceeding the 12 per cent wage increase threshold and subsequent 500 per cent tax on any wage increase above that, which would result in lost crediting abilities in spite of the high performance of the enterprise. The agreement was signed and announced 20 minutes before the strike was to commence. The strike was declared - according to legal provisions - by the enterprise workforce in a secret ballot in which 992 workers took part (the total enterprise workforce being 1,400 persons) - 721 were for the strike, 109 against and 18 votes were not valid. In this case, the rules of the economic reform were observed, and the dispute was settled within the enterprise though it necessitated extra work having a total value of about 700 million zlotys (this provision was mentioned in the agreement).

- Electric Machine Factory EDA in Poniatowa: (April - October 1987). The dispute concerned a wage increase of 3,500 zlotys. In accordance with the legal provisions, the course of the dispute involved a referendum, strike stand-by and warning strike. The final wage increase amounted to about 1,300 zlotys per worker. In the referendum, 72 per cent of those entitled to vote cast their votes, 92 per cent of whom voted "for". Financial means for the wage increase were taken from the part of profits devoted to investment and paid in the form of monthly motivation bonuses, but part of them must have been spent on the excessive wage increase tax. Additionally, a proportion of the wage increase was paid due to reduction of employment. It should be mentioned that the Workers Council objected against such allocation of financial means out of profits, but finally changed its attitude after the explanations of the management.

At the end of April and the beginning of May 1988, trade union organisations in enterprises increased the number of collective disputes in view of social discontent with the falling value of real wages and economic difficulties of the enterprises. The majority of these conflicts commenced before the government decisions were announced increasing by 7 per cent the threshold of wage increase free of the tax on excessive wage increase.

In the "Lenin" (Krakow) and "Stalowa Wola" steel mills, as well as in some other local enterprises of municipal transportation (Bydgoszcz, Szczecin), trade unions declared collective disputes with the management after strike actions of part of the workforce undertaken apart of trade union organisations. In those cases trade unions have taken over negotiating the economic claims of those related to working conditions, not expressing, however, their attitude towards political issues raised by the strikers.

According to trade union sources, the causes of the majority of disputes were as follows:

- unstable and delayed regulations and legal provisions concerning general economic issues, especially related to the enterprise wage fund;

- incompetence and disregard of the Trade Union Act by state administration organs;

- lack of information and consultations in the process of introducing wage, bonuses and awards systems;

- lack of reaction to trade union protests;

- prolonging and time-consuming settlement of numerous issues by a part of central, intermediate and lower levels of the administrative apparatus as a result of their incompetence and bureaucratic attitudes.

The Government informs the present Committee that on 11 May 1988 the Seym adopted the Act on the extraordinary rights and entitlements for the Council of Ministers - of the economic character - aimed at eliminating obstacles in the implementation of the economic reform and accelerating the rate of this reform. The Act introduced - for the transitory period from May 1988 to the end of 1988 - additional limitations on the possibility of starting collective disputes (thus also of organising strikes) in matters resulting from the application of these extraordinary rights of the Government, unless the starting of such a dispute is supported by the All-Poland Trade Union Alliance after consultation with competent federations, or is supported by the National Federation of Farmers, Agricultural Circles and Agricultural Organisations. This limitation will remain in force until the end of 1988 and its aim is radically to support the implementation of the economic reforms.

Other activities in favour of the protection of human rights and basic freedoms

The Government stresses that - despite the difficult socioeconomic situation - it attaches great importance to full observance in Poland of human rights and developement of public institutions serving this aim. It has already mentioned the establishment, in February 1988, of the National Committee for the Labour Law Reform, which has until 1990 to prepare the draft of the labour law codification. At the same time, at the Ministry of Labour and Social Policy, the Group of Experts was established for examining the conformity of Polish legislation with the ratified ILO Conventions in the field of human rights.

The whole legal system of the Polish People's Republic is at present the subject of important modifications. Many changes have been introduced to the penal, civil and rural law. The influence exerted by citizens upon the activity of the State and administration organs in the form of social consultations and the national referendum received legal standing in 1987. The right of citizens to participate in social control has been increased thanks to an increase in the role of various social organisations (especially trade unions) as well as the forms of social self-management (especially workers' self-management) and development of their control functions. It also mentions the changes in the legal provisions on elections of people's councils, which increased the citizens' possibilities to influence the selection of candidates. Essential progress can be noticed in the field of implementation of rights of association. Legal provisions in this field (of 1982) will be modified. Besides, the institutional guarantees of implementation of rights of citizens and law and order have been developed. The Supreme Administrative Court has been established as an organ independent of the administrations, which controls the legality of administrative decisions. In 1986, the Constitutional Tribunal started its work. It examines conformity with the Constitution of legal acts and other acts of the central state organs. Of particular importance from the standpoint of citizens' rights and freedoms is the activity of the Ombudsman for Citizens' Rights who is to guard the rights and interests of citizens set out in the Constitution and legal provisions. The social basis of the institution of the Ombudsman is reinforced by the establishment of the Social Committee of Human Rights, composed of persons having high moral authority.

The above activities show that the Government does not treat human rights and methods of their implementation. The humanistic aims of the socialist system oblige the Government to meet better the growing aspirations, with the essential role played by the feeling of real justice in the social sphere, political democracy and subjectivity of citizens.

The Ministry of Labour and Social Policy, as in the past, will inform the ILO of the progress in the work in the field of adjusting the national legislation to ILO standards in the matters raised by the Committee of Experts.

In addition, a Government representative, with respect to the application of Conventions Nos. 87 and 98, referred to the written communication submitted by the Government which contained a description of the present legal situation in this country. This situation was characterised by two elements: firstly, the Law of 8 October 1982 on trade unions which, in its general past on the prospects, assumed the existence of trade union pluralism and dealt with situations where there were more than one trade union organisation in an enterprise; and, secondly, the transitory provision of the same law which had temporarily suspended the legal construction of pluralism. This provision stipulated that "in the period, the end of which would be determined by the Council of State, only one trade union organisation shall act in an enterprise". In spite of the fact, that the necessary suspension of trade union pluralism was based and justified by the general political, social and economic situation in Poland, the Government did not deny that there was a problem of discrepancy between the transitory provision suspending pluralism and Convention No. 87. A group of experts in Poland, which had been previously referred to in this Committee, had the mandate to carry out an in-depth analysis of this problem, considering its political, social and economic aspects and to suggest to the authorities proper ways of overcoming the difficulties. At present, there was a favourable political climate in Poland towards achieving progress in resolving the open problem of compliance with Convention No. 87. In this regard, the Minister of Labour and Social Policy of Poland had announced several days ago in the Plenary of this Conference that the authorities of the State had recently declared that they were for a pluralistic pattern of co-operation and common responsibility and that a reform-orientated coalition, covering the representatives of different political and moral orientations, was expected in Poland. He had further stressed that Polish authorities were looking towards the ILO for understanding and patience, particularly in the Committee on the Application of Standards with regard to their examination of the problem of trade union pluralism, as well as pluralism of farmers' organisations. With respect to the observations of the Committee of Experts on trade union rights of officials in prison establishments, the Government representative referred to the explanations contained in the above-mentioned written communication. In Polish labour law theory, as well as in practice, the opinion prevailed that the officials in prison establishments were not workers as defined by Article 2 of the Labour Code. This was also true for the officials in the Polish police, militia and professional soldiers. For many years, the officials of prison establishments were part of the police. From an organisational point of view, they were separated from the police after the reform when they were placed under the Minister of Justice. The prison establishment officials, however, preserved the legal status, hierarchy and discipline similar to that of the militia. In light of Article 9, Convention No. 87, it was the Government's conviction that article 3 of the Polish Law on trade unions, which provided that the workers' right to organise in trade unions did not apply to officials in the militia or prison establishment, was in conformity with the spirit and meaning of Convention No. 87. With regard to the Committee of Experts' observations concerning restrictions on the right to strike, the Committee had noted that the Polish legal provisions governing the right to strike were unprecedented in a socialist country. The Government representative noted that when these provisions were enacted the legislative authorities had not been able to take advantage of foreign experience since strike regulations contained in the legislation of other countries were very scarce and there were no international standards in this field. It was the Polish conviction that a strike was the ultimate measure in settling a collective labour dispute and it should only be applied if other possibilities of settling the dispute had been exhausted and had failed. The Trade Union Law of 1982 established three stages of settling collective labour disputes: direct negotiations, conciliation and social arbitration. Only after these stages had been applied and failed could a trade union organise a strike. The Government representative indicated that the above-mentioned written information demonstrated the practical functioning of the Polish three-stage machinery of settling labour disputes, as well as the practical functioning of the strike regulation. Furthermore, with respect to the observations of the Committee of Experts on restrictions on the right to strike, the Government representative indicated that her Government took a fully positive attitude towards at least two of the three observations made on this point. With regard to the observation concerning the extent of exclusions from the right to strike, the Government considered that, as a result of the general reform of Polish labour law, the list of essential services in which strikes were excluded may be revised and reduced, taking into consideration the suggestions of the Committee of Experts. The reform of the labour law was envisaged to be completed in the early 1990s. In regard to the exclusion of political strikes, the speaker noted that the Committee had recalled that the exclusion of strikes that were purely political in character from the scope of principles of freedom of association did not cover strikes which were aimed at criticising a government's economic and social policies. It was the Government's opinion that, although the term "political strike" and the term "strike in defence of the economic and social interest" were not explained in the law on trade unions, the strikes which the Committee of Experts had in mind in its observations would be legally permissible in Poland provided that the other conditions of the legality of a strike were fulfilled. Thus, the Government's position was positive towards this observation of the Committee of Experts. With respect to the Committee of Experts' comment concerning the Polish requirement of a consent of the majority of all the workers employed in the enterprise for a strike to be called, the Committee of Experts was of the opinion that a simple majority of the persons voting should be sufficient. In this respect, the Government considered that a strike should be the expression of the will of the collectivity and that refraining from taking part in a vote meant lack of support. However, in spite of such conviction, the Government gave its assurance that the opinion of the Committee of Experts would be brought to the attention of the national committee elaborating the general reform of the labour law in Poland. Thus, the Government did not reject this observation of the Committee of Experts.

The Workers' members welcomed the dialogue which had been resumed with the Government of Poland since last year, and that Poland had rescinded its notice to withdraw from the ILO. Despite differing views it was through meeting and re-establishing dialogue that solutions were able to be achieved. This case concerned two essential Conventions - Conventions Nos. 87 and 98 - and these were vital with respect to relations between the social partners and the Government. In light of the oral and written replies provided to the present Committee and the dialogue which occurred last year it would appear that there was a desire on the part of Poland to seek ways of resolving the problems which existed. However there were certain aspects which must continue to be examined. Firstly, certain legal provisions needed to be amended despite the existence of special situations. Based on the statement made by the Government representative, it appeared that good will to change clearly existed. It was necessary to translate this good will into practice. Secondly, the Workers recalled that even though there existed a number of trade unions, trade union pluralism desired by the workers did not exist in fact because only one trade union organisation could exist in an enterprise. Requests had been made by workers in many enterprises to establish new trade unions, and to date, these requests had been refused. The Workers' members were concerned by this situation but they hoped that the Committee charged with the reformation of the labour legislation as well as the good will demonstrated by the Government representative of Poland by resuming membership in the ILO would contribute to an improvement in this situation. The Workers' members further noted the problems which existed with regard to trade union officials in prison establishments. Despite the changes which had taken place in the law and the reassignment of these officials to the Ministry of Justice, this situation still needed to be clarified. The Workers' members recalled that the right to strike was a fundamental right which should be respected and which should not be used lightly because it could damage the interests of workers as well as the economy of the country. A strike was not a goal in itself. There existed agreements between the social partners in industrial and commercial enterprises as well as in public administration which included the possibilities of recourse. It was true that a strike should be the last recourse, but in certain cases strikes were justified particularly in serious situations such as in the dismissal of trade union leaders. Trade union organisations should remain within their sphere of competence with an awareness of the economic and social spheres; however, certain economic, political or social measures taken by governments could justify recourse to a strike. With regard to legislation, the Government seemed inclined to take measures which would be in conformity with the legislation. The Workers' members hoped that this situation would be improved and that Poland would be able to give full satisfaction to the Committee of Experts' observations as well as to the views expressed during the discussions in the present Committee.

The Employers' members noted the information contained in the report of the Committee of Experts, the written documents and the oral statement of the Government representative concerning this case. It was clear that Convention No. 87 entitled workers and employers to constitute organisations of their own choosing and thus guaranteed pluralism. It was to be decided by the workers and employers themselves whether they would make use of that possibility. The legal provision which required one single trade union was a very serious violation of the Convention. The argument that the workers at a certain time in history wanted only one trade union was not applicable because this would effectively mean that workers in the future would no longer have the right, guaranteed to them by the Convention, to create more unions of their own choosing. It was positive this Committee no longer needed to hold this discussion and that the Government recognised that it was not in conformity with the Convention. The Employers' members noted the Government representative's statement that the current non-conformity with the Convention was a transitional situation and that the trade union law recognised pluralism, but that these provisions were suspended for an indefinite period of time. Theoretically, improvements may have occurred, however, in practice a single trade union continues to exist. It should be noted that in his written communication the Government established the relationship between that question and the subsequent questions concerning political pluralism. Again, despite the theory, the Employers' members stressed that there were trade unions in Poland which were prohibited, not consulted and not represented in the Workers' delegation of Poland at the ILO Conference. It was noted from the report of the Committee of Experts that a certain number of protective measures existed against dismissals and thus the Employers' members agreed that certain matters were on the right path. Moreover, a certain number of comments concerning the protection of the right to organise were noted from the report. However, these improvements were only applicable to the authorised unions and not to the prohibited or non-authorised unions. For this reason the Committee of Experts quite rightly concluded that in the long run everything depended upon the practice and this will remain to be seen in the future. It was noted that since June 1987 no collective agreements had been concluded and the Employers' members wanted to know why this was the case. They expressed the hope that the road from the recognition of the need to apply, in practice, certain legal tenets would not be too long and that improvements in theory will become improvements in practice. Freedom of association was not yet guaranteed in Poland. Not without some concern, the Employers' members expressed their interest in the information which would be contained in next year's report.

