Report in which the committee requests to be kept informed of development - Report No 357, June 2010

Case No 2748 (Poland) - Complaint date: 07-DEC-09 - Closed

Allegations: The complainant organization alleges acts of anti-union discrimination by the employer, including: harassment and unlawful dismissal of the union shop steward, interfering with and obstructing the trade union’s meetings and activities, and the misappropriation of the trade union’s property

1. 1011. The complaint is contained in a communication from the Independent Self-Governing Trade Union “Solidarnosc” (NSZZ “Solidarnosc”) dated 7 December 2009 (initially dated April 2008).
2. 1012. The Government forwarded its response to the allegations in a communication dated 18 February 2010.
3. 1013. Poland has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), as well as the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 1014. In a communication dated 7 December 2009, the complainant organization NSZZ “Solidarnosc” raises the following issues: unlawful dismissal of the NSZZ “Solidarnosc” shop steward; intimidation of the shop steward (criminal allegations, not recognized by the Court); interference with trade union activities (non-recognition of the NSZZ “Solidarnosc” shop steward); hampering organization of trade union meeting; discrimination of trade union (moving of the NSZZ “Solidarnosc” union offices from the site); misappropriation of trade union property (union flags).
2. 1015. The complainant organization indicates that the incidents described below took place against the background of an ongoing collective dispute (since 2002) between the employer and the trade unions on irregularities connected with the enterprise social benefit fund. According to the complainant, the position of the trade union was confirmed by an inspection performed by the National Labour Inspectorate (NLI). On 2 April 2005, the mediation undertaken by the Ministry of Labour failed, and the issue of the social fund went to the District Court VII, Labour Department in Wroclaw, file No. VII P 5635/05. The value of the claim for 2006 exceeded 2,600,000 Zlotych (PLN) (roughly €740,000), which demonstrates the importance of the problem. On 13 March 2007, the Regional Court VII Wydzial Pracy [Labour Department] rendered a judgement in the case ordering the defendant PZ Cussons Polska SA to pay back the amount of PLN1,063,433.21 to the account of the enterprise social benefit fund.
3. 1016. The complainant organization indicates that, in May 2003, as a result of the prolonged collective dispute, the NSZZ “Solidarnosc” flew trade union banners and flags which were torn off by PZ Cussons Polska SA. The flags – property of the union – were misappropriated by the enterprise. The Public Prosecutor’s Office, to whom the offence was reported, saw nothing illicit in the activities of the enterprise. The Prosecutor’s Office claimed, among others, that “it was established that flags and banners have been returned to the aggrieved union”, which was not true, thus discontinuing legal proceedings referring to interference in trade union activities.
4. 1017. Furthermore, in August 2003, the enterprise transferred the union’s offices to a remote part of the city (approximately 8 km away from the company), under the pretext of refurbishment works. This location of the union quarters was a specific sanction for the trade union’s activities and was intended to impede contacts with the members. There were empty premises where the union had been located so far, which could have been made available to it. Upon being informed about the offence, the Prosecutor’s Office decided to discontinue the proceedings. Ever since, although refurbishment works have ended, the union has been unable to use the premises. At the same time, the premises of the other trade union in the enterprise (NSZZ Pracownikow PZ Cussons Polska SA – OPZZ) continued to be located on the site.
5. 1018. The complainant organization also indicates that, in June 2006, the enterprise once again violated the trade union and social benefits fund legislation. The union responded by stepping up the protest in progress since October 2005 and displaying more trade union flags. On 29 June 2006, the enterprise once again tore off the flags (property of the union) and tried to remove them from the enterprise by car. The whole event was witnessed by the Chairman of NSZZ “Solidarnosc” at PZ Cussons Polska SA, Mr Waclaw Pastuszka. He tried to stop the car in order to prevent the flags from being taken away. Security guards attempted to force him out, causing bruises and scratches, as a result of which he had to seek medical aid. To date, the flags removed by the enterprise from the premises have not been returned to the union.
6. 1019. On 29 June 2006, the enterprise notified the District Prosecutor’s Office for Wroclaw Krzyki Wschod about a criminal offence perpetuated by Mr Pastuszka, charging him with: organizing illegal trade union protest action; damaging the company vehicle; misappropriation of union flags; and threatening the representative of the enterprise, Leslaw Bos, to criminally harm him or his next of kin. Taking into account the absurdity of the charges, the complainant states that the institution of criminal proceedings against Mr Pastuszka was mainly intended as intimidation.
7. 1020. On Friday, 21 July 2006, 2.00 p.m., Mr Pastuszka was handed a notice addressed to the Enterprise Commission of NSZZ “Solidarnosc” with the information on intended termination of his employment on disciplinary grounds related to the June incident. The statutory period for the Enterprise Commission to take a stance is three days and expired on Monday, 24 July 2006. The complainant states that, due to the weekend, a realistic time for organizing a meeting of the Enterprise Commission was Monday. On the morning of 24 July, Mr Pastuszka requested leave on that very day to prepare the meeting of the Enterprise Commission and to seek legal advice at the Dolny Slask Regional Board of NSZZ “Solidarnosc”. The leave was granted. Having received legal advice from the Regional Board, Mr Pastuszka went back to the enterprise to arrange a board meeting but was refused admittance. His immediate superior informed him that the reason was allegedly the fact that he was on leave, although company regulations stipulate that chairmen of trade unions have the right to enter the premises of the company.
8. 1021. According to the complainant, since Mr Pastuszka was not allowed in, it was impossible to hold the meeting at the enterprise between the first and second shifts, which meant there was no statutory quorum. The employer refused to exempt Mr Damian Korniak (member of the NSZZ “Solidarnosc” Enterprise Commission working the second shift) from his normal duties to carry out an ad hoc trade union activity (attending the meeting). In order to get a quorum, it became necessary to call in a member of the NSZZ “Solidarnosc” Enterprise Commission returning from holiday that day and to find another venue for the meeting, which resulted in major delay and made it impossible for the Commission to clarify the circumstances of the incident on site. The meeting was finally held at about 7 p.m., and the NSZZ “Solidarnosc” Enterprise Commission adopted a resolution in which it did not express its consent to the termination of Mr Pastuszka’s employment under paragraph 52 of the Labour Code, as the reasons given by the employer did not give grounds for disciplinary job termination and Mr Pastuszka’s employment was subject to special protection because of his function as the Chairman of the Enterprise Commission of NSZZ “Solidarnosc” and of the Works Council.
9. 1022. On 27 July 2006, Mr Pastuszka was handed a disciplinary notice despite the lack of authorization for the notice from the part of the trade union organization, which is required by law. On 31 July 2006, a case for reinstatement of the dismissed trade union leader was filed with the District Court for Wroclaw-Srodmiescie Labour Court (file No. IV P 584/06).
