REPRESENTATION (article 24) - POLAND - C087 - 1995

1. NSZZ Solidarnosc

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Report No. 301 of the Committee on Freedom of Association, Case No. 1785 -- Representation against the Government of Poland presented by NSZZ Solidarnosc

Complaint Procedure

Allegations: Non-implementation of measures aimed at restituting trade union assets confiscated illegally
4. In a communication of 15 June 1994, NSZZ Solidarnosc submitted a representation under article 24 of the ILO Constitution alleging the non-observance by Poland of the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87). In accordance with its usual practice, at its 260th Session (June 1994), the Governing Body referred to the Committee on Freedom of Association the examination of the allegations concerning the non-observance of Convention No. 87. NSZZ Solidarnosc supplied additional information in subsequent communications of 28 July 1994 and 22 February 1995. The World Confederation of Labour and the International Confederation of Free Trade Unions (ICFTU) supported this representation in communications dated 20 and 21 June 1994, respectively.
5. The Government supplied its observations in communications dated 23 September 1994 and 25 May 1995
6. Poland has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87).
A. The complainant's allegations
7. In its initial communication of 15 June 1994, NSZZ Solidarnosc emphasizes, first of all, that it decided to submit the present representation only after having exhausted all the available domestic remedies, the resort to which, unfortunately, did not bring legislation and practice into conformity with the requirements of Convention No. 87
8. NSZZ Solidarnosc then explains the background to the problems giving rise to the representation. With the registration of NSZZ Solidarnosc in November 1980, trade union pluralism was restored in Poland after more than 30 years of union monopoly. Millions of members of the former single trade union structure, controlled by the Communist Party, left its industrial sections and joined newly established independent and free trade unions, be it NSZZ Solidarnosc or other new trade unions. Such a massive withdrawal of members made it necessary to dissolve CRZZ (Central Council of Trade Unions) - a central monopolistic structure of the Federation of Trade Unions, which each trade union had a legal obligation to belong to. As a consequence of the dissolution of CRZZ, its enormous property and assets were to be distributed among all existing trade unions. A special commission was set up to deal with detailed arrangements for the distribution of the property and assets of CRZZ. The commission completed its task in autumn 1981, but the implementation of its proposals was prevented by the imposition of martial law in the whole territory of Poland on 13 December 1981. According to the Decree of Martial Law, all trade unions were suspended and their property and assets (a good part of which were damaged by intervening ZOMO - riot police) submitted to temporary supervision by administrators appointed by voivods (district administrative organs). This period of suspension ended with the de-legalization of all trade unions under the Trade Union Act of 8 October 1982, which reintroduced a single trade union system. For the administration of trade union property and assets, a provisional commission was set up by the Order of the Council of Ministers of 15 October 1982.
9. In 1984 the All-Poland Trade Union Alliance (OPZZ) was established as a national confederation of monopolistic union structures. OPZZ claimed succession to the property and assets administered by the special commission since 1982. In response to those claims, Orders of the Council of Ministers of March and April 1984 created legal bases for the gradual transfer of property and assets belonging to formerly existing unions. By a separate decision of December 1984, OPZZ was granted PZL200 million in cash from funds confiscated from trade unions, and particularly from NSZZ Solidarnosc. During the Round Table Talks at the beginning of 1989, a decision was taken by a working group on trade union pluralism that OPZZ would restore to Solidarnosc the property and assets which it had taken over. However, due to deliberate resistance and obstruction by all levels of the OPZZ structure, the decision of the Round Table was not implemented. Difficulties in negotiable resolution of the problem of property and assets prompted a group of parliamentarians to submit a draft law in this regard. Eventually the Parliament adopted on 25 October 1990 the Act on the restitution of property and assets expropriated from trade unions and social organizations as a result of the introduction of martial law. The need to have the Act passed in an accelerated way contributed to its several shortcomings, in particular an omission of the question of property and assets expropriated after martial law, individual confiscations from trade unionists and the question of the property and assets of CRZZ.