A Worker member of the United States found the Polish Government's replies to the comments made by the Committee of Experts rather interesting but full of contradictions. For example, the Polish Government had stated that workers could freely organise to defend their occupational and social interests yet it was stated that as a temporary measure only one trade union organisation could act in an enterprise. The Workers' members posed the question as to what was the Polish Government's definition of temporary. With regard to the Polish Government's remarks concerning broad democracy at the enterprise level, he noted the statement in the written communication of the Government on the existence of self-managing bodies elected by the staff which were said to enjoy rights permitting them to influence the enterprise management and to control the activities of the manager. It should be noted that the so-called workers' self-management councils were intended to represent the collective employer, within the context of a planned economy, rather than the workers, therefore they could not be considered a replacement for trade unions. He noted that the Polish Government attempted to differentiate workers' rights between a system based on socialised ownership and one based on market economy with regard to restrictions on the right to strike. Workers' rights were workers' rights regardless of the economic system and that principle should be reflected in the conclusions of the present Committee. He noted that the trade union law forbade the organisation of more than one trade union in any one enterprise. Moreover, it defined the terminology by which a trade union must be known and thus excluded the usage of the name "Solidarnosc". It also required that any founding committee of a trade union must comprise a minimum of ten persons and a minimum of 50 members to be eligible for registration. In almost all enterprises the authorities established constitutive committees and thereby blocked the possibility of workers to legally organise unions themselves. However, some of the founding committees had failed to obtain the required number of members. Therefore, they remained unregistered and claimed to be independent since they were not linked with the official trade union movement. It was noted that in the list of examples of collective disputes contained in the written communication of the Government, no mention was made of the major strike at the Lenin Gdansk shipyard where the workers' main demand was the renewed legalisation of the NSZZ "Solidarnosc". He also noted the situation at the Catholic University of Lublin, an institution devoid of any trade union organisation, where the Government refused to register the workers' choice of a union simply because they wanted the word "Solidarnosc" in its name. With regard to the exclusions from the right to strike of categories of enterprises or occupations, the speaker requested clarification as to what was meant in the written communication of the Government by "benefits and means necessary for the normal existence of the society". With regard to the terminology of "excessive wage increase tax" as stated in this communication, he pointed out that this provision was confiscatory five times over even though it was the enterprise which had to pay it. Essentially this was an effective wage control because an enterprise would have to extremely profitable in order for the workers to be able to negotiate wage increases above the Government's threshold of 12 per cent. This so-called excessive wage increase tax forces compliance with the economic policy of the Government and represents serious interference in the collective bargaining process and the rights to collective bargaining as enshrined in Convention No. 98. The speaker regretted to note that in this year's Committee of Experts' report on Poland, no mention was made of the 1983-84 Committee of Inquiry set up by the ILO in 1983 regarding the application of Conventions Nos. 87 and 98.

A Worker member of the Byelorussian SSR noted that a sufficient amount of clear information had been put forward by the Government of Poland concerning the implementation of Convention No. 87. He pointed to the good co-operation of the Government of Poland with the International Labour Organisation and in this respect he referred to the very open and candid information contained in the written communications of the Government. He stated that the Government recognised certain differences which existed between national legislation and the Convention and in his view these differences were not as great as in some other cases already considered by this Committee. In respect of the legislation of Poland, and its conformity with Article 2 of the Convention No. 87, the Government had very clearly put forward its motives for its certain degree of divergence from Convention No. 87. The situation in Poland was not a simple one. At this stage, the Government had not been successful at doing everything that had been thought of or desired in order to bring national legislation into conformity with the Convention. In practice, Polish workers were guaranteed broad political rights and freedoms and they actively made use of them. This was clearly shown by the information contained in the written communication of the Government submitted to the present Committee. He noted satisfaction with the readiness of the Government to bring national legislation into conformity with the ILO Convention No. 87. He highlighted the fact that the Government had set up a national committee on reform issues of labour legislation and that a group of experts had been set up under the Ministry of Labour with similar objectives. This indicated the serious intentions of the Government. However, more effort and time will be required. He stressed that this Committee could take note of a certain amount of progress in the position of the Government and that patience should be shown with a view to the further evolution of this situation.

The Worker member of the United Kingdom noted the very comprehensive explanations provided by the Government and submitted before this Committee. With regard to the rights of civil servants to join trade unions, the written communication of the Government contained a list of exclusions which included employees whose duties were of a confidential nature. He drew attention to the fact that the Government of Poland was using the same argument as the Government of the United Kingdom in stating that Convention No. 151 overrode Convention No. 87. Convention No. 151 did not override Convention No. 87 and he hoped that the Government of Poland would recognise this in its revision of the labour legislation. It should be remembered that civil servants had rights the same as everyone else and that those rights were enshrined in Convention No. 87. With regard to the right to strike, he noted that the exclusions contained in the written communication of the Government, including areas such as safety and defence, the normal functioning of state bodies and the fulfilment of international obligations, seemed to comprise a definition of the work of the civil service. Thus the law appeared to virtually exclude civil servants from having the right to strike. He wished to remind the Polish Government that civil servants had the same right to strike as other workers.

The Workers' members, with respect to the applications of Convention No. 98, noted their concern with regard to the questions raised by the International Confederation of Free Trade Unions (ICFTU) and the World Confederation of Labour (WCL) concerning former trade unionists who have been interned, arrested or sentenced and then amnestied and who had difficulty in recovering their employment. These measures were said to have occurred for political reasons and not for reasons of involvment with a trade union. However, it was clear that when workers participated in trade union activities within the framework of Solidarnosc they were treated accordingly. Solidarnosc was a trade union organisation and it should be recognised as such and the activities of its members should not be considered political. Such discrimination against trade unions should not continue to exist. With respect of the implementation of Conventions, all Members of the ILO were beholding to the same duties irrespective of whether they were socialist or capitalistic countries. The Workers' members further noted that there was no comment made by the Polish member of the Committee of Experts concerning the observations of the Committee of Experts on Conventions Nos. 87 and 98. This may be seen as significant; efforts have been made and the Workers' members looked forward to more information and hoped for progress to be achieved in accordance with the Committee of Experts' comments.

The Worker member from the Netherlands noted his satisfaction that this year the present Committee was able to discuss the substance of the Polish case. It was important to note that this Committee stood, at the present time, at the point where the Committee of Inquiry left off. In previous years the Committee of Experts' reports contained the conclusions of the Committee of Inquiry. In this regard it would have been useful this year if the Committee of Experts' reports had made an effort to take stock of what had been realised up to the present time. Next year, he would like to see the Committee of Experts make an effort in this regard. He stated that the Polish Government had explained its present difficulties in terms of denying the right of Solidarnosc to represent the interests of its members on the basis of its economic situation. Many Governments had run into such difficulties, however, the argument in this case was not very impressive. Before Solidarnosc existed and during its existence there were major economic difficulties. Since Solidarnosc had been prohibited the economic situation had not improved. Moreover, it should be pointed out that the leadership of Solidarnosc had tried to participate in the national debate of the economic difficulties and they had taken a very responsible attitude. Therefore it was not this organisation's attitude which could have given rise to the repressive position taken by the Government. Further, the speaker regretted that the leadership of Solidarnosc had been prevented from joining delegations of international trade union organisations and from being represented at this Conference. This was also a violation of Convention No. 87.

The Government member of the USSR welcomed the return of Poland to the ILO and their participation in meetings. This proof of goodwill as well as the interesting dialogue in which they engaged demonstrated Poland's respect towards the ILO. Poland had ratified 74 Conventions, not only seven or nine Conventions. Of the 150 Members of the ILO only 11 countries had ratified as many or slightly more Conventions. In the present situation in Poland, it was not a simple matter for Poland to take on all these responsibilities. He noted the great praise which had been addressed to Poland this year as compared to last year. In this Committee the Polish Government had given an open and candid reply concerning the situations which have arisen in its country, including in the trade union movement. The complete information supplied by Poland in the written communications was much appreciated. Moreover it should be highly valued that the Government representative of Poland addressed the comments made by the Committee of Experts. In this respect there were certain matters being studied and there was a temporary decision regarding the question of trade union pluralism. The openness with which this situation was discussed showed the degree of responsibility taken by Poland. The fact that Poland had established a special committee to review legislation showed its full awareness that the measures which have been taken were of an emergent and transitory nature. This Committee should avoid giving lessons or recommendations as to how the Polish Government should act in every specific case. The comments which had been heard today concerning what the Committee of Experts did not fully do were not of reasonable analysis and they should not exist in this Committee's dialogue. Moreover, in the past, explanations of unemployment and economic difficulties had been accepted by this Committee as to why Conventions had not been applied, therefore it should not be said in this case that economic difficulties could not provide explanations. It was also noted that the need for compliance with Convention No. 87 was emphasised by various members who came from countries which had not ratified the Convention. In concluding, the speaker stressed that account should be taken of all the different facets of the situation prevailing in Poland.

The Worker member of the German Democratic Republic agreed with the statement made by the Workers' member of the USSR. The trade unions in the German Democratic Republic had very close relations with their Polish colleagues and they knew that the trade unions in Poland defended the interests of the workers under the very difficult conditions that existed in that country. It was one of the main duties of the ILO to give its greatest support to these endeavours and such support should include the taking note of the very constructive report of the Polish Government representative.

The Government member of the United States noted the good intentions that the Government of Poland had expressed. She suggested that in its review of the labour legislation, the Polish Government might also take into account the recommendations of the Committee of Inquiry which examined the Polish trade union situation in 1984. Even though all references to the Commission of Inquiry had been purged from ILO reports, its conclusions and recommendations were as valid today as the day they had been published. With respect to ratification, she noted that ratification was no substitute for implementation of international labour standards.

The Worker member of Austria was pleased to note that Poland had ratified 74 Conventions; however, if they had only ratified 72 he would have also been happy. He expressed concern over the problems concerning the application of Conventions Nos. 87 and 98 and he hoped that the Polish Government would seriously consider the recommendations of the Committee of Experts and of the Committee on Freedom of Association so that some progress could be recorded next year.

The Government representative of Poland, concerning the application of Convention No. 98, noted that the Committee of Experts had made two observations: one concerning the field of anti-trade union discrimination, and the second regarding the procedure of registration of collective agreements in Poland. With regard to the first observation of the Committee of Experts, the speaker referred to the extensive information which had been submitted to this Committee in writing. With regard to the second observation concerning the procedure of registration of collective agreements she noted that it had been a long tradition in Poland - never contested by the ILO - that collective agreements had entered into force after being introduced in a register kept by the Minister of Labour who, before registration, controlled the conformity of the agreement with the law. Prior to the social and economic reform in Poland, both parties to the collective agreement negotiated the agreement and as far as the economic aspects of the agreement were concerned - they were controlled by their respective high-level supervisory organs. As a result of the recent social and economic reforms in Poland, both bargaining parties were independent of any high-level supervision ; thus, theoretically, they were able to bargain for wages and other benefits which did not have a basis in the Polish economic situation or any accepted rules of economic reform. Yet, the Polish economy was based on social and economic plans established by negotiations and consultations between the Government and the trade union. Both of these parties -the Government and the Trade Union Alliance - were interested in ensuring that collective agreements complied with these economic plans. She noted that that was why the law of November 1986 on collective agreements had admitted the control of the conformity of collective agreements with the law as well as with the social and economic plans. The refusal to register a collective agreement by the Minister of Labour enables him to indicate the non-conformity of a collective agreement submitted to him for registration. The final appraisal with regard to whether a collective agreement was in conformity with the law - was within the competence of the Supreme Court. The final appraisal of compliance with the social and economic plans as entrusted to a special committee, half of which was comprised of representatives of the Presidium of the Government and half from the Polish Alliance of Trade Unions. This committee had to settle any dispute expeditiously, within a certain time period, and its decision was binding on the Minister of Labour. This mechanism of appraisal of the conformity of collective agreements had been the subject of long discussions and negotiations within the mixed governmental and trade union committee charged with the preparation of the draft law on collective agreements during 1985 and 1986. Following many months of controversy within this committee, the solution had finally been found and agreed to be included in the draft of this law. This solution was regarded as assuring the proper protection of rights and interests of workers, of trade unions and of the collectivity. Thus the Government appreciated the social values of this solution and at this time could not perceive any non-compliance with Convention No. 98 in this respect. The Government representative noted her satisfaction with the statements of both the Workers' and Employers' members and was particularly pleased with the Workers' declaration which proved that they understood the philosophy of the Polish strikes regulations. She wished to point out that the Polish Government did not deny the fact that the temporary suspension of trade union pluralism had raised problems of compliance with Convention No. 87. She referred to the task of the group of experts established in Poland to consult the Government and the authorities on the ways of overcoming this non-compliance. With respect to the remarks of the Worker member from the United Kingdom concerning the expression "benefits and means necessary for the normal existence of society", she explained that this included occupations such as fire brigades, state defence and security positions, manufacturing, storing and distributing foods, public health and social welfare, pharmacies and educational institutions. Moreover, with regard to civil servants, she pointed out that the law on civil servants acknowledged the right of Polish civil servants to organise in trade unions. It was not right to state that the law on civil servants imposed the monopoly of one trade union on Polish civil servants. With regard to the comments made by the Worker member of the United States, she noted that he had some legal misunderstandings or perhaps misinformation concerning the trade union situation in Poland and suggested that he discuss these with the Polish trade union member in this Committee.