10. 1023. On 31 July 2006, the Regional Board informed the Managing Board of PZ Cussons Polska SA in writing that under the existing laws, despite employment termination, Mr Pastuszka was still the Chairman of the Enterprise Commission of NSZZ “Solidarnosc” at PZ Cussons Polska SA and that the termination of his contract of employment and the mode of such termination were without prejudice to his rights within the enterprise union organization. The letter also said that according to company regulations, the Chairman of the trade union enjoyed the right of entering company premises, and any obstruction whatsoever in this respect would be an impediment to trade union activities, a criminal act under article 35 of the Trade Unions Act.
11. 1024. On 2 August 2006, the NSZZ “Solidarnosc” Regional Board notified the District Prosecutor’s Office for Wroclaw Krzyki Wschod about a criminal offence perpetrated by the Managing Board of PZ Cussons Polska SA, charging it with: (1) contravention of article 35(1)(ii) of the Polish Trade Unions Act by impeding trade union activities carried out by the enterprise union under the existing law; (2) contravention of article 35(1)(iii) of the Trade Unions Act by discrimination of workers (especially Waclaw Pastuszka) as to their trade union membership; and (3) contravention of article 218 of the Penal Code through the malicious and persistent infringement of the provisions of the labour laws, including the Trade Unions Act. On 29 November 2006, the District Prosecutor’s Office discontinued investigation of the case on grounds of the absence of illicit deed.
12. 1025. On 12 December 2006, a complaint was filed by the NSZZ “Solidarnosc” against the discontinuance of inquiry. On 9 February 2007, as far as the impediment of union activities is concerned, the Regional Public Prosecutor allowed the complaint, revoked the decision of the District Public Prosecutor and referred the case back to the District Public Prosecutor’s Office, which reinstated the inquiry about the issue under file No. 1 Ds. 585/07. As for the discrimination against Waclaw Pastuszka, the Regional Prosecutor decided not to allow the complaint, and the complaint was sent to the District Court Wroclaw Krzyki Wydzial II Karny [Criminal Department], which approved the decision as well-founded on 26 March 2007. The union gave up further claims in this regard and the decision became final.
13. 1026. On 13 March 2007, when rendering judgement in the case of file No. VII P 5635/05 concerning the enterprise social benefit fund, the Regional Court VII Wydzial Pracy [Labour Department] also gave its position on the issue of the representation of NSZZ “Solidarnosc”, stating that: “Despite the termination of employment of 27 July 2006, Waclaw Pastuszka is still authorized to represent the trade union ..., because under §5 of the Constitution of NSZZ “Solidarnosc” mentioned here, the loss of job does not mean the loss of membership rights. And then under the provisions of article 2, paragraph 4 of the abovementioned Trade Unions Act: the unemployed in the understanding of the provisions on employment maintain their right to trade union membership …”. The sentence is not yet legally valid as both parties appealed against it.
14. 1027. On 25 July 2007, the NSZZ “Solidarnosc” Regional Board received the decision of the District Prosecutor’s Office for Wroclaw Krzyki Wschod of 21 December 2006 to discontinue the inquiry in the case of file No. 1 Ds. 1282/06 initiated against Waclaw Pastuszka. The District Prosecutor’s Office stated that the protest action carried out by the union consisting of flying flags was carried out in conformity with the law, that Mr Pastuszka did not damage the company vehicle, that he did not misappropriate trade union flags from the vehicle because the flags were union property and Mr Pastuszka represented their owner, and that he did not threaten Mr Leslaw Bos to criminally harm him or his next of kin.
15. 1028. On 13 July 2007, the NSZZ “Solidarnosc” Regional Board received the decision of the District Prosecutor’s Office for Wroclaw Krzyki Wschod of 28 June 2007. After reinstatement of the inquiry in relation to the impeding of trade union activities, the District Prosecutor’s Office once again did not find any attributes of a prohibited act in the employer’s actions, thus deciding to discontinue proceedings in the case of file No. 1 Ds. 585/07. On 20 July 2007, the NSZZ “Solidarnosc” once again lodged a complaint with the Regional Prosecutor against the decision to discontinue the inquiry, charging the District Public Prosecutor’s Office with non-exercise of due diligence in establishing the facts and the circumstances of the case.
16. 1029. As regards the moving of the trade union’s offices, the NSZZ “Solidarnosc” indicates that the Prosecutor merely stated that, since the employer suggested another location, there was no infringement on the provisions of the law in this respect. The complainant organization denounces that the Prosecutor failed to consider or determine the following: that the NSZZ “Solidarnosc” was deprived of its premises in Krakowska Street in 2003 under a pretext of refurbishment, and although refurbishment works have ended, the trade union has been unable to use the premises ever since; when the refurbishment works really started and ended; whether there have been any premises in Krakowska Street that could have been made available to the union and whether there was another possible solution for meeting this obligation by the employer (e.g. joint use of the premises by both trade unions operating in the company); why, after refurbishment, the union did not return to the premises used by it before 2003; whether there were really objective reasons for offering the union the premises in Dlugosza Street; that the employer had and still has vacant space in Krakowska Street and that the other union, NSZZ Pracownikow PZ Cussons Polska SA – OPZZ, has been using the rooms in Krakowska Street all the time; that the vast majority of members of NSZZ “Solidarnosc” work in Krakowska Street; and, finally that, in the company’s bulletin, the President of the company calls the decrease in union membership a success, and says “the largest trade union (i.e. NSZZ “Solidarnosc”) no longer needs a full-time chairman.” The complainant concludes that transferring its offices to a place 8 km away from the employer’s seat impeded trade union activities.
17. 1030. As regards the prevention of the NSZZ “Solidarnosc” from holding a meeting on 24 July 2006 and barring the admittance of the Chairman of the NSZZ “Solidarnosc” Enterprise Commission onto company premises, the complainant condemns that the Public Prosecutor’s Office carried out the investigation in a negligent way, without clarifying and considering all the circumstances of the case. It particularly blames the Office for not hearing the witness Slawomir Poswistak, the union’s legal adviser, in connection with the events, even though it was motioned when the offence was reported and the evidence could have been instrumental. In its view, the Prosecutor erroneously decided that the evidence was not significant enough to have an explicit effect on the functioning of the trade union organization. Also, the findings that there were no obstacles to getting a quorum necessary for taking a resolution were wrong. Organizing a rightful meeting took numerous additional activities from the Chairman and other members of the NSZZ “Solidarnosc” Enterprise Commission, such as inviting and waiting for the arrival of a member returning from holiday, finding a new venue, etc. As for refusing admittance to Mr Pastuszka on 24 July 2006, the Prosecutor allegedly ignored the fact that the employer infringed not only the Trade Unions Act but also the company regulations, according to which the chairpersons of trade unions have the right to enter the company’s premises. Contrary to the findings, refusal of admittance to the Chairman of the trade union was not a single incident, but a permanent practice of the employer; the Prosecutor’s Office was informed by letter of 20 June 2007 that on the very day Chairman Pastuszka arrived at the company in order to grant one of the members a statutory benefit, the employer refused to let him onto the company premises. The Regional Prosecutor was informed by letter of 1 August 2007 that on 26 July, when the meeting of the Presidium of the NSZZ “Solidarnosc” Enterprise Commission was planned to take place at the company’s seat in Krakowska Street, Mr Pastuszka was again not allowed to enter the premises, and the meeting was held at the gate, with Mr Pastuszka standing in the street and the other members within the confines of the company.