Another Government representative of Poland recalled some basic facts about the trade union situation in Poland and the use of the right to associate in trade unions. There were more than 7 million members of trade union organisations in Poland and more than 27,000 trade union organisations. He noted that while pluralism in trade union organisations did not exist at the enterprise level, it could exist on a higher level, for instance on an industrywide basis. Recent data indicated that only 50 applications had been made for the establishment of a new trade union organisation in enterprises. With respect to the problem of the so-called Solidarity organisation, he noted that it had once been recognised as a trade union organisation, but because it had diverged from its trade union aims, it had been dissolved. It was true that there were some groups that called themselves Solidarity, but he questioned whether they were trade union organisations. There were three types of situation involving trade unions and political activities. One was when a trade union took a position on some political issue and in such a case, trade unions should be allowed to publicly make their position known. The second situation was when an established trade union diverged from the trade union activities and became a political organisation. The third type of situation was when a political group pretended to have the status of a trade union and this was the situation that existed with many groups which named themselves Solidarity. For this type of activity there were forums other than trade unions. With respect to the concern as to how the Government intended to change or revise the law on trade union association, the Council of State would decide when pluralism of trade union organisations on the enterprise level should be restored. In this regard, account would be taken of the work of the expert group in Poland, the general evolution of social and political life in Poland and the economic situation. With regard to this latter factor the speaker noted that at the beginning of the 1980s Poland suffered a severe economic and social crisis, particularly with respect to their external economic relations. With respect to the questions raised concerning the participation of Mr. Walesa in this Conference, he noted that Mr. Walesa had applied to the Ministry of Foreign Affairs for a passport and that the passports given by that office were only to persons who were on an official mission; and, as Mr. Walesa was not on such a mission, the application was not admitted.

The Workers' and Employers' members noted that it was not appropriate to bring up the past or, in other words, to give reasons for the prohibition of Solidarity. It would be better to look toward the future with the hope that there would be changes and that the past would remain the past.

The Government representative of Poland who has just spoken noted that it was not his intention to bring up the past but rather to respond to issues that had been raised. He stressed that his Government's oral and written statements before this Committee had been future-oriented.

The Committee noted the extensive written and oral information supplied by the Government and the detailed discussion which took place within the Committee. It noted that the Government of Poland did not deny that there were discrepancies between the Polish legislation and the provisions of the Conventions. It noted in this connection the assurances given by the Government as to its intention to take measures to comply with the Conventions and the establishment of a group of experts entrusted with the task of analysing the conformity of current Polish legislation with the Conventions. The Committee has to note, however, that no changes have been recorded with regard to the longstanding comments of the Committee of Experts on the nonconformity of several legislative provisions with the requirements of the Conventions. The Committee urged the Government, in the spirit of dialogue the latter has demonstrated, to take the necessary steps to ensure that the principles contained in both Conventions were fully applied in law and in practice so that next year the Committee of Experts would be able to note progress towards removing the present divergencies.

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

The Government has communicated the following information:

There are no legal provisions limiting the rights of citizens in the field of employment and choice of the place of employment in accordance with their professional skills. In the Polish labour legislation the principle of freedom of labour exists, and this means the requirement of unanimous declaration of will of both parties to the labour relationship (the enterprise and the worker) to conclude and continue the employment relationship.

This principle covers also persons released from penal institutions, including persons who have been pardoned.

In accordance with subsection 53(1) (2) of the Labour Code, an establishment may terminate a contract of employment without notice if the worker is absent from his work for more than one month without a valid reason (longer protective periods are provided for in the case of sickness of a worker, quarantine because of a contagious disease or caring for a child). There are no legal limitations as regards employment of persons released from penal institutions after having served a prison sentence. However, while taking into account the principle of free conclusion of the labour relationship, the re-employment of a worker in his former establishment and his employment in any other establishment depends exclusively on the will of the parties. The only exception is in the situation when employment in a given post depends on the fact that a candidate had no criminal record. This concerns only certain occupations and jobs. The situation is different in the case of detention awaiting trial or conviction if an establishment has not terminated the contract of employment (it is the right, but not an obligation of an establishment) or if this contract does not expire by virtue of the law. In these cases, the return of a worker to the establishment immediately after the reason of his absence ceases to exist (his release from the penal institution) causes his re-engagement on the previous conditions and an establishment is obliged to accept the worker in accordance with the employment contract binding them.

It should be mentioned here that to help the persons released from penal institutions, including persons having been pardoned, establishments in the whole territory of the country are obliged to employ these persons on the basis of a recommendation by a placement office, in the framework of announced vacancies. This obligation was established by paragraph 5, subparagraph 1(2), of the Order of the Council of Ministers of 8 August 1983 on compulsory placement in certain areas and the obligation of admitting to employment throughout the territory of determined categories of persons for social reasons (Dziennik Ustaw, No. 48, Text 215). This Order remained in force in the period from 26 August 1983 to 31 December 1985.

It should also be mentioned that no legal provision admits any discrimination in the field of implementation of the right to work in relation to a worker or a former worker due to his membership in a trade union or his participation in union activities.

Legal guarantees in this regard are contained in the new Trade Union Act in force since 11 October 1982 (sections 4 and 39). In accordance with these provisions no one can suffer injustice due to his membership of a union, or for being elected to office in a union or for staying outside a union. In particular these facts cannot constitute conditions for the conclusion of an employment contract, maintenance in employment or promotion.

In accordance with the legal Provision respecting collective bargaining in force since I January 1987 (Act of 24 November 1986 amending the Labour Code, published in Dziennik Ustaw of 1986, No. 42, Text 201), the Minister of Labour, Wages and Social Affairs is entitled to register collective agreements, after verifying their conformity with the legal provisions as well as with the social and economic policy of the State, determined by the Parliament within the national socio-economic plan. This right has also been vested in the Labour Minister in accordance with the preceding legal provisions.

Control of the collective agreements from the standpoint of their conformity with the legal provisions is a consequence of the legal order in force in which a collective agreement is one, but not an exclusive, source of the workers' rights. Such examination of the conformity of collective agreements from the standpoint of the legal provisions aims at ensuring observance by these agreements of the regulations concerning workers and an absence of conflict between the clauses of such agreements with provisions of the Labour Code and other legal or executory provisions governing generally and uniformly the basic rights and obligations of workers. Collective agreements are to regulate pay and other benefits and rights of workers only in so far as justified by the character of the work and the conditions of its performance, taking into account generally binding legal provisions in the field of labour law, e.g. the Labour Code, provisions on the minimum wages of the socialised economy workers, etc.

If the Labour Minister discovers a contradiction between the provision of a collective agreement and the law, and on this basis refuses to register it, this is not an act of interference in the contents of this agreement. He only obliges the parties to the agreement to renegotiate it or, if they question the decision of the Minister, to submit the dispute to the Supreme Court whose judgment is binding also upon the body registering the agreement.

As regards the conditions which link the registration of collective agreements to the conformity with the social and economic policy of the State as established by the national socio-economic plan, the following should be explained.

The national socio-economic plan is a law adopted by the Parliament. All the subjects covered by the socialised economy, including trade unions fulfilling their statutory tasks in particular in the field of determining the conditions of work and pay through collective agreements, are obliged to implement this plan within the framework of the planned economy. By this Act, the Parliament determines, for the subsequent five-year periods, the direction, aims and means of implementation of state Policy, inter alia, in the fields of pay, benefits and workers' rights. The provisions of the socio-economic plan have a general character and they require further specification, in particular through collective agreements. Principles in agreements on pay as well as other benefits and rights of workers, ajusted to the central wage policy established in the socio-economic plan, are elaborated in agreement with the All- Poland Trade Union Organistion for each five-year period. In the framework of these general decisions the collective agreements determine the basic minimum wage and other elements of remuneration and the rules for their being granted as well as other benefits and rights justified by the character of the work and the conditions of its performance in various branches and occupations.

The Minister of Labour, Wages and Social Affairs, when examining the conformity of the collective agreements with the central social and economic policy of the State (on the basis of principles of implementation of this policy through collective agreements, which are elaborated in agreement with the trade unions) does not interfere in the autonomous rights of the parties to the agreement. The Labour Minister only verifies the implementation of the general principles of state Policy.

The procedure for settling disputes concerning the refusal to register the collective agreement by the Minister of Labour, Wages and Social Affairs, which involves referring such disputes to an independent committee of the body registering the agreement, is the essential guarantee of the rights of the parties to the agreement.

It should also be mentioned that observance of the principles of the socio-economic policy of the State is, especially in the period immediately after a serious socio-economic crisis, necessary for the state authorities, enterprises, institutions, trade unions and the society as a whole. It especially concerns elimination of inflation and ensuring the equilibrium of the market, as well as creating an adequate system of incentives for raising labour productivity and improving work organisation and technological processes.

Legal provisions concerning collective agreements have been in force since 1 January 1987. To date, no agreement has been concluded and for this reason the Minister of Labour, Wages and Social Affairs has not had the occasion to use his powers in the field of registration of collective agreements.

See also under Convention No. 87, as follows:

The Government has communicated the following information:

In reports submitted to the Office, detailed information on trade union legislation and the development of the trade union movement has been presented.

In accordance with section 60 (3) of the Trade Union Act (consolidated text of 1985), "in the period determined by the Council of State one trade union organisation shall function in one enterprise". Thus the Act maintains during the transitory period the principle of monism, i.e. the existence of only one trade union in a given institution or enterprise. The reason for preserving the validity of this provision lies in the existing social and political and economic situation in Poland and especially the generally known economic difficulties of the country, owing largely to the limitation on economic relations with Poland by several developed countries.

As long as extensive socio-economic reforms are being carried out in Poland aimed at overcoming the existing difficulties, such a solution is particularly justified. This situation, which responds to the present interests of the State and the nation, can be changed by a decision of the Council of State if the circumstances justify it.

In the present period of socio-economic difficulties, according to the prevailing opinion which is reflected in public opinion polls, the activity of only one trade union organisation in an enterprise favours the integration of staff and the fulfilment by the trade unions of their proper function, i.e. that of defender and representative of the workers' occupational interests. It should be emphasised that the existing laws in Poland create the premises for broad democracy at the enterprise level. In addition to the trade unions, there exist in enterprises self-managing bodies elected by the staff and which enjoy broad rights permitting them to influence the enterprise management and the control of the activities of the managers.

Although the law admits only one trade union organisation in the enterprise, it do not exclude pluralism, because each trade union may determine its orientation; at present about 27,000 trade union organisations exist at the enterprise level. They all have legal personality and are grouped in 133 national organisations.

The trade union structure is a real mosaic. Certain trade unions are grouped in federations (116) while others are organised only at the national level (17), e.g. the Teachers' Trade Union. It should be added that this pluralism is more evident now than under the Act of 1949, which provided for a sole, centralised trade union structure and resulted in only 13 or 14 branch unions.

As regards the Committee of Experts' observation concerning an appeal which was submitted to the Constitutional respect of section 60(3) of the Trade Union Act, the Government states that, on 28 November 1986, a group of seven persons appealed to the President of the Constitutional Court to make use of his power to initiate Proceedings for examing the conformity of section 60(3), sentence 2, of the Trade Union Act of 8 October 1982 with article 84, paragraphs 1 and 2, of the Polish Constitution. (Institution of such proceedings is provided for in section 19(3) of the Trade Union Act of 29 April 1985 on the Constitutional Court.) After examining the case, the Court informed the appellants that their appeal had no basis under the current legal provisions and thus the proceedings would not be instituted.

The Act of 8 October 1982 on farmers' socio-occupational organisations concerns the free organisation of individual farmers, their family members and other persons whose work is directly connected with agriculture. These organisations are established for defending the occupational and social interests of individual farmers and they aim at the development of individual holdings. The Act provides that these organisations are independent of the state administrative bodies, as well as of state and social organisational units and that they act through their own democratically elected bodies, established under rules adopted by these organisations. These organisations themselves determine the scope and form of their activities within the framework of the legal provisions in force.

The National Federation of Farmers which, according to the above-mentioned Act, is an independent and self-governing association, is made up of agricultural circles, agricultural organisations and federations of agricultural circles and agricultural organisations. The Federation can also be joined on a voluntary basis by the national unions of the rural branch associations and other farmers' organisations. The National Federation, which has been considered by the Act as the main representative of individual farmers, therefore has no monopolistic character. The Act does not make membership in the Federation automatic for the branch associations, i.e. the free, independent and self-managing organisations representing the rights and interests of individual farmers specialising in a given kind of crop or animal production, or for the many social organisations operating in rural areas other than those mentioned in the Act.

It should also be mentioned that the organisations covered by the Act do not cover wage earners employed in the socialised agricultural sector or in the private sector or members of production co-operatives. They can join the appropriate trade unions provided for in the Trade Union Act of 1982.

Section 40 of the Act on civil servants employed by the state provides that they have the right to organise in trade unions with the following exceptions: high-level employees whose functions are normally considered as policy-making or managerial and employees whose duties are of a highly confidential nature. These exceptions are in accordance with the provisions of the Labour Relations (Public Service) Convention, 1978 (No 151).

The above-mentioned civil servants, as well as other non-unionised public employees, are entitled to form workers' councils. The task of these councils is to protect and represent the occupational and social interests of public employees who formed them vis-à-vis the heads of the respective administrations. The workers, councils act on the basis of this Act and rules which they adopt themselves (section 41 of the Act).