18. 1031. The complainant further indicates that, despite a properly lodged motion, first on 2 August 2006 and then on 2 July 2007, signed by Mr Pastuszka, to release Mr Mariusz Musialek from his normal duties (under article 32(1) and (2) of the Trade Unions Act) so that he could perform trade union duties, the employer refused to do so. Another example was the refusal to release members of the NSZZ “Solidarnosc” Enterprise Commission (under article 31(3) of the Trade Unions Act), without withholding their remuneration, so that they could perform current trade union duties such as the union meeting on 10 August 2006. The complainant considers that this is simply due to the fact that the motion was signed by Mr Pastuszka. Notwithstanding the ruling of the Regional Court VII Wydzial Pracy in Wroclaw of 13 March 2007 (file No. VII P 5635/05) stating that Waclaw Pastuszka had the right to represent the trade union organization in spite of termination of employment, the enterprise has kept challenging his right to represent the NSZZ “Solidarnosc”. The complainant condemns that the Prosecutor ignored the presented evidence, in particular the letters of 4 and 9 August 2006 addressed by the enterprise to the NSZZ “Solidarnosc”. Their contents allegedly show that the employer excessively interfered with the independence and self-governing of the union and illegitimately tried to decide who may become its chairman, who is authorized to receive mail or to sign letters on behalf of the NSZZ “Solidarnosc” Enterprise Commission, which is in breach not only of article 30 of the Constitution of the Polish Republic and article 1(2) of the Trade Unions Act but also of EU laws and ILO Conventions. According to the complainant, the following findings of the Prosecutor are inconsistent with the above facts of the case and not supported by any evidence: that the employer allegedly released union members from their normal duties at every request presented in due time; that the enterprise did not ignore the union’s position expressed in letters signed by Mr Pastuszka but only informed the union about its opinion on the issue of proper representation; that Mr Pastuszka’s right to represent the union has never been questioned by the employer; and that the dispute did not make it impossible to perform trade union activities. In the complainant’s view, the fact that, for over a year, the Chairman was not allowed to enter the company’s premises, and his deputy could not exercise the right to be released from his normal duties to carry out union activities, resulted in an obstruction of the activities of a union with 130 members. The Prosecutor also failed to notice that by refusing to release trade union activists from normal duties, the employer contravened stipulations of the existing law (see verdict of the Supreme Court of 6 June 2001 I PKN 460/00, Prok. i Pr. 2002/12/48).
19. 1032. As for the misappropriation of the trade union’s flags in June 2006, the complainant denounces that the Prosecutor carried out no investigation and improperly decided that the whole issue had already been assessed by the District Prosecutor’s Office (file No. 1 Ds. 1282/06). The District Prosecutor’s investigation, however, concerned the misappropriation of trade union flags by Waclaw Pastuszka from the company vehicle, as reported by the employer, and the Prosecutor had discontinued those proceedings since the flags were the property of the trade union and Mr Pastuszka represented their owner. In the complainant’s view, the issue of tearing off and misappropriation of union flags by the enterprise was not covered by the proceedings. The complainant further denounces that, in his decision (file No. Ds. 585/07), the Prosecutor excused the removal by the employer of the union flags stating that the employer wanted to report an alleged offence, and not to misappropriate the flags. According to article 308(1) of the Penal Code, securing evidence of an offence lies within the competence of the Prosecutor or the police, and not any third party. The complainant adds that the fact that the flags have never been returned to the union discloses the employer’s real intentions.
20. 1033. The complainant states that the above activities of the PZ Cussons Polska SA elicited no reaction on the part of the Polish Government or any public institution. The NSZZ “Solidarnosc” believes that the unlawful practices of interfering into the union’s affairs and obstructing its activities (the transfer of union offices, preventing NSZZ “Solidarnosc” organization from holding its meeting on 24 July 2006 and barring its Chairman from performing his union duties, as well as the seizure of union flags) were aimed at intimidating its members. This might drive the union out of the company, should membership drop below the statutory threshold.
21. 1034. The complainant adds that, in spite of the fact that in 2004 the Committee on Freedom of Association called on the Polish Government to “… secure the freedom of association and collective bargaining, especially through the recognition of trade unions and their protection against discrimination and interference”, the events described above demonstrated that exercising freedom of association is seriously impeded in Poland. It was particularly conspicuous with regard to non-discrimination and protection against unjustified dismissal, which must be ensured to union officials if they are to perform their fundamental obligation of fighting for the rights of the workers. The above also highlighted the lack of due diligence and the negligence of the Public Prosecutor’s Office in determining the facts of the case and considering all the evidence presented, and that the behaviour of the Managing Board of Cussons SA was characterized by permanence, persistence, malice and was still ongoing.
22. 1035. NSZZ “Solidarnosc” believes that the events described above, the anti-union climate in the enterprise, the hostile attitude to union activities and the discrimination practiced because of engagement in such activities are a major threat to the rights guaranteed by ILO Conventions Nos 87 and 98, and that the employer activities at PZ Cussons Polska SA are in serious violation of union rights and the principle of social dialogue. According to the complainant, it is of extreme importance that in the case of international corporations like PZ Cussons Polska SA, there should be no double standards for respecting workers’ rights and freedom of association on the basis of whether they are at home or in another country.
23. 1036. Finally, the complainant states that the problem of wilful and persistent discrimination against union members and officials should be extensively debated by the Tripartite Commission. The Government should encourage employers’ organizations to express clearly their position on enterprises operating in Poland in which union members and officials are discriminated against and attempts are made to drive the union out of the enterprise. The administrative and judicial mechanisms should be designed to prevent the law from being circumvented and to protect freedom of association.

B. The Government’s reply

1. 1037. In a communication dated 18 February 2010, the Government transmits the remarks of the Ministry of Justice on the specific charges raised by the NSZZ “Solidarnosc”.