Heads of administrations and their higher bodies are obliged to create proper conditions to enable the workers' representatives to fulfil their statutory tasks. They are also obliged to examine the proposals of the workers' councils and inform the councils of their follow-up action (section 42 of the Act).

The detailed rules and the scope of co-operation of the heads of the respective administrations with the workers' councils are determined by the Order of the Council of Ministers of 8 November 1982, published in the official gazette, Dziennik Ustaw, No. 39, Text 261. This Order defines the scope of matters which should be the subject of consulations between the head of the respective administration and the workers' council or concerning which the council's opinion should be noted.

In accordance with paragraph 2 of this Order, the workers' council should be consulted in matters concerning all the workers represented by this council, and especially as regards: employment and implementation of the rights and obligations resulting from the labour relationship; remuneration for work and other benefits for workers as well as the financial policy; working conditions and occupational safety and health; workers' health protection and recreation and social and housing benefits.

The workers' council should express its opinion on the termination of the employment relationship, on the appraisals of workers and on the decisions in respect of: rewards and honours, the division and utilisation of the bonuses fund, distribution of hours of work and paid holidays and improvement of vocational skills.

In accordance with section 15 (1) of the Trade Union Act, workers employed in the military units subordinated to the Minister of National Defence and in enterprises subordinated to the Minister of National Defence or to the Minister of the Interior are entitled to form and join trade unions subject to observance of the requirements of national defence and safety.

In the military units and state enterprises subordinated to the Minister of National Defence, workers have formed trade union organisations. These organisations are associated in the Independent Self-managing Trade Union of Military Workers.

However, the right to associate in trade unions is not granted to workers whose functions and duties are of a highly confidential nature and who are restricted under the Act of 1982 on civil servants employed by the State; nor is this right granted to workers of the organisational units determined by the Minister of National Defence, because of their particular defence character (in particular, carrying out tasks at headquarters or involving telecommunication, or particularly confidential work). Generally speaking, only a small proportion of the military workers is not entitled to organise in the trade unions. These workers may form workers' councils.

Similarly, in accordance with section 14 of the Trade Union Act, workers employed in the military units and other organisational units subordinated to the Minister of the Interior are not entitled to form and join trade unions. This provision concerns workers employed in posts connected with transport, supply, telecommunications and technical branches of headquarters which are highly confidential jobs. These workers, in accordance with section 16 of the Trade Unions Act, may form workers' councils, similar to some categories of civil servants.

Article 9 of the Convention states that, "The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations."

For many years the officials of prison establishments were part of the militia. After the reform which placed the prison establishments under the Minister of Justice, a separate structure was established: the prison service. From the standpoint of hierarchy and discipline it is similar to the militia and also, due to character of the service, its hierarchical structure and duties, it is treated as the militia.

It should be added here that both in doctrine and in practice the opinion prevails that the officials of the prison service, just like the officials of the militia and professional soldiers-are not workers in the sense of section 2 of the Labour Code. While the right to form and join trade unions is granted only to workers, the exclusion of persons who are the public servants in the sense of section 13 of the Trade Union Act does not justify any possible criticism, because it is in accordance with the legal order existing in Poland and corresponds to the spirit of the Convention.

The Trade Union Act guarantees to workers the right to strike and to trade unions the right to organise strikes. The right to participate in a strike is the individual right of a worker, exercised in accordance with his will, and the right to organise strikes is the exclusive right of a trade union.

The Act excludes from the right to strike workers in specific categories of enterprises or who occupy specific posts. These exclusions are justified by general considerations connected with the necessity of ensuring during the strike: the benefits and means necessary for the normal existence of the society; state security and defence, the normal functioning of state bodies and public service, and the fulfilment of international obligations of fundamental importance.

It should be added that it is the first regulation on the right to strike in the system of socialist property which differs from the market economy system. As regards those essential services in which the right to strike is limited, it will be possible after some time and in the light of acquired experience to analyse this problem and propose the elimination of some exclusions.

In particular, the Act unequivocally determines that the strike is the final means of settling a collective dispute in the struggle for the economic and social interests of a given workers' group.

The admissibility of a strike depends, among other things, on the exhaustion of possibilities of settling the dispute through other means (such as direct negotiation, conciliation and social arbitration) and on the consent of the majority of staff in a given enterprise. Although political strikes are not acceptable, there is a broad possibility of resorting to other, less radical means which can express the demands of the workers.

In this context it should be stated that if the right to strike is the right of each worker and not only of trade unionists then it follows that the trade union must obtain the consent of the majority of workers when taking the decision to call a strike. The trade union organises the strike to defend the economic and social interests of a given group of workers.

Likewise, the strike must be the expression of the wish of the staff and refusal to participate in the vote may mean a lack of support for the intentions of the trade union as regards calling a strike. Refusal by the majority calls into question the support for the trade union's intentions, and the calling of the strike in such a situation would not fulfil its purpose.

A Government representative expressed pleasure at his delegation's participation in the Committee after an absence of four years and its renewal of a constructive dialogue with it. During that absence, his Government had submitted regular reports on the implementation of ILO Conventions and replied to the comments of the Committee of Experts. Further information was supplied in February of this year, and detailed written information had been communicated.

The Government representative further stated that prior to the enactment of the Trade Union Act of November 1982, his Government had consulted ILO experts and some of their observations had been incorporated in the Act voted by Parliament. Further amendments taking into account comments of the Committee of Experts, had been introduced in the version adopted by Parliament in July 1985. The main point at issue remained section 60(3) of the Act, which laid down the principle of trade union unity, or the existence of a single trade union in each enterprise. This was because in the early 1980s there had been major social unrest in Poland and a serious breakdown in the economy; so-called trade union pluralism had given rise to abuses. It had brought competing demands from unions and periods of strikes which had endangered economic objectives. In addition, many internal obstacles such as a shortage of raw materials and external difficulties arising from economic sanctions against Poland and the need to service the huge foreign debt had made economic recovery almost impossible. Thus, the principle of trade union unity had been adopted as a temporary solution but not one which would exclude pluralism, since each trade union could determine its own orientation. There were presently some 27,000 trade unions at the enterprise level, 116 federations, and 17 other national-level organisations, such as the teachers' union. A good number of the federations were associated in the All-Poland Consensus of Trade Union, but many others were outside that structure. At the enterprise level, in addition to the trade union organisations, there was a self-management council elected by the workers with extensive rights, influence on the management and supervisory power.

The Trade Union Act guaranteed workers the right to strike and unions the right to organise a strike, excluding this right only for specific categories of undertakings or specific posts. The Government representative stated that these regulations regarding the right to strike constituted a first for his country and they were sometimes regarded as having the most comprehensive scope in the world. It was difficult for the Government representative to endorse the opinion of the Committee of Experts when it considered that a simple majority of union members should be sufficient for a strike, and that the need for the approval of a higher trade union body should be eliminated. The Government representative stated that trade unions had to obtain the consent of the majority of workers when they went striking, because the right to strike was granted to all workers and not just union members, in order to defend the economic and social interests of a given group of workers. In an enterprise employing, for example, 3,000 workers (which was common in Poland), he wondered whether 500 would be sufficient to form a quorum. A strike must be an expression of the wish of the workforce. Refusal to participate in the voting by the majority of the workforce might mean an abstention and a lack of support for a strike.

As regards Convention No. 98, there were no limits on the right of citizens to choose their place of employment in accordance with their occupation or skills, and the principle of freedom of labour was included in Polish legislation. Further, there were no legislative provisions discriminating in the implementation of the right to work on grounds of trade union membership or activities. The Minister of Labour, Wages and Social Affairs was entitled, under legislation in force since 1 January 1987, to register collective agreements after verifying their conformity with legal provisions and the implementation of the national social and economic policy as determined each year by Parliament in the annual social and economic plan. In considering such conformity, the Minister does not interfere in the right of the parties to an agreement and his function is that of guardian of the general State policy. No agreement had yet been concluded under these provisions and the Minister's powers in this respect had not yet been invoked.

The Workers' members welcomed the participation of Poland in the Conference, which was in itself a very positive element and contributed to the dialogue on the basis of the work of this Committee. Such dialogue should not be destructive or negative but should aim at finding solutions and achieving progress. They could not, however, avoid regretting that the short period when real freedom of association had been possible was now over. It was often the case that action in the field of freedom of association might appear to run counter to economic and social welfare. The important problem here was the recognition of trade union pluralism. In a country like Poland, this should not provoke negative reactions or accusations of demagogy or anarchy. In many industrialised countries trade unions had taken courageous stands and had accepted sacrifices in view of economic crisis and the danger to their country's competitivity and economic viability; this applied in Western Europe and other countries whether there was a single trade union or several trade unions: the unions had accepted their responsibilities as regards employment and the economy. Without economic strength, there could be no employment or improvement in the standard of living.

From the information communicated in writing, it appeared that there were arguments presented by the Government which could be understood and required attention, but the mere fact that there were 27,000 enterprise-level organisations and 6 million members did not prove that pluralism existed, because there could only be one organisation in each enterprise. Although it was said that diversity of trade unions might be damaging to social order, there were cases in other countries where this did not happen and did not damage workers' well-being or the functioning of enterprises. It was this question of pluralism which was at the centre of the Workers' members concern. Whether there should be a single trade union structure or trade union pluralism was according to the Convention, a matter for the workers and not for the Government to decide. If it appeared that there was a wish for trade union pluralism in a country-there was sufficient proof that this wish existed in Poland-thought should be given as to how this could be implemented and action taken in consequence. In this context, it was said that for a period whose length was to be fixed by the Council of State, only one trade union organisation would be allowed in each enterprise. This meant-in the opinion of the Workers' members-that this would also be the case at the sectoral and national levels. The workers' members wondered what "transitional" meant. It was important for "transitional" not to become "eternal".

The Workers' members thanked the Government representative for the information provided, but they had hoped for a reply to the questions put by the ICFTU and the WCL to the Government of Poland, in the comments which they had submitted for consideration by the Committee of Experts. There were also restrictions on the right to strike which had been discussed in other countries and even justified in some conditions. But the definition of essential services was something which needed reviewing. The requirement as to 50 per cent plus 1, in order to call a strike, was not a matter for the public authorities but for the workers and their own organisations: if a strike was called without a sufficient majority, it would fail and this would damage the trade union leadership, so that it was in their own interests to ensure a majority in favour of such actions. The Workers' members hoped the Government would continue to provide full information also in regard to the question of approval of collective agreements in relation to Convention No. 98: where trade union were recognised and consulted and could participate in social and economic activities in a spirit of tripartism, there was no need to fear that collective agreements would run counter to economic and social interests of a country.

The Employers' members welcomed the Government representative's participation in the work of the Committee. They recalled that only a single trade union structure was officially allowed in Poland. This provision had originally been devised as a transitory measure, but everyone knew that "temporary" things lasted. The Government had referred to the Congress of the All- Poland Consensus of Trade Unions which had, in its opinion, indicated its preference for a single trade union structure. The detailed information communicated in writing by the Government would be examined by the Committee of Experts. The Government had referred to the existence of many trade unions at the enterprise level, but this was not a solution to the problem at hand. It appeared that in Poland the workers did not desire to have a single trade union structure, and that in practice there was discrimination. In practice some workers wished to form different trade unions but were not allowed to do so. Thus the present case was distinguished from other situations where that wish of the workers was not apparent. As regards Convention No. 98, both aspects of the problem, namely the right to organise and the right to collective bargaining, had to be dealt with and their implementation improved. It was clear that in Poland the law and practice were not in full compliance with Conventions. The dialogue should be continued in order to lead towards greater conformity.

The Worker member of France welcomed the presence of the Government representative of Poland, but regretted that the dialogue had not recommenced earlier; that might have avoided difficulties and misunderstandings. The Committee of Experts had expressed the hope the Government would take the necessary measures to amend legislation on several points which had been the subject of comment by all the supervisory bodies. In particular, a Commission of Inquiry set up after a complaint had been made under article 26 of the ILO Constitution had also looked at the application of Conventions Nos. 87 and 98. In its recommendations, in paragraphs 578 and 579, it had authorised the Committee of Experts to follow up the application of the Commission's recommendations, and this was in a sense the present task. He referred in addition to paragraph 576 of the report of the Commission of Inquiry, which had recommended amending the law to ensure firstly the right of workers without any distinctions whatsoever (including public servants) to establish trade unions; secondly, the right of workers to establish organisations of their own choosing, the recognition of this right implying the re-establishment in practice of the option of trade union pluralism at every level (undertaking, branch of activity, regional and inter-occupational); and thirdly, the right of local unions and federations to associate in confederations. The Worker member of France wished to have the Government representative's reply to these points. He also referred to the recent statement of a leader of the All-Poland Consensus of Trade Unions that the membership of Solidarity was still about 1 million. In 1983, when the Commission of Inquiry was established, its membership was thought to have been 1,200,000. The number remained very large and it was not surprising that there were problems when the right to collective expression was denied to these people. Most recently, Lech Walesa had been refused papers which would have enabled him to participate in the present Conference. There had been a series of other detentions followed by conditional release and possibly fines. One million workers could not be ignored and the important thing was that the existence of Solidarity should be authorised once more.

The Worker member of the United States supported the statement of the Worker member of France. The Committee had had lengthy discussions of the present case and the views of the Committee of Experts and the present Committee were clear. The Committee of Experts had been impartial and it had recognised that the Trade Union Act did not permit trade union pluralism in Poland. Such pluralism must be allowed but not imposed on the workers.

The Government member of Czechoslovakia also welcomed the presence of the Government representative of Poland and the good will shown be the Government: this meant the present Committee must discuss the case dispassionately, so as to create favourable conditions for the continued membership of Poland in the ILO. Reference had been made by one member of the present Committee to issues not mentioned in the report of the Committee of Experts. The Committee of Experts' observation was to a large extent based on views of two international trade union federations. The Government representative had explained convincingly that the actual situation in the country was different and that it was not correct to say that trade union unity was imposed by law. The Worker member of Poland had also made a relevant statement in the Conference Plenary: he had referred to a great number of self-governing unions as one possible model of pluralism. Several unions had come into existence under the Trade Union Act, and had their own by-laws, so that the argument that trade union unity was imposed by law was questionable. The Convention could not be interpreted to mean that in every enterprise there must be at least two trade unions and, in any case, the provision in question was only transitional. The Trade Union Act was a major step forward and the fact that there are 6 million trade unionists in Poland speaks for itself. Some minor points remained, such as mentioned in the second point of the observation as to the right of prison officers to organise, but on the whole, the Committee should express its satisfaction concerning the development of the trade union situation in Poland.

The Worker member of Poland stated that there were over 7 million members of the All-Poland Consensus of Trade Unions. He wondered whether certain members of the present Committee did not wish to divide the trade union organisations into good and bad organisations.

The Government representative of Poland welcomed the dialogue in the Committee and recognised that there were differences of opinion and sometimes there was incomplete knowledge of the trade union situation in Poland. As before, the Government would do everything to comply with ILO Conventions. He repeated that the requirement of only one trade union per enterprise was a transitory measure and that, at the higher level, there was a variety and multiplication of structures. As for the document referred to by the Worker member of France, the Government had many times repeated its position on this matter. The Government representative pointed out, however, that Solidarity had been dissolved by an Act of Parliament on 8 October 1982, and not by administrative measures. It was dissolved not as a trade union, but as an organisation which went beyond the trade union framework. Over 60 per cent of the workers affected by trade union activities were now acting through the existing trade union structures, within, or outside of, the All-Poland Consensus. The Government representative did not accept the criticism voiced by a member of the present Committee whose country had not ratified any ILO Conventions on human rights, when he expressed his views on the right to strike, collective bargaining and freedom of association.

The Government member of the United States commended the Committee of Experts' observation on the issues of freedom of association, the right to organise and collective bargaining and the right of trade unions to functions independently, which were of continuing importance to the ILO. The actions of Solidarity members brought these matters continually to the ILO's attention. The Committee of Experts had said that it was bound to emphasise that a system of trade union unity imposed by law is not in conformity with the principle the free choice of workers to form their own organisations as provided for under Convention No. 87 and had referred specifically to section 53(4) of the Trade Union Act. He agreed with the Committee of Experts and hoped the Government would take the necessary action to lift present restrictions very shortly and to comply fully with Convention No. 87.

The Government member of the USSR also welcomed the participation of the Government representative of Poland and of the Worker member of Poland, which encouraged hopes of constructive dialogue and closer work in the Committee on the basis of mutual understanding in regard to the application of Conventions ratified. The Government representative had explained fully the matters referred to be the Committee of Experts and had spoken frankly of the difficulties experienced in Poland, and the reasons behind legislation relating to the Conventions in questions. The present speaker recalled the discussion of working methods of the Conference Committee. He cited the example of injustice where country A had ratified a Convention and had given a reply to the Committee and country B, which had also ratified the Convention, had refused to do so. He added that it was unfair for country C, which had not ratified the Convention, to give enthusiastic advice as to how it should be implemented, and this should be avoided. Such a case had now arisen. It was recognised by the speaker that difficulties were experienced but there were no general criteria for assessing the situation. A sovereign state was involved and its participation in the ILO should not interfere with sovereignty. However, even the Committee of Experts had provided a poor example in this respect by addressing itself to the Council of State, hoping it would take steps to amend legislation; and in the following sentence it had referred to the Constitutional Court. This meant that the Committee of Experts was going over the head of the Government and that was not proper. The development of trade unions in Poland could only be determined by internal conditions, and Polish workers and their unions should be left to decide for themselves how the process should take place. The present Committee should wish Polish trade unions success in this and not impose restrictions on them in the form of concepts from the outside and imposed criteria.

The Employer member of the United States also welcomed the participation of the Government representative of Poland but pointed out that there was no prohibition in the ILO Constitution or Standing Orders of the Conference as to participation in the present Committee by a country which had not ratified a Convention under discussion. His country implemented the principles of Convention No. 87, including trade union pluralism. The Committee of Experts had emphasised the importance of tripartism in the ILO and tripartism was practised in the United States. The employers in the United States believed that a Convention should be applied in full before it was ratified, and, since 1980, the United States had been making progress in examining Conventions. It was thus inappropriate to say that members from the United States should not participate in the present discussion.

The Worker member of the United Kingdom also welcomed the Government representative but expressed his general distrust of governments, particularly in regard to trade union affairs. The question was not whether there should be one or two trade unions, but the freedom to choose should belong to the workers, and the case in point was Solidarity. It was important that the name of Solidarity be mentioned because it was well known that this organisation exists and receives popular support. Now there was the creation of another trade union group in Poland which also claimed popular support. The real issue was what happened between the old popular movement and the new; that is the question that has to be answered. The Committee of Experts had suggested that in the process, Convention No. 87 had been violated. The speaker recongised the principle of state sovereignty but nevertheless the ratification of the Convention implied international obligations that had to be respected.

The Workers' members pointed out that when a country belonged to an international organisation and had accepted obligations on ratifying Conventions, the question of sovereignty was affected. The present discussion had been important and the outcome should lead to further dialogue and progress, taking account of the views of the present Committee and the Committee of Experts.

The Government member of France welcomed the dialogue which was taking place. He stated that it was natural that the economic crisis should be taken into account for the moment but he hoped that measures would be taken to reply to the simple question as to how to turn de facto pluralism into de jure pluralism.

The Committee took note of the discussion and in particular of the information supplied by the Government representative. The Committee welcomed the fact that a frank and open dialogue had been re-opened with the Government on the application of the Conventions. The Committee noted that important divergencies remained between the national legislation and practice and the Conventions, particularly as regards the right of workers to establish organisations of their own choosing and as regards the right to strike, the right to protection against acts of anti-union discrimination, and the right to collective bargaining. The Committee emphasised the importance it attaches to the dialogue that had been resumed this year, and to pursuing such a dialogue in order to overcome the difficulties encountered in the application of the Conventions. The Committee expressed the firm hope that the Government would soon take the necessary steps to ensure that the principles contained in the Conventions are fully applied both in law and in practice and that it would submit full information for examination by the Committee of Experts next year.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the observations of the National Commission of the Independent and Self-Governing Trade Union “Solidarność” (NSZZ “Solidarność”), received on 1 September 2022, which mostly relate to issues examined by the Committee in the present comment. The Committee also notes the observations of the International Trade Union Federation (ITUC), received on 1 September 2022 alleging violations of workers’ rights under the Convention, including anti-union dismissal, unfair treatment of trade unionists, and the prevention of unions from organizing social elections. The Committee requests the Government to provide its comments in this regard.

The Committee further notes that the Government replies to the observations of the ITUC, which were received on 1 September 2018 and referred to a series of anti-union discrimination acts, including the dismissal of more than 20 “Solidarność” representatives. The Committee notes that the Government provides information in this regard, indicating in particular that in several cases the employees were reinstated. The Committee also takes note of the Government’s comments in reply to previous observations of NSZZ “Solidarność”, the All Poland Alliance of Trade Unions (OPZZ) and the ITUC.

Article 1 of the Convention. Protection against anti-union discrimination.Legal proceedings applicable to reinstatements. The Committee had previously noted that the victims of anti-union dismissals could request reinstatement, but that the court proceedings could take up to two years. It had also noted the Government’s intention to consider amending the Code of Civil Procedure (CCP) in this regard. The Committee welcomes the Government’s indication that section 4772 (2) of the CCP was amended, so that the court, at the employee’s request, may decide to impose on the employer the obligation to continue the employment of the employee until the final conclusion of the proceedings. The Government adds that consideration was also given to the NSZZ “Solidarność” proposal to make additional amendments to the CCP, but the Ministry of Justice did not recommend any further amendments in this regard. The Committee notes the allegations of the NSZZ “Solidarność” that additional legislative changes to the procedural regulations contained in the CCP are needed if the persons who, by virtue of section 32 of the Act on Trade Unions, enjoy special protection under the Act on Trade Unions due to their trade union status or activities are to be efficiently protected against anti-union discrimination. In order to evaluate the effectiveness of the protection granted by the referred provisions, the Committee requests the Government to provide detailed information on the practical application of sections 32 of the Act on Trade Unions and 4772 (2) of the Code of Civil Procedure.

Effective sanctions and compensation to prevent anti-union discrimination. The Committee had previously requested the Government to take the necessary measures to raise the level of fines applicable to anti-union discrimination acts as well as to increase the amount of compensation in cases of anti-union dismissal. The Committee notes with regret that the Government merely reiterates the information that currently there are no legislative initiatives in this regard. The Committee urges the Government to take all necessary steps to expedite the process for the revision of the respective provisions, in consultation with social partners, so as to bring the legislation into conformity with the requirements of the Convention by increasing the level of fines applicable to anti-union discrimination acts as well as by increasing the amount of compensation in cases of anti-union dismissal. It requests the Government to provide information on all progress made in this regard.

Number of sanctions imposed. The Committee had previously requested the Government to provide statistics on the number of sanctions imposed under the amended section 35(1) of the Act on Trade Unions, and to provide information on how the burden of proof is managed by the tribunals when applying this section. The Committee notes the information provided by the Government on the number of complaints for discrimination based on trade union membership, as registered with the National Labour Inspectorate from July 2018 to June 2022: 15 in the second half of 2018, 55 in 2019, 40 in 2020, 57 in 2021, and 26 in first half of 2022 up to 20 June. The Committee also notes the statistics based on the number of persons validly sentenced pursuant to article 35(1) of the Act on Trade Unions in 2015-2019, which included two persons sanctioned, one in 2017 and one in 2019. The Committee also notes additional statistics provided by the Government related to a second set of persons sentenced for crimes prosecuted by the prosecutor. The Committee requests the Government to continue providing information on the number of sanctions imposed under the amended section 35(1) of the Act on Trade Unions, and in particular to clarify which type of offences and anti-union acts the second set of statistics refers to. Furthermore, noting that the Government has not provided information on how the burden of proof is managed by the tribunals when applying section 35(1), the Committee once again requests the Government to provide information in this regard.

Compensation available to “persons working for money”. In its previous comments relating to the protection against anti-union discrimination of “persons working for money” that are now covered by the Act on Trade Unions, the Committee had requested the Government, to specify: (i) whether the consequences of an anti-union termination of the contractual relationship of a “person working for money” are limited to or go beyond financial compensation; (ii)”on which basis and according to which modalities the compensation amounting to six months' salary for "persons working for money", who are trade union representatives and who would be subject to anti-union discrimination, is calculated. The Committee notes that the Government indicates that as a result of the amendment to the Act on Trade Unions, the special safeguards provided for in section 32(1) of this Act also apply to workers other than employees, and that in case of a breach by an employer of these safeguards, trade union activists who are not employees are entitled to a pecuniary compensation (due irrespective of the amount of the damage suffered). The Government further indicates that, pursuant to section 32(1)4, when determining the amount of the remuneration referred to in section 32(1)3, the average monthly remuneration for the period of six months preceding the date of termination of the legal relationship, giving notice or a unilateral change to such legal relationship is taken into account, and if a worker, other than an employee, has been working for a period of less than six months – the average monthly remuneration for the entire period of their employment. The Government however indicates that a trade union activist who is not an employee is not entitled to claim reinstatement but may be entitled to damages or redress in excess of the compensation amount, provided that a trade union activist proves in court proceedings all conditions legitimizing liability for damages. While welcoming the amendments to the Act on Trade Unions, in particular new sections 32(1)3 and 32(1)4, that provide for the special safeguards under section 32(1) of this Act to apply to workers other than employees, the Committee invites the Government to engage in consultations with the social partners so as to consider the possibility that the consequences of an anti-union termination of the contractual relationship of a “person working for money” are not limited to financial compensation. It also requests the Government to provide information with regard to the application of sections 32(1)3 and 32(1)4 of the Act on Trade Unions in practice and provide the statistics of the respective cases in this regard.

Article 4. Promotion of collective bargaining. The Committee had previously requested the Government to indicate the extent to which conditions of work, including pay, of “persons working for money” can be subject to collective bargaining. It notes with satisfaction the Government’s indication that due to the amendments made to the Act on Trade Unions, all the rules related to working conditions and remuneration of “persons working for money” that are subject to negotiations leading to signing a collective agreement, are the same as the rules previously applied to employees. According to the Government, every aspect of the work and remuneration of a worker may be subject to arrangements when negotiating a collective labour agreement, provided that they do not go below the conditions already established by applicable labour law. The Committee requests the Government to provide information on the number of collective agreements concluded and in force, the sectors concerned and the number of “persons working for money” covered by these agreements, as well as any additional measures undertaken to promote the full development and utilization of collective bargaining under the Convention.

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

The Committee notes the observations from the International Trade Union Confederation (ITUC) received on 1 September 2018 referring to a series of anti union discrimination acts, including the dismissal of more than 20 “Solidarność” representatives. The Committee requests the Government to provide its comments on these observations, particularly with regard to the dismissed “Solidarność” representatives that have not been reinstated yet. The Committee also notes the observations from the National Commission of the Independent and Self-Governing Trade Union (NSZZ) “Solidarność” and the All Poland Alliance of Trade Unions (OPZZ), received respectively on 9 and 27 August 2018 and the related comments from the Government.