2. 1038. Regarding the moving of the union’s offices, reference is made to proceedings with ref. No. Ds. 3838/04 initiated by way of written notification by Waclaw Pastuszka for the hindering of trade union activity in the period between August 2003–February 2004 through the allocation of premises for the trade union outside the principal establishment of the company, and the refusal of consent to a union meeting (article 35(1)(2) of the Trade Unions Act). The proceedings were discontinued on 5 March 2004 as the Act did not meet the legal definition of an offence. Following a complaint lodged by Mr Pastuszka, which was declared to be well-founded under article 463(1) of the Code of Penal Proceedings, the decision to discontinue proceedings was repealed. On 30 June 2004, the proceedings were discontinued again. Following another complaint, the decision to discontinue proceedings was upheld on 13 December 2004 by the Wroclaw-Krzyki District Court (II Kp 14/04), which stated that it did not discover any errors in legal evaluation or any formal defects.
3. 1039. The Government then refers to the proceedings with ref. No. Ds. 1691/06 initiated by the union on 2 August 2006 in reference to the following: (i) hindering trade union activity of the Enterprise Commission of NSZZ “Solidarnosc” at PZ Cussons Polska SA, conducted in the period between 2003 and 24 July 2006, in particular depriving union members of their seat located within the company premises, failure to grant Damian Korniak exemption from work in order to perform his union duties on 24 July 2006, and forcing the session of the NSZZ “Solidarnosc” Enterprise Commission to be held outside the establishment on that same day (article 35(1)(2) of the Trade Unions Act); and (ii) discrimination of Waclaw Pastuszka in the period between 21–27 July 2006 on account of his trade union membership and of his holding the function of Chairperson of the NSZZ “Solidarnosc” Enterprise Commission in Wroclaw, as well as malicious and permanent acts in breach of his rights (article 35(2)(3) of the Trade Unions Act and article 218(1) of the Penal Code in connection with article 11(2) of the Penal Code).
4. 1040. The proceedings were discontinued on 29 November 2006 for the following reasons: the NSZZ “Solidarnosc” Enterprise Commission was not deprived of its seat where meetings of trade union members could be held and the organization’s documentation stored, it was only allocated another room for that purpose; the issue of convenience when travelling to the allocated facilities can only be evaluated subjectively, and cannot be analysed in terms of penal law; furthermore, postponing the session of the NSZZ “Solidarnosc” Enterprise Commission for about two hours, inter alia due to the fact that the employer did not let Mr Pastuszka enter the premises during leave, did not suffice to conclude that it had an actual impact on trade union activity. The decision to discontinue proceedings was appealed against by Waclaw Pastuszka. On 9 February 2007, the Superior Prosecutor acknowledged the appeal as far as the issue of impediment of trade union activities was concerned and revoked the decision to discontinue proceedings in this respect because the complaint has described subsequent events (claim that after 24 July 2006, i.e. since his dismissal, Mr Pastuszka was not recognized as the Chairperson of the union by the enterprise board) that could have been a manifestation of hindering trade union activity (article 35(1)(2) of the Act on trade unions), and which had not been covered by the decision. As far as discrimination and breach of Mr Pastuszka’s rights were concerned, the appeal was refuted.
5. 1041. As regards the representation of the trade union organization by Waclaw Pastuszka, the proceedings with ref. No. I Ds. 585/07 sought to establish the reasons why the enterprise board would not recognize Waclaw Pastuszka as the Chairperson of the union after his employment contract had been terminated and, as a consequence, refused to acknowledge trade union letters he signed. The parties to the conflict entered into a dispute concerning the title of Waclaw Pastuszka to bring actions before the Court, and his authority to represent the trade union before the enterprise board. Nevertheless, the employer did not dispute the fact that the trade union organization operated in the establishment. Case files showed that representatives of the enterprise, whether correct or incorrect in their legal opinions, did not ignore certain proposals put forward by the trade union by failing to react; informed the trade union of their position by way of letters addressing individual issues; and mainly emphasized the problem of appropriate representation, and not of correctness of trade union position on the content of correspondence with PZ Cussons Polska SA, inter alia as regards exemption from the obligation to perform work by Mariusz Musialek, and appointing the Employee Council. The issue of appropriate representation was the subject of letters of 5 October and 22 November 2006 written by the enterprise and addressed to the Seventh Labour Division of Wroclaw Regional Court, and was eventually resolved by the ruling of 13 March 2007 (file ref. No. VII P 5635/05). The investigation on the above case was discontinued by decision of 28 June 2007 due to lack of data proving that the offence had been committed. The Prosecutor pointed out that a different view on a legal matter could not be regarded as a proof that a deliberate action had been taken aimed at hindering trade union activity. The above decision was appealed against by the aggrieved party. The appeal was not acknowledged by the Wroclaw-Krzyki District Court. The files of the said case were examined by the Wroclaw Regional Prosecutor’s Office, a unit superior to the Prosecutor’s Office, which conducted the proceedings. The Government states that the legitimacy of the decision was not questioned then and that there were no grounds to question it now, since the validity of decisions as to substance has undergone an appropriate inspection by a higher instance.
6. 1042. As concerns the misappropriation of union flags, the proceedings with ref. No. Ds. 854/04 were initiated by the union as regards the hindering of trade union activity in the enterprise in May 2003 by removing flags and posters used for the protest, i.e. an act under article 35(1)(2) of the Trade Unions Act. The proceedings were subsequently discontinued on 18 December 2003 and on 30 June 2004 as the Act did not meet the legal definition of an offence. Both decisions were repealed by the Wroclaw Regional Prosecutor’s Office who acknowledged the complaints filed by Waclaw Pastuszka (1 Dsn 30/04/Wr III). The proceedings were discontinued for the third time on 31 December 2004 (Ds. 854/04). Following yet another complaint lodged by the union, the decision to discontinue was upheld by the Wroclaw-Krzyki District Court (Iij Kp 46/05) on 7 November 2005, stating that the investigation was thorough and that the Prosecutor was correct in evaluating the evidence. The Court concluded that actions to order the security guards to remove the banners on behalf of the enterprise board did not meet the legal definition of an offence under article 35(1)(2) of the Act on trade unions, as the protest was illegal. The Government stresses that, from the point of view of reassessment of the legitimacy of the decision, the aforementioned acts already fall under the statute of limitations.
7. 1043. However, the final decision in case 1 Ds. 585/07 acknowledges that the theft or misappropriation of flags and posters belonging to the trade union on 27 June 2006 by individuals acting on behalf of the employer was not investigated. In line with the above, the Government indicates that the Wroclaw Krzyki Wschod District Prosecutor was requested to consider initiating separate proceedings in this respect.
8. 1044. As concerns the Court proceedings before Wroclaw-Srodmiescie District Court in case IVi P 584/06, whereby Waclaw Pastuszka, Chairperson of the Enterprise Commission of NSZZ “Solidarnosc”, requested to be reinstated in his job due to unlawful termination of employment contract by the enterprise defendant, the Government informs that the case ended with a valid verdict. On 17 November 2008, the Wroclaw Regional Court (ref. No. VII Pa 400/08) dismissed the appeal of the defendant against the verdict of the Wroclaw-Srodmiescie District Court acknowledging that the dismissal was in breach of labour law and reinstating the plaintiff in his job with the previous conditions of work and pay. The defendant lodged a cassation appeal to the Supreme Court but withdrew it on 25 May 2009.