Workers covered by the Convention. The Committee recalls that the Committee on Freedom of Association (CFA) (Case No. 2888) had requested the Government to ensure that all workers and their representatives enjoy adequate protection against acts of anti-union discrimination, regardless of whether they are or not considered an employee under the Labour Code or not. The CFA had referred the legislative aspects of this case to the Committee. In this regard, the Committee notes that the Act on Trade Unions (ATU) was amended on 25 July 2018, the amendments entering into force on 1 January 2019. The Committee notes that: (i) Article 2(1) of the ATU is now amended so as to recognize the right to establish and join trade unions not only to employees but also to “persons who work for money”, these persons being defined as those who provide work for remuneration, as long as they do not employ any other person to perform this type of work and irrespective of the legal characterization of their employment; (ii) paragraphs 5–7 also extend the right to establish and join trade unions to pensioners, persons on disability pension, unemployed persons, volunteers, interns, and other persons who work in person without being paid as well as to persons delegated to employers in order to complete substitute service, officers of the police, border guards, custom-fiscal service employees, prison service employees, firefighters and employees of the Supreme Audit Office; (iii) new articles 3 to 5 of the ATU extend the prohibition of unequal treatment based on trade union membership and trade union activities to the above-mentioned categories of workers; (iv) new article 32(1) of the ATU extends the special protection against termination and unilateral modification of remuneration or employment conditions to “persons working for money” who are trade union representatives; and (v) article 26(2) of the amended ATU establishes that trade union organizations shall have the right to take a position in matters related to the collective interests and rights of persons who work for money. The Committee notes with satisfaction that the personal scope of application of the ATU anti-union discrimination provisions covers new categories of workers and therefore is no longer restricted to employees.

Article 1 of the Convention. Adequate protection against anti-union discrimination. Prompt and effective judicial protection. The Committee had noted in its previous comments that court proceedings could take up to two years for victims of anti-union dismissal. In this regard, the Committee had noted the Government’s intention to consider establishing new measures in the Code of Civil Procedure that would grant employees concerned the right to remain in their jobs during the proceedings. The Committee notes that the Government refers once again to a possible legislative reform of the Code of Civil Procedure, notably the revision of article 477 and the addition of article 755. The Government indicates that the abovementioned amendments would give the courts the power to order measures in favour of employees by allowing them to remain in their jobs before the tribunal’s final decision on the matter. While welcoming the initiative to give courts the power to allow workers to remain in their job pending the final decision on their anti-union dismissal complaint, the Committee trusts that the Government will soon be able to inform on the adoption of the mentioned amendments.

In its previous comments, the Committee had also requested the Government to provide explanations concerning the very low number of sanctions imposed in relation to the number of legal actions filed under article 35 of the ATU for cases of anti-union discrimination. The Committee notes the Government’s indication that: (i) the application of legal and criminal sanctions is left at the discretion of courts, in line with the principle of judicial independence guaranteed by the Polish Constitution; and (ii) article 35(1) of the ATU has been amended so as to provide a more detailed description of prohibited acts of anti-trade union actions and to make more effective the intervention of the legal protection authorities. While welcoming the fact that the amendment to article 35(1) has extended the list of anti-union acts subject to a penalty, the Committee observes that the definition of anti-union discrimination has changed little. The Committee requests the Government to provide statistics on the number of sanctions imposed under the new article 35(1) of the ATU and to inform on how the burden of proof is managed by the tribunals when applying the mentioned provision.

Effective sanctions and compensation to prevent anti-union discrimination. In its previous comments, the Committee had noted from information received from the Government that, according to the Polish legislation and judicial practice: (i) workers subject to anti-union discrimination could be either reinstated or compensated; (ii) while reinstated trade union representatives were entitled to back pay in full, the maximum amount of back pay to the other reinstated workers was limited to two months; (iii) victims of anti-union dismissals not reinstated by the courts were granted a compensation of up to a maximum of three months’ salary; and (iv) the level of fines imposed in practice as a consequence of anti-union discrimination appeared to be very low (between US$375–US$425). In order to ensure that the sanctions established and enforced were sufficiently dissuasive to prevent future acts of anti-union discrimination, the Committee had, in its different comments, requested the Government to take the necessary measures to raise the level of fines applicable to anti-union discrimination acts as well as to increase the amount of compensation in cases of anti-union dismissal. The Committee notes the Government’s indication that there are currently no projects to modify the legal provisions that would lead to an increase of the penal sanctions applicable to anti union discrimination acts. While welcoming the fact, as shown by the ITUC observations, that the courts do order reinstatements in case of anti-union dismissals, the Committee reiterates its request to the Government to take the necessary measures to raise the level of fines applicable to anti-union discrimination acts as well as to increase the amount of compensation in cases of anti-union dismissal. The Committee requests the Government to provide information on any progress in this respect. With regard to the protection against anti-union discrimination of “persons working for money” that are now covered by the ATU, the Committee requests the Government to specify: (i) whether the consequences of an anti-union termination of the contractual relationship of a “person working for money” are limited to or go beyond economic compensation; (ii) on which bases and in which manner is calculated the compensation the equivalent of six-months’ pay applicable to “persons working for money” who are trade union representative and who would be subject to anti-union discrimination.

Article 4. Promotion of collective bargaining. The Committee requests the Government to indicate the extent to which conditions of work, including pay, of “persons working for money” can be subject to collective bargaining.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the observations from the International Trade Union Confederation (ITUC) received on 1 September 2015 and on 1 September 2014, which concern allegations of anti-union dismissals and other acts of anti-union discrimination, as well as the Government’s comments thereon. It also notes the observations of the National Commission of the Independent and Self-Governing Trade Union (NSZZ) “Solidarnosc” received on 26 August 2015, which mainly relate to legislative issues raised under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). Lastly, the Committee notes the Government’s comments on the 2012 ITUC observations concerning allegations of anti-union dismissals in various sectors of activity.

The Committee notes with interest the establishment of the Social Dialogue Council, a new tripartite institutional forum replacing the Tripartite Commission for Social and Economic Affairs.

Article 1 of the Convention. Effective protection against anti-union discrimination. The Committee had previously noted, in the context of earlier allegations of inefficiency of the proceedings and sanctions established in the legislation, the various legislative provisions enumerated by the Government providing protection against anti-union discrimination (article 59(1) of the Constitution; sections 18, 38 and 45(1) of the Labour Code; and the penalties under section 218(1) of the Penal Code and section 35(1) of the Act on Trade Unions of 1991), as well as relevant statistical information. The Committee requested the Government to submit statistics on the number of new cases concerning anti-union practices brought before the courts. Furthermore, in view of earlier allegations that victims of anti-union dismissals could ask for reinstatement but court proceedings could take up to two years, the Committee had noted the Government’s reference to a possible amendment to the Code of Civil Procedure so that, in cases of anti-union discrimination, the persons concerned may remain in their jobs during the proceedings; and had requested the Government to provide information in this respect.

The Committee notes that the Government refers to sections 11 (prohibition of discrimination in employment on the grounds of, inter alia, trade union membership) and 47 of the Labour Code (right of reinstated employee to remuneration for not more than two months or, in the case of employees under special protection, for the entire period being unemployed) and section 32 of the Act on Trade Unions (special protection in the form of prohibition to terminate or unilaterally change conditions of employment without the consent of the trade union board, for a certain proportion of trade union officials). The Committee also notes the statistical information provided by the Government on the number of cases brought to courts for discrimination in employment (before the district courts 139 in 2012, 98 in 2013 and 79 in 2014; before the regional courts 14 in 2012, 14 in 2013 and 12 in 2014), their duration in days (before district courts 225 in 2012, 285 in 2013 and 249 in 2014; before regional courts 365 in 2012, 274 in 2013 and 511 in 2014) and their outcome; the number of sanctions imposed by courts; and the number of complaints against anti-union discrimination brought before the National Labour Inspectorate (17 in 2012 as of July; 37 in 2013; 37 in 2014; and five in 2015 until June) and their outcome, including concrete examples of cases in which inspections have been undertaken and their outcome. Lastly, the Committee takes note of the Government’s indication that at present, the Ministry of Justice does not envisage any amendments to the Code of Civil Procedure.

Taking into account the numerous allegations of acts of anti-union discrimination, the Committee observes with concern the extremely low number of sanctions imposed for cases of anti-union discrimination or interference under section 35(1) of the Trade Union Act (zero in 2010; two in 2011; six in 2012; zero in 2013; and zero in 2014), and also notes a decrease by half in the number of sanctions imposed for infringements of workers’ rights in general under section 218(1) of the Penal Code (434 in 2010; 358 in 2011; 203 in 2012; 179 in 2013; and 172 in 2014). The Committee requests the Government to provide explanations in regard to these numbers and to take any necessary measures to ensure the effective protection against acts of anti-union discrimination in practice.

In the same context, the Committee observes with concern that in the two concrete examples of cases supplied by the Government in which inspection has been undertaken and a court ruling issued, the fines imposed for the termination of employees under special protection without the trade union’s consent (section 32 of the Trade Union Act), amounted, per dismissed employee, to 1,700 Polish zloty (PLN) (approximately US$425) and PLN1,500 (approximately US$375), respectively. The Committee considers that such level of fines imposed on the employers, which corresponds to half of the national average monthly wage, are too low to be sufficiently dissuasive. In view of the recurrent allegations of numerous acts of anti-union dismissals, the Committee invites the Government to raise the level of fines imposed on employers in such cases, in order to ensure that the sanctions established and enforced are sufficiently dissuasive to prevent future acts of anti-union discrimination.

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

The Committee notes the comments made by the International Trade Union Confederation (ITUC) sent on 4 August 2011 and 31 July 2012. The Committee also notes the Government’s reply to some of the observations made by the ITUC. Similarly, the Committee takes note of the reply from the Polish Confederation of Private Employers (LEWIATAN), dated 3 November 2011, to the ITUC’s allegations on the refusal of an enterprise to negotiate improvements in employment conditions, and in particular its statement that the crisis – which started after the agreement had been concluded in 2008 – had had drastic repercussions on the economic situation of enterprises; in September 2011, all the enterprise’s shares were sold. The Committee requests the Government to send its observations in connection with the ITUC’s comments made in 2012 on anti-union dismissals in various sectors of activity. The Committee also notes the comments from the National Commission of the Independent and Self-Governing Trade Union (NSZZ) “Solidarnosc” on matters already highlighted by the Committee.

Article 1 of the Convention. Protection against anti-union discrimination. In its previous observation, the Committee noted the allegations of inefficiency of the proceedings and sanctions established in the legislation, and urged the Government to take the necessary measures to ensure the effective application of the legal sanctions for all cases of anti-union discrimination. The Committee also requested the Government to continue providing information on the number of complaints for anti-union discrimination, the average duration of the proceedings and the outcome of these proceedings. The Committee notes that the Government states as follows: (1) section 38 of the Labour Code contains the obligation to consult with the trade union concerned before the termination of an employment contract; (2) section 18 of the Labour Code stipulates the principle of non-discrimination in employment on grounds of trade union membership and provides for compensation for damages incurred; (3) section 45(1) stipulates that in the event of an unjustified termination of the employment relationship the employee may demand reinstatement with the same conditions as before; (4) freedom of association is protected under article 59(1) of the Constitution and any violation of this right is subject to criminal liability (section 218(1) of the Penal Code and section 35(1) of the 1991 Act on trade unions).

The Committee also notes the Government’s information on the following: (1) in 2010, there were 244 complaints lodged for the violation of the principle of special protection for members of trade unions; 20 per cent of the cases were dismissed; 15 per cent were discontinued due to a settlement or withdrawal of the claim; and, to date, only two cases are pending before the judicial authority; (2) as regards the allegation of the excessive length of proceedings in labour matters, out of 63,417 cases submitted to district courts in 2010, 47.4 per cent were completed within a period of three months and 72.5 per cent within six months; less than 10 per cent of the total number of cases were pending for more than 12 months and, of these, only 1.7 per cent of cases were pending for more than two years; (3) there were 35 cases of criminal proceedings related to the violation of the principle of association in 2010, of which 14 were pending in April 2011, 12 persons were convicted, two were acquitted and proceedings against eight people were discontinued. The Committee takes due note of all this information and emphasizes the high number of complaints concerning anti-union practices. The Committee requests the Government to submit in its next report statistics on the number of new cases concerning anti-union practices brought before the courts.

Compensation for anti-union dismissal. The Committee had noted that, according to the ITUC, victims of anti-union dismissals could ask for reinstatement, but court proceedings could take up to two years. In this respect, the Committee notes the information provided by the Government, to which it referred in the previous paragraph, concerning the procedural deadlines for dealing with complaints for violations of trade union rights. Similarly, the Committee notes that the Government refers once again to a possible legislative reform that would introduce an amendment to the Code of Civil Procedure giving the judicial authority the possibility, in cases of termination of an employment relationship in which there are allegations of anti-union discrimination, of granting the right for the persons concerned to remain in their jobs during the proceedings. The Committee requests the Government to provide information in its next report of any initiative to amend the legislation in this respect.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 6 September 2010 alleging inefficiency of anti-union discrimination legal protection, and cases of intimidation of trade unionists and anti-union harassment, as well as referring to the issues raised by the Committee below. The Committee notes the Government’s reply thereon.

Article 1 of the Convention. Protection against anti-union discrimination. In its previous observation, the Committee had noted the allegations of inefficiency of the proceedings and sanctions established in the legislation, and also noted the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos 2395 and 2474 (see 353rd Report) concerning excessive delay in processing cases of anti-union discrimination. The Committee had requested the Government to continue providing information on the number of complaints for anti-union discrimination, the average duration of the proceedings and the outcomes of these proceedings.

The Committee notes the statistics of the State Labour Inspectorate provided by the Government on the number of complaints of anti-union discrimination; a total amount of 108 complaints have been received between 1 January 2008 and 6 June 2010 (most of them were considered founded or partially founded). The Committee further notes the Government’s indication that, between 2008 and 2010, there was no conviction under section 35(3) of the Act on Trade Unions providing that “any person, who in connection with his/her position or function held, discriminates against an employee because of his/her membership in the trade union, non-membership in the trade union, or holding a trade union function, shall be liable to a fine or imprisonment”. The Committee expresses its concern about the non-application of the legal sanctions. The Committee urges the Government to take the necessary measures to ensure effective application of the legal sanctions for all cases of anti-union discrimination and requests the Government to continue providing information on the number of complaints for anti-union discrimination, as well as on the average duration of the proceedings and their outcomes.

Moreover, the Committee recalls that it had previously requested the Government to evaluate the results of the Labour Code amendments of 2008 in consultation with the social partners and to indicate any measures taken or contemplated to ensure that trade union officials and members have in practice the right to prompt and effective remedy by the competent national tribunals against acts of anti-union discrimination. The Committee had also requested the Government to keep it informed of the developments regarding the adoption of the amendments to the Code of Civil Procedure. The Committee notes the Government’s indication that no changes had been made in civil procedure to expedite legal proceedings concerning acts of anti-union discrimination against trade union activists. The Government indicates, however, that one of the means to reduce excessive length of the proceedings is the supervisory action by the Minister of Justice with regard to the activities of presidents of district and appeal courts. The Government also refers to other measures such as the draft Act amending the Law on Common Courts which provides for the periodic assessments of judges’ work. The Committee also notes that the Government states that it is worth to consider establishing new measures in the Code of Civil Procedure that would grant the right for trade union activists not to be dismissed until the proceedings in the Labour Court are completed. The Committee welcomes this information and requests the Government to continue providing information on the measures taken or envisaged to ensure that trade union officials and members have in practice the right to prompt and effective protection by the competent national tribunals against acts of anti-union discrimination.

Compensation for anti-union dismissal. The Committee notes that, according to ITUC, victims of anti-union dismissals can ask for reinstatement, but court proceedings can take up to two years; moreover, the courts are increasingly awarding just a three-month salary as compensation in lieu of reinstatement, regardless of how long the activist has been out of work. The Committee notes that the Government confirms that according to section 47 of the Labour Code, the compensation provided for an illegal dismissal of a trade union activist is limited to a maximum equivalent of a three-month salary. The Committee considers that the length of compensation proceedings is excessive and that the amount of compensation in cases of anti-union discrimination is insufficient, and therefore has no dissuasive nature. The Committee requests the Government to take the necessary measures to ensure the effective implementation of the means of full compensation of dismissed workers because of their trade union affiliation or activities.

Article 4. Collective bargaining rights. The Committee had previously requested the Government to provide information on the 2008 ITUC’s comments concerning alleged instances of employers’ refusal to negotiate collective agreements or to comply with them. The Committee notes the Government’s indication that no instances of employers’ refusal to negotiate collective agreements had been reported to the Minister of Labour acting as the registration authority for collective agreements under the national legislation.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s detailed report in reply to the previous comments of the International Trade Union Confederation (ITUC) alleging several cases of anti-union discrimination, interference in trade union affairs and infringement of collective bargaining rights.

Article 1 of the Convention. Insufficient protection against anti-union discrimination. The Committee had requested the Government to give consideration, in full consultation with the social partners concerned, to the establishment of prompt and impartial procedures, in order to ensure that trade union officials and members have the right to an effective remedy by the competent national tribunals for acts of anti-union discrimination. The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos 2395 and 2474 (see 349th Report) concerning excessive delay in processing cases of anti union discrimination. In this regard, the Committee notes from the Government’s report that this issue has been discussed in the Tripartite Commission. According to the Government, a draft amendment of the Code of Civil Procedure contains rules aiming to facilitate access for parties to proceedings. Moreover, the Labour Code has been amended through an Act of 9 May 2008.

In this regard, the Committee notes that the Government recalls that a number of acts of anti union discrimination constitute offences which involve penal sanctions and proceedings which could be referred, if necessary, to a simplified procedure; moreover, cases of undue delay allow the authorities to take appropriate legal measures, including the granting of an appropriate sum of money. The Committee notes that the 2008 ITUC comments concerning the excessive delays of the proceedings and stating that often the judicial orders for reinstatement of trade unionists are ignored by employers.

The Committee concludes that in practice the proceedings need to be more prompt and efficient. Thus, the Committee requests the Government to evaluate the results of the amendments to the Labour Code, in 2008, and the draft Code of civil procedure in consultation with the social partners and to indicate in its next report any measures taken or contemplated to ensure that trade union officials and members have in practice the right to prompt and effective remedy by the competent national tribunals against acts of anti-union discrimination. The Committee requests the Government to continue providing information on the number of complaints for anti-union discrimination, the average duration of the proceedings and the outcomes of these proceedings. The Committee will examine the amended Labour Code and the draft of the Code of civil procedure, once a translation becomes available.

Article 4. Infringement of collective bargaining rights. The Committee requests the Government to provide information on the 2008 ITUC comments regarding alleged instances of employers’ refusal to negotiate collective agreements or to comply with them. In this regard, the Committee takes note of the Government’s statement according to which the duty of the parties to conduct negotiations is not accompanied by sanctions; the Minister of Labour has urged the social partners to take measures that would activate an autonomous dialogue, in view of the Act on the Tripartite Commission, and encouraged them to use collective agreements more openly.

The Committee notes the statistics provided by the Government on the collective agreements and protocols registered, as well as the 12 cases of complaints concerning employers’ refusal to negotiate in 2006 and 2007 (most of them were solved due to the interventions of the labour inspectors). The Committee invites the Government and the social partners to indicate the measures taken or contemplated to resolve cases of refusal to bargain so as to promote collective bargaining.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee notes the information sent by the Government in reply to the previous comments of the International Confederation of Free Trade Unions (ICFTU) alleging several cases of anti-union discrimination, interference in trade union affairs and infringement of collective bargaining rights in practice in the public and private sectors.

The Committee recalls that the ICFTU comments related to the following specific issues.

1. Application of the Convention. The ICFTU alleged that many workers in state-owned enterprises in the health sector, water and forestry industries have had their employment contracts terminated and replaced by individual contracts. Consequently, such workers could no longer be trade union members and enjoy guarantees afforded by the Convention. Furthermore, according to the ICFTU, a fast growing trend was to fire employees and to hire them back as self-employed because such workers were not covered by collective agreements. Such practices were particularly prevalent in the transport, construction and public sectors.

The Committee notes the Government’s statement to the effect that, contrary to the ICFTU’s allegation, in the health sector, the regulations in force do not allow a simple replacement of an employment contract with a civil law contract. Pursuant to article 22(1) of the Labour Code, it is prohibited to replace an employment contract with a civil law contract, if the terms of job performance characteristics of an employment relationship are met. Thus, if an individual, being the former employee, is bound by a civil law contract with the former employer while performing work he or she performed previously under the employment contract and under the same conditions (same place and time of job performance, as well as the use of employer’s equipment), such situations should be treated as false self-employment.

2. Insufficient protection against anti-union discrimination. The ICFTU alleged that, while anti-union discrimination was prohibited under the current legislation, in practice Article 1 of the Convention was often violated. In particular, it alleged numerous cases where trade union members and officials were compelled to leave the union, transferred, dismissed or were paid less than other employees and did not receive bonuses granted to other colleagues. The ICFTU states that, according to the national labour inspectorate, the number of violations related to trade union rights was constantly increasing; the most frequent violations were changes in or the termination of labour contracts of trade union activists and their transfer to other positions. Furthermore, under the Labour Code, trade union officials were not sufficiently protected. The number of union officials protected from dismissal depended on the size of the union membership. In some instances, only one trade union representative could be protected from dismissal. Finally, while workers who had been summarily dismissed on disciplinary grounds were allowed to turn to labour courts, such procedures were long. In cases of unfair dismissal, it was often difficult to ensure reinstatement. Even when courts ordered reinstatement, such orders were often ignored by employers.

The Committee notes the Government’s statement that the legislation in force (Constitution, Labour Code and the Law on trade unions) prohibits anti-union discrimination against trade union leaders and members. With regard to trade union officials, the Government indicates that they cannot be dismissed or their conditions of work changed without an agreement of the union. This protection is afforded for the period of time specified in the resolution of the board of a trade union and, after that period, for an additional period corresponding to half of the period specified by the resolution, however, not longer than one year. The number of trade union leaders covered by the protection depends on whether the organization holds the status of a representative organization. For a representative trade union organization, the number of leaders covered by special protection depends on the number of trade union members. If a trade union does not hold the status of a representative organization, one employee indicated by this organization is protected. Protection also covers members of the founding committee of the trade union (not more than three persons) specified by a resolution of the founding committee. If no list of protected persons is provided by the union, the protection is granted to the chairperson of the union or the chairperson of its founding committee. The Government further indicates that a person whose rights were infringed has the right to be compensated. The minimum amount of compensation shall not be lower than the minimum wage/salary; the upper limit of compensation has not been fixed. Moreover, in cases of anti-union discrimination, the reinstatement, without loss of wages, shall be ordered by the court. With regard to the compliance with court orders of reinstatement, the Government indicates that the competence to verify whether an employer has complied with the decision lies with labour inspectors. Non-implementation of the court decision is a violation of workers’ rights and could potentially constitute a criminal offence under the Penal Code. If a labour inspector establishes such a violation, legal measures could be taken against the employer (fine, prosecution, etc).

While noting the explanations provided by the Government, the Committee regrets that no information was provided by the Government in respect of the specific alleged cases of anti-union discrimination (transfers, dismissals, etc.).

The Committee wishes to refer to the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos 2395 (see 344th Report, paragraph 191). It recalls its previous direct request wherein the Committee requested the Government to take all necessary measures, in consultation with the most representative employers’ and workers’ organizations, with a view to establishing procedures that are prompt, impartial and considered as such by the parties concerned, in order to ensure that trade union officials and members have the right to an effective remedy by the competent authorities for acts of anti-union discrimination. The Committee notes with regret that the Government merely reiterates its previous position according to which the legislation in force sufficiently protects the interests of trade union members and leaders against unjustified termination of employment and discrimination on account of trade union membership. The Committee once again recalls that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by speedy procedures to ensure that effective protection against such acts is guaranteed. The Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. The Committee observes that in the particular circumstances of this case, although the possibility to have recourse to penal procedures against those responsible for acts of anti-union discrimination would appear at first sight as a guarantee of protection, in the absence of appropriate institutional measures, the penal procedures might prove to be overly lengthy and complicated, precisely because of their penal nature; in such a case, the effective protection of workers is obstructed in practice.

The Committee notes the Government’s statement that, within the framework of the reform of the judiciary, several proposals to amend the Code of Civil Procedure were prepared to simplify the procedure, to shorten the proceedings and to increase efficiency of the judiciary. The reform will also concern the procedure in the field of labour law. The Committee therefore once again requests the Government to give consideration, in full consultation with the social partners concerned, to the establishment of prompt and impartial procedures, in order to ensure that trade union officials and members have the right to an effective remedy by the competent national tribunals for acts of anti-union discrimination and to keep it informed in this respect.

3. Violation of collective bargaining rights. The ICFTU alleged instances of employers’ refusal to negotiate collective agreements or to comply with them. The Committee observes that the Government failed to provide its observations thereon. It therefore once again requests the Government to provide information on the ICFTU comments.

Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

The Committee takes note of the information provided in the Government’s report.

In a request addressed directly to the Government, the Committee raises issues of protection against acts of anti-union discrimination in practice and requests the Government to give consideration, in full consultation with the social partners concerned, to the establishment of prompt and impartial procedures, in order to ensure that trade union officials and members have the right to an effective remedy by the competent national tribunals for acts of anti-union discrimination.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) in communications dated 31 August 2005 and 10 August 2006 concerning the application of the Convention as well as the Government’s reply. The Committee requests the Government to send specific observations on the ICFTU comments relating to several cases of anti-union discrimination and infringement of collective bargaining rights in practice in the public and private sectors.

The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Cases Nos. 2291 (see 333rd Report, paragraphs 878-919) and 2395 (see 337th Report, paragraphs 1150-1201), both concerning allegations of anti-union discrimination. It appears from these cases that legal provisions prohibiting acts of anti-union discrimination are not accompanied by effective and rapid procedures to ensure their application in practice with respect to workers who are not workers’ representatives. Therefore, the Committee requests the Government to take all necessary measures as soon as possible, in consultation with the most representative employers’ and workers’ organizations, with a view to establishing procedures that are prompt, impartial and considered as such by the parties concerned, in order to ensure that trade union officials and members have the right to an effective remedy by the competent authorities for acts of anti-union discrimination, and to keep it informed of developments in this respect.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the comments made by the International Confederation of Free Trade Unions (ICFTU) in a communication dated 31 August 2005 concerning the application of the Convention. The Committee notes that the comments relate to several cases of anti-union discrimination and violations of collective bargaining rights. The Committee requests the Government to provide with its next report its observations thereon.

Direct Request (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the comments made by the National Trade Union of Nurses and Midwives and the Trade Union of Medical Analytic Technicians on the application of Article 1 of the Convention and requests the Government to provide its observations thereon.

Articles 1 and 2. Protection against acts of anti-union discrimination at the time of recruitment and during the course of employment and against acts of interference. The Committee had previously noted the Government’s statement to the effect that sanctions incurred for acts of anti-union discrimination and interference are governed by the Penal Code and not the Act of 23 May 1991. The Committee once again asks the Government to specify what sanctions can be imposed in these instances and to forward the text of the pertinent sections of the Penal Code.