9. 1045. Furthermore, the Government forwards information received from the NLI. Over the years 2003–09, inspectors of the Wroclaw Regional Labour Inspectorate held nine inspections at the enterprise, the majority of which were conducted in connection with complaints of representatives of the NSZZ “Solidarnosc” Enterprise Commission. The first inspection was carried out in March 2003 following a notification by the trade union on the breach of provisions concerning the company’s social benefit fund. During the inspection, the labour inspector discovered shortcomings, partially confirmed trade union charges relating to the rules of the company’s social benefit fund and prepared a draft recommendation regulating the issues. Two subsequent inspections (conducted in June and July 2004) were not connected with union requests.
10. 1046. In June 2004, the Wroclaw Regional Labour Inspectorate received another complaint by the NSZZ “Solidarnosc” Enterprise Commission whereby its Chairperson, Waclaw Pastuszka, requested intervention in the following cases: (i) incorrect operation of the social labour inspection in the establishment; (ii) incorrect organization of work in the establishment; (iii) incorrect payment of remuneration for overtime work; and (iv) breaching regulations on modifying work and remuneration conditions. As a result of the inspection, the labour inspector confirmed the first three charges. As concerns breaching regulations on modifying work and remuneration conditions, it was revealed that positions of all foremen in the Sulfonation Division have been liquidated as a result of restructuring. The establishment director requested the management to transfer Mr Pastuszka from the position of senior foreman dispatcher to that of an operator. The employer informed the trade union of its intent justifying it with the necessity to adapt the organizational structure of the branch to its current needs. Despite the negative opinion of the NSZZ “Solidarnosc” Enterprise Commission, the employer modified Waclaw Pastuszka’s work and remuneration conditions. Although, according to the labour inspector, establishment restructuring justified invoking article 1 of the Act of 13 March 2003 on special principles for terminating employment with employees for reasons not attributable to employees, as well as disregarding the ban on unilateral modification of work and remuneration conditions to the disadvantage of the employee covered with trade union protection without the consent of the management of the trade union organization, regulated by article 32(1)(2) of the Act of 23 May 1991 on trade unions, the recommendations included a request to “consider the possibility of invalidating modification of work and remuneration conditions of Waclaw Pastuszka, Chairperson of the Enterprise Commission of NSZZ “Solidarnosc” due to social interest of the parties”.
11. 1047. During the inspection, the charge was also raised on trade union discrimination by granting NSZZ “Solidarnosc” premises outside the establishment. The labour inspection established the following: the NSZZ “Solidarnosc” Enterprise Commission requested the management a number of times to renovate the premises occupied by the union; taking note of the requests and of the premises condition, the management made the decision to renovate the building; the union was offered substitute premises where it would pursue the activities defined in its charter; the new premises were not located outside the establishment but in the other production plant of the company; failing to recognize that the employer discriminated against the union, the labour inspector nevertheless recommended that the employer consider providing a room within the premises of the production plant at Krakowska Street in Wroclaw, for the union to pursue its operation there, so as to ensure that union management had unrestrained access to union members.
12. 1048. In September 2006, as a result of another union complaint, the labour inspector of the Wroclaw Regional Labour Inspectorate undertook an inspection in relation to the enterprise social benefit fund. During the inspection, the NSZZ “Solidarnosc” Enterprise Commission applied for the extension of its scope to cover the breach of regulations on the termination of employment contracts by the enterprise through the dismissal of the union’s Chairperson on disciplinary grounds on 27 July 2006. The labour inspection established the following: the employer stated that the reason behind the termination of employment was a grave breach of basic employee obligations by Mr Pastuszka including breaching Workplace Regulations in force in the company as well as disturbing order and peace in the workplace (which the employer assessed as a grave breach of paragraph 7(26) of Workplace Regulations), and deliberately breaching article 100(l)(2) and article 211 of the Labour Code by actions threatening to life, namely throwing himself under a moving car driven by another employee with a view to hindering execution of his duties. As Waclaw Pastuszka reported the incident as injury at work, it also served as the basis for the employer to terminate his employment contract without notice. The employer emphasized in the written statement that, as Chairperson of the NSZZ “Solidarnosc” Enterprise Commission, Waclaw Pastuszka was especially obliged to observe Workplace Regulations and the law. The employer also pointed out that, pursuant to the body of rulings of the Supreme Court, being a trade union activist did not exempt a union chairperson from the obligation to observe Workplace Regulations, nor from the obligation of displaying basic loyalty towards the employer. The NLI emphasizes, however, that Waclaw Pastuszka was protected from termination of employment twofold: as the Chairperson of the NSZZ “Solidarnosc” Enterprise Commission, he was protected under article 23(1)(1) of the Trade Unions Act (the Enterprise Commission did not consent to terminating his employment), and as a member of the Employee Committee he was protected under article 17(1) of the Act on informing and consulting employees. Thus, the labour inspector included the following conclusion in his recommendations: “Observing the Labour Law when terminating without notice employment contracts of employees serving as trade union activists.” The last inspection in the establishment was carried out in May 2008 and concerned in particular the question of adherence to procedures regarding the current collective labour dispute.
13. 1049. Finally, the Government conveys its remarks on the charge of NSZZ “Solidarnosc” concerning the lack of reaction on the part of the Polish Government or any public body. It emphasizes that the above information clearly shows that both the justice system and the NLI were actively engaged in resolving the situation of trade unions at the enterprise. During the dispute, the NLI held as much as nine inspections and filed a number of requests with the employer. Moreover, the Chairperson of the NSZZ “Solidarnosc” Enterprise Commission was reinstated in his job by way of a valid court sentence.
14. 1050. At the same time, the Lower Silesia Voivodeship Committee for Community Dialogue was also engaged in resolving the conflict on the request of the Lower Silesia Regional Board of NSZZ “Solidarnosc” and decided to delegate two representatives, one to represent the employer and the other to represent the trade unions, for a so-called goodwill mission. Talks between the opposing parties were to take place in the presence of those representatives. During the meeting held on 18 February 2008, members of the Executive Committee acquainted themselves with the views of one party to the conflict and decided to invite PZ Cussons Polska SA’s President for talks but the meeting did not materialize. The meeting finally took place in April 2008 but the President did not sign the record of divergences. Trade union representatives consulted with representatives of the Executive Committee of the Voivodeship Committee for Community Dialogue and with the Office of the Voivodeship Committee for Community Dialogue in relation to the conflict. Also, the Voivode motioned to the employer in writing a number of times. Parties to the dispute then requested the Minister of Labour and Social Policy to appoint a mediator. The appointed mediator participated in dispute resolution, yet due to the death of the mediator (after dispute cessation), the Government states that it is not in a position to provide further information on the nature of the dispute.