Direct Request (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee notes the Government's report.

Articles 1 and 2. Protection against acts of anti-union discrimination at the time of recruitment and during the course of employment and against acts of interference. The Committee notes the Government's statement to the effect that sanctions incurred for acts of anti-union discrimination and interference are governed by the Penal Code and not the Act of 23 May 1991. The Committee requests the Government to specify the sanctions which can be imposed in these instances and the pertinent sections of the Penal Code.

Article 4. The Committee notes the Government's response to its comments and its statement to the effect that during the period covered by the report, 52 collective agreements covering remuneration, conditions of work and trade union rights were concluded in sectors outside the scope of the establishment collective agreement, such as the state budgetary sector.

Observation (CEACR) - adopted 1997, published 86th ILC session (1998)

The Committee notes the Government's report.

With reference to its previous comments on the effective and dissuasive nature of measures to be taken to ensure adequate protection against acts of anti-union discrimination both at the time of taking up employment and in the course of employment, and against acts of interference by employers in workers' trade union activities, the Committee observes that the Government has indicated that the present fixed-amount fines (section 35 of the Act of 23 May 1991, which established a maximum fine of 50,000 zlotys) still remained in force. The Committee recalls that to ensure the practical application of Articles 1 and 2 of the Convention, national legislation must establish sufficiently dissuasive sanctions against acts of anti-union discrimination and acts of interference by employers in workers' trade union activities. In these circumstances, the Committee requests the Government to take measures in the near future to bring its legislation into conformity with the requirements of the Convention.

Concerning its previous comments on the refusal to approve collective agreements (section 241 of Chapter XI of the Labour Code), the Committee takes due note that the Government has indicated in its report that some refusals took place by reasons of procedural infringements but not for restrictive reasons.

With regard to the Committee's previous comments concerning section 241 of the Labour Code providing that an enterprise collective agreement may be concluded for workers, with the exception of workers employed in the state budgetary sphere, the Government has indicated that in the light of section 241 of the Labour Code, an establishment collective agreement could not be concluded by employees of the budgetary sphere, who were employees of units for which resources available for wages were being determined on the basis of the Act of 23 December 1994 which controls the allocation of resources for wages in the state budgetary sphere. Moreover, the Government states that on the basis of this Act, the resources for wages not only of civil servants but also for other employees' groups (for example, medical practitioners employed in state public health protection institutions) were determined. Employers were, therefore, deprived in these spheres, of the right to determine the amount of financial resources, including means for wages. However, the Government indicates that the Labour Code provisions allow the employees of the state budgetary sphere to conclude supra-establishment collective agreements (section 241). The Committee takes note of the Government's information and requests it to provide detailed information concerning the scope, content and implementation of supra-establishment collective agreements concluded during the period covered by the report.

Direct Request (CEACR) - adopted 1995, published 83rd ILC session (1996)

The Committee notes the Government's report.

Articles 1, 2 and 3 of the Convention. With reference to its previous comments on the effective and dissuasive nature of measures to be taken to ensure adequate protection against acts of anti-union discrimination both at the time of taking up employment and in the course of employment, and against acts of interference by employers in workers' trade union activities, the Committee once again requests the Government to indicate in its next report whether the present system of fixed-amount fines has been replaced by a system of variable-amount fines (penalties) determined on a daily basis taking account of the seriousness of the offence and the offenders' income as the Government stated in a previous report.

Article 4. Recalling that approval of collective agreements is compatible with Article 4 provided that it may be refused only on the grounds of a procedural flaw or failure to conform to the minimum standards laid down by general labour legislation, the Committee requests the Government to indicate whether in practice during the period covered by the report the Minister of Labour or the Labour Inspector have refused to register a collective agreement and, if so, to indicate in what circumstances and in what sector (section 24111 of Chapter XI of the Labour Code, 1994).

Articles 4 and 6. Stressing that under the Convention only public servants engaged in the administration of the State may be excluded from the scope of the Convention, the Committee requests the Government to supply detailed information on the scope of section 24122 of the Code which provides that an enterprise collective agreement may be concluded for workers, with the exception of workers employed in the state budgetary sphere. The Committee recalls that it has always established a distinction between, on the one hand, officials whose activities involve essentially administration of the State (officials in the ministries of government bodies and their subsidiaries) who may be excluded from the scope of the Convention and, on the other, all other persons employed by the Government, public enterprises and public institutions (teachers, postal workers, railway workers in particular) who should be able to enjoy the guarantees of the Convention.

Observation (CEACR) - adopted 1994, published 81st ILC session (1994)

The Committee takes note of the Government's report and its reply to the observations made by NSZZ "Solidarnosc".

The Committee recalls that in its previous communications, the NSZZ "Solidarnosc" considered that the sanction for acts of anti-trade union discrimination and acts of interference in trade union activities, provided for in the Trade Union Act of 23 May 1991, was only a fine of up to 50,000 zlotys (section 35), was not sufficiently effective and dissuasive to guarantee adequate protection as laid down in the Convention (Articles 1, 2 and 3 of the Convention).

The Government indicates in its report that the NSZZ's proposal to punish acts of anti-union discrimination and interference in trade union activities by imprisonment of up to three years and deprivation of the right to hold a managerial post was not approved by Parliament when it debated the Trade Union Bill. The Government explains that the introduction of penal sanctions for such acts would mean introducing similar penalties for illegal trade union activities, including participating in illegal strikes, which would considerably impair the legal situation of unionized workers. It points out, however, that the offences mentioned in the Trade Union Act of 23 May 1991 are subject to fines of from 500,000 to 2,500,000 zlotys under the Code. It adds that when the Trade Union Act is amended it plans to examine the possibility of replacing the present system of fixed-amount fines by a system of variable-amount fines to be reckoned on a daily basis taking account of the seriousness of the offence and the offender's income.

The Committee notes this information with interest and asks the Government to keep it informed of any further developments in this respect.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the Government's report and the coming into force of the Acts of 23 May 1991 concerning trade unions, employers' organisations and the settlement of collective labour disputes.

The Committee notes that, in accordance with section 27 of the new Act concerning the settlement of collective labour disputes, which amends section 214(7)(7), of the Labour Code, the procedures governing negotiation, mediation, arbitration and strikes are suspended during the registration procedure of a collective agreement or during the procedure embarked upon under the terms of section 241(7)(3) and (4) where the Minister is of the opinion that the collective agreement is incompatible with the law. It recalls that legislation which permits the refusal of approval of a collective agreement on grounds other than errors of pure form may amount to a requirement that prior approval be obtained before a collective agreement can come into force, which is not in conformity with the principles of voluntary negotiation established in Article 4 of the Convention. It also considers that the suspension of procedures intended to promote the settlement of a collective dispute during the registration of a collective agreement or during a dispute relating to the compatibility of the collective agreement with the law does not appear to promote independent and voluntary collective bargaining. It therefore requests the Government to indicate whether, in the period covered by the report, the above section of the amended Labour Code has been applied in practice.

The Committee notes moreover that section 30(5) of the Act of 23 May 1991 concerning trade unions provides that, if in matters relating to the drawing up of work rules, work schedules or the leave plan, the trade union organisations do not present a joint position within 30 days, the employer or the appropriate workers' self-governing body shall render a decision after examining the positions of the different trade union organisations. The Committee points out that the application of this provision in practice would be likely to result in a cessation of negotiations on the questions of work rules, work schedules or the leave plan either through a unilateral decision by the employer, or because the trade union organisations are not in a position to present a joint position on these matters, and it therefore requests the Government to supply information in its next report on the effect given to this provision in practice.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the Government's report, the coming into force of the Acts of 23 May 1991 concerning trade unions, employers' organisations and the settlement of collective labour disputes, as well as the comments of NSZZ "Solidarity" on the effect given in practice to the Convention.

1. In particular, the Committee notes with satisfaction that section 30(6) of the new Act concerning trade unions no longer empowers the employer, to make a unilateral decision concerning the conclusion or modification of a works collective agreement in the event that the trade union organisations have not reached an agreed position.

2. Article 1 of the Convention. The Committee notes the comments of NSZZ "Solidarity" to the effect that the only sanction for acts of anti-union discrimination and interference in trade union activities set out in the Act of 23 May 1991, consisting of a fine of up to 50,000 zlotys (section 35), is not of a sufficiently effective and dissuasive nature to guarantee the adequate protection provided for in the Convention. It requests the Government to respond to these comments.

In view of the fact that the Government has not yet had the time to respond to the comments of the NSZZ "Solidarity", the Committee will deal with these specific questions at its next Session, when it has received the Government's comments.

3. The Committee is also making a direct request concerning the Acts of 23 May 1991 concerning trade unions and the settlement of collective labour disputes.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

With reference to its previous observation, the Committee takes note with satisfaction of the detailed information supplied by the Government concerning the activities of the State Conciliatory Commission responsible for examining the status of persons dismissed for trade union activities.

It also notes that, during the period covered by the Government's report, the authorities have not refused the registration of any collective agreements under section 241/7 of the Labour Code.

The Committee requests the Government to continue to supply information on the application, in practice, of this provision.

Direct Request (CEACR) - adopted 1990, published 77th ILC session (1990)

Article 4 of the Convention

The Committee takes note of Act No. 105 of 7 April 1989 to amend the Trade Union Act, 1982, and notes that in section 371(1) and (2) it provides that the various trade unions in an enterprise, before any bargaining with the management of the enterprise, should conclude an agreement setting out a common position for their claims. In the absence of such an agreement, the management is authorised, after consulting the trade unions and the workers, to take a decision concerning terms and conditions of work, with the exception of matters relating to remuneration systems, incentives, bonuses and the social and housing funds.

Although it appears that the objective of these provisions is to promote equal treatment between trade unions in the same enterprise as regards collective bargaining, their application is liable to result in negotiations being blocked either by a unilateral decision by the management on certain matters, or because the social partners are unable to set out a common position as regards wages.

In these circumstances, the Committee requests the Government to supply information on the effect given to these provisions in practice.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes the information supplied by the Government to the Conference Committee on the Application of Standards in 1989 contained in its last reports.

1. In its previous observation, the Committee expressed the hope that, within the framework of the discussions taking place in the Round Table committee responsible for matters relating to freedom of association, solutions could be found regarding the persons who had been prejudiced due to trade union activities.

The Committee therefore notes with satisfaction the adoption of the Amnesty Act No. 179 of 29 May 1989, which completely annuls convictions on grounds of strikes or other protest actions which occurred after 31 August 1980.

It also notes with satisfaction that, under the terms of Act No. 172 of 24 May 1989, as amended on 7 December 1989, all persons, including secondary school teachers and university professors who were dismissed for trade union activities, will be able to apply for reinstatement to their former workplace until 30 June 1990, and that in the event of the refusal of their application by their employer, they could apply to the Conciliatory Commission, which is empowered to order their reinstatement in the event of dismissal for trade union activities. In addition, they may regain the rights which attach to their status as wage earners.

The Committee notes the Government's statement to the effect that any person dismissed for trade union activities should find a job, either in their former workplace or elsewhere, and that this matter is directly related to the need to provide adequate protection against acts of anti-union discrimination, as set out in the Convention.

In this respect, the Committee notes that, according to the Government's most recent report, the Act of 29 December 1989 on employment assures equality of treatment between all jobseekers whatever the political or social organisations they belong to.

The Committee requests the Government to continue supplying information on the situation of persons who were dismissed for trade union activities and on the measures that it intends to take to strengthen the legislation and protective procedures for workers against acts of anti-union discrimination, including the adoption of sufficiently dissuasive civil and penal sanctions.

2. In its previous observation, the Committee noted the adoption of Act No. 134 of 17 June 1988, under which the registration of agreements concerning wage rates concluded at the enterprise level and of enterprise agreements negotiated on the basis of a national or branch agreement is no longer obligatory. It requested information on the effect of this Act on the restrictive provisions respecting the registration of collective agreements contained in the Labour Code (section 2417).

In its report, the Government states that by virtue of Act No. 134 of 17 June 1988, the registration of agreements concluded at the enterprise level is no longer compulsory and that the agreements come into force on the date set out in the agreement. It also indicates that collective agreements are registered by the Ministry of Labour and Social Policy, which confines itself to examining whether they are in conformity with the law and the social and economic policy of the State, but that it is no longer compulsory to examine the content of the agreement with the Minister of Labour as used to be the case. Finally, it states that the Labour Code establishes machinery for the settlement of disputes when the Minister considers that the agreement prejudices the law and the social and economic policy of the State.

It appears from this information that, although agreements concluded at the enterprise level are not subject to the registration procedure, collective agreements negotiated at the national or branch levels must be registered in accordance with section 2417 of the Code, and that registration may be refused in the event of divergencies with the social and economic policy of the State.

The Committee draws the Government's attention to the fact that a system of official approval is acceptable only in so far as the approval can be refused on grounds of form and where the clauses of a collective agreement do not conform to the minimum standards set out in the labour law.

It would not therefore be compatible with the Convention for the public authorities to be able, through this machinery, to modify the content of freely concluded collective agreements. However, if, for social and economic reasons, it is found necessary for conditions of employment and wages to be adapted to the Government's economic policy, it would be desirable, through tripartite consultation machinery, to associate the social partners with this policy so that they could have regard to it voluntarily in their negotiations.

The Committee therefore requests the Government to supply information on the effect given in practice to section 2417 of the Code and to indicate the circumstances in which the public authorities may have refused to register collective agreements.

The Committee is addressing a request directly to the Government on another point.