15. 1051. As concerns the conclusion by NSZZ “Solidarnosc” that the problem of malicious and permanent anti-trade union discrimination should undergo detailed debate in the framework of the Tripartite Commission, the Government emphasizes that pursuant to article 2(1) of the Act of 6 July 2001 on the Tripartite Commission for the Social and Economic Issues and voivodeship commissions of social dialogue, each party to the Commission may request that issues of great social or economic significance be included in the agenda if it finds that resolving them would be significant from the point of view of keeping social peace. Pursuant to article 2(3) of that Act, each of the parties to the Commission may summon the other party to express its position on an issue considered to be of great social or economic significance. The Government adds that all decisions concerning the agenda of the Tripartite Commission are taken by its Executive Committee, comprised of representatives of the representative workers’ and employers’ organizations, including the Chairperson of NSZZ “Solidarnosc”.

C. The Committee’s conclusions

1. 1052. The Committee notes that, in the present case, the complainant organization denounces acts of anti-union discrimination by the employer, including: harassment and unlawful dismissal of the union shop steward; interfering with and obstructing the trade union’s meetings and activities; and the misappropriation of the trade union’s property.
2. 1053. The Committee notes that, as a result of the acts alleged by the complainant, the Regional Board of the NSZZ “Solidarnosc” filed on 2 August 2006 a complaint (Ref. No. Ds. 1691/06) with the District Prosecutor’s Office for Wroclaw Krzyki Wschod charging the Managing Board of PZ Cussons Polska SA with: (1) contravention of article 35(1)(ii) of the Polish Trade Unions Act through impeding trade union activities; (2) contravention of article 35(1)(iii) of the Trade Unions Act through discrimination of workers (in particular, Waclaw Pastuszka) as to their trade union membership; and (3) contravention of article 218 of the Penal Code through malicious and persistent infringement on the provisions of labour laws, including the Trade Unions Act. On 29 November 2006, the District Prosecutor’s Office discontinued investigation of the case on grounds of the absence of illicit deed. On 12 December 2006, a complaint was filed by the NSZZ “Solidarnosc” against the discontinuation of inquiry. On 9 February 2007, as far as the impediment of union activities is concerned, the Regional Public Prosecutor allowed the complaint and revoked the decision to discontinue. The District Public Prosecutor’s Office reinstated the inquiry about the issue under file No. 1 Ds. 585/07. As for the discrimination against Waclaw Pastuszka, the Regional Prosecutor decided not to allow the complaint, and the complaint was sent to the District Court Wroclaw Krzyki Wydzial II Karny [Criminal Department], which approved the decision to disallow as well-founded on 26 March 2007; the union gave up further claims in this regard. On 28 June 2007, the District Prosecutor’s Office once again decided to discontinue the proceedings as regards the impeding of trade union activities. On 20 July 2007, the NSZZ “Solidarnosc” once again lodged a complaint with the Regional Prosecutor, charging the District Public Prosecutor’s Office with non-exercise of due diligence in establishing the facts and the circumstances of the case, but the appeal was not acknowledged.
3. 1054. As regards the moving of the trade union’s offices, the Committee notes the complainant’s allegation that, in August 2003, under the pretext of refurbishment works, the enterprise transferred the union’s offices in Krakowska Street to Dlugosza Street, approximately 8 km away from the company, and that, although refurbishment works have ended, the union has been unable to return to the premises. The Committee notes that, according to the NSZZ “Solidarnosc”, there were empty premises where the union had been located so far, which could have been made available to it, and that, at the same time, premises of the other trade union in the enterprise (NSZZ Pracownikow PZ Cussons Polska SA – OPZZ) continued to be located on site in Krakowska Street. The Committee further notes that, in the view of the complainant organization, the transfer of its offices to a remote part of the city has impeded contacts with union members as well as trade union activities, and the Prosecutor failed to take into account the abovementioned facts and circumstances during the proceedings, as well as that the vast majority of members of NSZZ “Solidarnosc” work in Krakowska Street and that there would have been other possible solutions for the enterprise to meet its obligation (e.g. joint use of the premises by both trade unions operating in the company). The Prosecutor maintained that, since the enterprise suggested another location, there was no infringement of law in this respect.
4. 1055. The Committee also notes that, according to the Government, the issue had already been the subject of proceedings initiated by the union for hindering trade union activity in the period between August 2003–February 2004. The proceedings were discontinued on 5 March 2004, reinstated following a complaint lodged by the union and discontinued again on 30 June 2004. Following another complaint, the decision to discontinue proceedings was upheld on 13 December 2004 by the Wroclaw-Krzyki District Court, which stated that there were no errors in legal evaluation or any formal defects. As regards the proceedings initiated by the union at a later stage on 2 August 2006, the Committee notes the indication of the Ministry of Justice that, as regards the transfer of union offices, it was found that the NSZZ “Solidarnosc” Enterprise Commission was not deprived of a seat where meetings of trade union members could be held and documentation stored, as it was allocated another room for that purpose, and that the subjective issue of convenience when travelling to allocated facilities cannot be evaluated in terms of penal law.
5. 1056. The Committee further notes from the NLI that, during the June 2004 inspection, it was established that the NSZZ “Solidarnosc” Enterprise Commission had requested the management to renovate the premises occupied by the union, and that the union was offered substitute premises which are not located outside the establishment but in the other production plant of the company. The Committee notes that, while the labour inspection did not find that the enterprise has discriminated against the union, it recommended that the enterprise consider providing a room within the premises of the production plant at Krakowska Street, for the union to pursue its operation there, so as to ensure that union management has unrestrained access to union members.
6. 1057. In this regard, the Committee recalls that Convention No. 135, ratified by Poland, calls on ratifying member States to supply such facilities in the undertaking as may be appropriate in order to enable workers’ representatives to carry out their functions promptly and efficiently, and in such a manner as not to impair the efficient operation of the undertaking concerned. For the right to organize to be meaningful, the relevant workers’ organizations should be able to further and defend the interests of their members, by enjoying such facilities as may be necessary for the proper exercise of their functions as workers’ representatives, including access to the workplace of trade union members. Respect for the principles of freedom of association requires that the public authorities exercise great restraint in relation to intervention in the internal affairs of trade unions. It is even more important that employers exercise restraint in this regard. They should not, for example, do anything which might seem to favour one group within a union at the expense of another [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 1098, 1106 and 859].
7. 1058. The Committee notes that the enterprise, following a request made by the NSZZ union, did renovate the premises occupied by the union and provided the union with premises remote from its membership, without considering possible alternatives and without allowing it to return to its previous premises at the end of the refurbishment works, while the other trade union in the enterprise continues to be located at the main premises. The Committee, taking into account the recommendation formulated by the NLI, therefore invites the Government to bring the NSZZ “Solidarnosc” and the enterprise together with a view to finding a mutually acceptable solution to the issue of trade union premises, bearing in mind the importance of ensuring both the effective functioning of the union and of the enterprise.
8. 1059. The Committee also notes that the union stepped up the protest in progress since October 2005 by displaying further trade union flags. It further notes that, according to the complainant, on 29 June 2006, the enterprise once again tore off and tried to remove the union’s flags from the premises by car, and that the Chairman of the union, Mr Waclaw Pastuszka, sought in vain to prevent it from doing so; the flags removed from the premises by the enterprise have never been returned to the union. The Committee further notes the indication that the enterprise filed a complaint against Mr Pastuszka with the District Prosecutor’s Office, charging him, inter alia, with the misappropriation of trade union flags; and that, on 21 December 2006, it was decided to discontinue the inquiry since the union’s protest action consisting of flying flags was lawful, and Mr Pastuszka did not misappropriate the flags because the flags were union property and Mr Pastuszka represented their owner. The complainant further alleges that the Prosecutor unlawfully excused, without investigating, the enterprise removal of the union flags stating that the enterprise only wanted to report the alleged offence rather than misappropriate the flags.
9. 1060. The Committee notes the Government’s confirmation of the 2003 judicial proceedings as described by the complainant and its further specification that, after another complaint lodged by the union, the decision to discontinue was upheld by the Wroclaw-Krzyki District Court concluding that the actions (to order the security guards to remove the banners) taken on behalf of the enterprise did not constitute an offence under article 35(1)(2) of the Trade Unions Act, as the protest was illegal. While the Government underlines that these acts already fall under the statute of limitations, the Committee notes that as regards the theft or misappropriation of flags and posters belonging to the trade union by individuals acting on behalf of the employer in June 2006, the Government concedes that the issue has not been investigated in the framework of the 2006 proceedings.
10. 1061. The Committee has always drawn attention to the importance of the principle that the property of trade unions should enjoy adequate protection [see Digest, op. cit., para. 189]. Recalling that the confiscation of trade union property by the authorities, without a court order, constitutes an infringement of the right of trade unions to own property and undue interference in trade union activities [see Digest, op. cit., para. 190], the Committee considers that the same is valid in case of unjustified seizure of union property by the employer. It therefore notes with interest the Government’s indication that the District Prosecutor was requested to consider initiating new proceedings as regards the theft or misappropriation of flags and posters belonging to the trade union by individuals acting on behalf of the employer in June 2006, since the issue has not yet been investigated. The Committee expects that these proceedings will conclude shortly, and that the flags and banners belonging to the union will be returned to it without delay, if they have not already been returned. The Committee requests to be kept informed of further developments in this regard.
11. 1062. As regards the dismissal of Mr Pastuszka and other allegations of acts of interference in union affairs, the Committee notes from the complainant that, in view of a notice addressed to the NSZZ “Solidarnosc” Enterprise Commission on Friday afternoon of 21 July 2006 concerning the intended termination of his employment on disciplinary grounds related to the flags incident in June 2006, and in order to observe the statutory period for taking a position (three days, expiring on Monday, 24 July), Mr Pastuszka requested and was granted leave on Monday to prepare the meeting of the NSZZ “Solidarnosc” Enterprise Commission. The Committee notes the complainant’s allegation that Mr Pastuszka was subsequently refused admittance to the enterprise, for the reason that he was on leave, although company regulations stipulate that chairpersons of trade unions have the right to enter the premises of the company. As, according to the complainant, it became impossible to hold the meeting between the first and second shift to secure the statutory quorum, the union asked for the exemption from normal duties of Mr Damian Korniak (member of the NSZZ “Solidarnosc” Enterprise Commission on the second shift) but the enterprise refused. Finally, after calling in a member of the NSZZ “Solidarnosc” Enterprise Commission who was returning from holiday and finding another venue outside the enterprise for the meeting, the NSZZ “Solidarnosc” Enterprise Commission adopted a resolution in which it did not give its consent to the termination of Mr Pastuszka’s employment. The Committee also notes the complainant’s allegation that, during the proceedings, the Prosecutor failed to take into account the abovementioned facts and circumstances; ignored evidence, such as the witness of the events, Slawomir Poswistak (the union’s legal adviser), and the fact that the refusal of admittance was not a single incident but a permanent practice (refusal to enter the premises on 20 June 2006 for granting a statutory benefit to a member and on 26 July 2006 for a meeting of the Presidium of the Enterprise Commission, which finally took place at the gate); and erroneously decided that the acts were not significant enough to affect the union’s functioning.
12. 1063. Furthermore, the Committee notes that, according to the complainant, the NSZZ “Solidarnosc” Regional Board informed the enterprise, by letter of 31 July 2006, that under the existing laws, despite employment termination, Mr Pastuszka was still the Chairman of the union, thus enjoying, according to company regulations, the right of entering company premises. It further notes that, on 13 March 2007, when rendering judgement in the case concerning the enterprise social benefit fund, the Regional Court confirmed this reading of the law. Notwithstanding the above, the enterprise allegedly continued to challenge the right of Mr Pastuszka to represent the NSZZ “Solidarnosc”, in breach of article 30 of the Constitution of Poland, article 1(2) of the Trade Unions Act, Supreme Court verdict of 6 June 2001, EU laws and ILO Conventions. Thus, despite properly lodged motions on 2 August 2006 and on 2 July 2007 signed by Mr Pastuszka, the enterprise refused to release the Deputy Chairman, Mr Mariusz Musialek, from his normal duties. According to the complainant, it also refused to release members of the NSZZ “Solidarnosc” Enterprise Commission without withholding remuneration so that they could perform trade union duties (e.g. the union meeting on 10 August 2006), simply because the motion was signed by Mr Pastuszka. The complainant further indicates that the Prosecutor ignored the presented evidence and erroneously established that the enterprise allegedly released union members from their normal duties at every request presented in due time; that it did not ignore the union’s position expressed in letters signed by Mr Pastuszka but only informed about its opinion on the issue of proper representation; that Mr Pastuszka’s right to represent the union has never been questioned; and that the dispute did not make it impossible to perform trade union activities.
13. 1064. The Committee notes that, in its reply, the Government refers to the proceedings initiated by the union on 2 August 2006 in relation to, inter alia, hindering trade union activity in the period between 2003 and 24 July 2006. This aspect referred in particular to the failure to grant Damian Korniak exemption from work for performing his union duties on 24 July 2006, and forcing the session of the Commission to be held outside the establishment on that same day. According to the Ministry of Justice, the proceedings were discontinued because postponing the session of the Enterprise Commission for about two hours inter alia due to the fact that the employer did not let Mr Pastuszka enter the premises during leave, did not suffice to conclude that this had an actual impact on trade union activity. The Superior Prosecutor then revoked the decision to discontinue proceedings in this respect because the complaint described subsequent events relevant to a claim of anti-union discrimination.
14. 1065. The Committee also notes from the Government’s reply that, while the parties to the conflict entered into a dispute concerning the authority of Mr Pastuszka to bring actions before the Court and to represent the union, the enterprise did not dispute the fact that the trade union organization operated in the establishment. According to the Ministry of Justice, case files showed that representatives of the enterprise, whether correct or incorrect in their legal opinions, did not fail to react on certain proposals tabled by the union; and informed the union of their position by way of letters dated 5 October and 22 November 2006 mainly emphasizing the problem of appropriate representation, and not of correctness of trade union position on, for example, the exemption from work of Mariusz Musialek. The Committee notes the Government’s indication that the issue of appropriate representation was eventually resolved by way of the ruling of 13 March 2007, and that the Prosecutor discontinued proceedings on 28 June 2007 pointing out that a different view on a legal matter may not be regarded as proof that a deliberate action had been taken aimed at hindering trade union activity. In the Government’s view, the legitimacy of the decision, which was upheld following another appeal, should not be questioned, since the validity of decisions as to the substance has undergone an appropriate inspection by a higher instance. Finally, the Government indicates that the Chairperson of the NSZZ “Solidarnosc” Enterprise Commission was reinstated in his job by way of a valid court sentence, and that the defendant employer withdrew a cassation appeal lodged with the Supreme Court.
15. 1066. The Committee wishes to recall that freedom of assembly constitutes a fundamental aspect of trade union rights, and that trade unions should be able to hold meetings freely in their own premises for the discussion of trade union matters. In this regard, the Committee observes that the access by Mr Pastuszka, as the Chairperson of the NSZZ “Solidarnosc” Enterprise Commission, to the workplace in Krakowska Street, and the exemption from normal duties of union members to carry out union activities, were essential to the organization’s ability to make a determination in the matter of his dismissal, as prescribed by law. In this respect, and bearing in mind its concerns noted above as regards the change of the trade union’s premises, the Committee recalls that workers’ representatives should be granted access to all workplaces in the undertaking where such access is necessary to enable them to carry out their representation function [see Digest, op. cit., para. 1104]. Moreover, the Committee recalls that Paragraph 10 of the Workers’ Representatives Recommendation, 1971 (No. 143), provides that workers’ representatives in the undertaking should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions, and that, while workers’ representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld.
16. 1067. Finally, the Committee wishes to draw special attention to the importance which it attaches to one of the fundamental principles of freedom of association that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 799]. Welcoming the Government’s indication that, after more than two years of proceedings, Mr Pastuszka has been reinstated in his job with the previous conditions of work and pay, the Committee expects that all necessary measures will be taken to ensure respect for the aforementioned principles in practice. The Committee expects that, in the future, the Chairperson of the NSZZ “Solidarnosc” Enterprise Commission will be afforded access to the enterprise with due regard for the rights and property of management, and that the necessary time off from work, without loss of pay or benefits, for carrying out representation functions will not be unreasonably denied by the enterprise.
17. 1068. More generally, the Committee notes the complainant’s allegation that the unlawful practices of the enterprise interfering into union affairs, obstructing its activities and aimed at intimidating union members, elicited no reaction from the Government or any public institution. At the same time, the Committee notes from the Government’s reply that both the justice system and the NLI were actively engaged in resolving the situation at the enterprise: the NLI held nine inspections and filed a number of requests with the employer; the Chairperson of the NSZZ “Solidarnosc” Enterprise Commission was reinstated in his job by way of a valid court sentence; the Lower Silesia Voivodeship Committee for Community Dialogue engaged in resolving the conflict on the request of the Lower Silesia Regional Board of NSZZ “Solidarnosc”, albeit without success; and the Minister of Labour and Social Policy appointed a mediator at the request of the parties to the dispute.
18. 1069. The Committee takes due note of the complainant’s suggestion that the problem of anti-union discrimination should be extensively debated by the Tripartite Commission, and that the Government should encourage employers’ organizations to express clearly their position on the issue, as well as the Government’s indication that pursuant to the Act of 6 July 2001 on the Tripartite Commission for the Social and Economic Issues and voivodeship commissions of social dialogue, each party to the Commission may request that issues of great social or economic significance be included in the agenda, and may summon another party to express its position. All decisions concerning the agenda of the Tripartite Commission are made by its Executive Committee, comprised of representatives of the representative workers’ and employers’ organizations, including the Chairperson of NSZZ “Solidarnosc”. In light of the important considerations raised in this case, the lack of consideration at certain levels of important allegations of anti-union discrimination and the fact that the Committee has in the past examined three cases concerning Poland involving similar issues (see Cases Nos 2291, 2395 and 2474; 333rd, 337th and 344th Reports, respectively), the Committee urges the Government, as it has in these previous cases, to intensify its efforts, under the auspices of the Tripartite Commission, to ensure that the principles of freedom of association and collective bargaining are applied, particularly as regards adequate protection against acts of anti-union discrimination and interference. The Committee thus expects that the Tripartite Commission will take up the matter in the near future and requests to be kept informed of the developments in this regard.

The Committee's recommendations

1. 1070. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) As regards the moving of the trade union’s offices, the Committee, taking into account the recommendation formulated by the NLI, invites the Government to bring the NSZZ “Solidarnosc” and the enterprise together with a view to finding a mutually acceptable solution to the issue of trade union premises, bearing in mind the importance of ensuring both the effective functioning of the union and of the enterprise. The Committee requests to be kept informed of the developments in this regard.
   • (b) As regards the alleged misappropriation of the union flags, the Committee expects that the new proceedings initiated in relation to the theft or misappropriation of flags and banners belonging to the trade union by individuals acting on behalf of the employer in June 2006, will conclude shortly, and that the flags and banners belonging to the union will be returned to it without delay, if they have not already been returned. The Committee requests to be kept informed of the developments in this regard.
   • (c) As regards the dismissal of Mr Pastuszka and other allegations of acts of interference in union affairs, the Committee, welcoming the Government’s indication that Mr Pastuszka has been reinstated in his job with the previous conditions of work and pay, expects that all necessary measures will be taken to ensure respect in practice for the principles of freedom of association set out in its conclusions. In particular, the Committee expects that, in the future, the Chairperson of the NSZZ “Solidarnosc” Enterprise Commission will be afforded access to the enterprise with due regard for the rights and property of management, and that the necessary time off from work, without loss of pay or benefits, for carrying out representation functions will not be unreasonably denied by the enterprise.
   • (d) More generally, the Committee urges the Government to intensify its efforts, under the auspices of the Tripartite Commission, to ensure that the principles of freedom of association and collective bargaining are applied, particularly as regards adequate protection against acts of anti-union discrimination and interference. The Committee thus expects that the Tripartite Commission will take up the matter in the near future and requests to be kept informed of the developments in this regard.