10. According to the complainant, although the Act established a mechanism for the restoration of property and assets, under which claims can be lodged to the Social Claims Commission, the whole procedure has proved to be inefficient to date. Deficiencies in the very Act and an absence of efficient mechanisms for enforcement and execution of its provisions make it a relatively weak instrument for making claims. Partly, an improvement has been brought about by the Trade Union Act of 23 May 1991. Section 45 fills one gap, namely with respect to the property and assets of CRZZ appropriated under section 61 of the Trade Union Act of 8 October 1982. The complainant points out that this solution has enabled a redistribution of property and assets of CRZZ by resort to the same procedure under which OPZZ took over property and assets after the declaration of martial law. Thus, there should be no grounds for OPZZ to contest now the legality of the procedure in question.
11. However, the implementation of section 45 of the 1991 Act faces enormous difficulties such as the entire boycott by OPZZ of the adopted state legislation which takes a form of deliberate and coordinated action. For instance, OPZZ circulated among its affiliates a standard letter to be sent to the Social Claims Commission in case Solidarnosc claimed restitution of its property and assets. In addition, there are numerous proved cases that affiliates of OPZZ have been changing their names and internal rules in order to apply for new registration in courts as allegedly newly established trade unions with new legal personalities, claiming thus no responsibility for property and assets of its predecessors. There are also reports about concealment of particular components of the confiscated union property and assets or their transfer to specially established foundations or other bodies which are new legal entities enjoying legal personality. All these symptoms prove wide-scale action taken to avoid the application of statutory rules with respect to OPZZ.
12. Thus, although both legal instruments (Act of 25 October 1990 and Act of 23 May 1991) establish legal bases for the return of appropriated property and assets, deficiencies in their provisions, lack of their efficient implementation and obstructive conduct by OPZZ reduce, essentially, opportunities to achieve the aims of the legislative regulations. Therefore, both instruments require, in the complainant's opinion, that their provisions be strictly respected and that essential amendments be introduced by a newly elected Parliament. First of all, existing legislation should be supplemented by rules strengthening mechanisms for enforcement and execution, most notably by the imposition of a "freeze" on all property and assets of OPZZ and by recognizing as null and void all allegedly legal deeds of concealment or evasion, transfer or change of a form of possession of any component parts of expropriated property and assets. Such opportunities are to a certain extent provided for by section 1, paragraphs 2-3 of the Act of 25 October 1990.
13. As far as the question of redistribution of property and assets of the dissolved CRZZ is concerned, an absence of agreement between trade unions concerned in the prescribed time-limit (up to 30 September 1991) obliges the Government, under section 45, paragraph 4 of the Trade Union Act of 23 May 1991, to adopt a resolution determining the principles of redistribution of the property and assets concerned. The complainant asserts that the Government should therefore, without any delay, pass the resolution and ensure its efficient implementation. The urgency in the adoption of such a resolution is justified by the persistent obstruction by the OPZZ and worse, by the continuing possession by the OPZZ of enormous trade union property and assets. According to the complainant's sources, a substantial part of the property in question has been rented to private companies on commercial terms, thereby unjustly enriching the OPZZ even further.
14. In its communication of 28 July 1994, the complainant refers to inter-union meetings held since February 1992 at the Ministry of Labour, in order to determine the membership of various trade unions so as to decide on the proportion of the redistribution of property and assets of the dissolved CRZZ. The complainant contends that its representative at these meetings reported regularly about hesitation by the OPZZ to declare its actual membership. Virtually all the other trade union organizations during those meetings submitted their own information on membership and declared their readiness for external verification of the submitted figures. For instance, NSZZ Solidarnosc submitted its latest figures on membership, which are annually verified before the National Congress. The OPZZ was the only trade union whose figures (4.7 million members) were contested by other unions, and it was the only union which, for a good several months, opposed the application of the verification procedure. When eventually the OPZZ agreed to allow for verification, the representatives of NSZZ Solidarnosc visited Mr. Obarski (vice-chairman of the OPZZ), who gave them only one sheet of paper claiming the same figures on membership which were submitted earlier, although his previous statements referred to a large documentation on membership. The OPZZ continuously was claiming at those meetings that they needed more time to determine their membership in different branch unions making up the OPZZ. After several prolongations, Mr. Obarski declared that the OPZZ had not at its disposal a list of membership in branches but in its territorial organizations. This clearly proves that the OPZZ was lying earlier, when asking for prolongations due to difficulties in counting its membership branch by branch. In such a situation, a proposal was made to verify a selected number of territorial organizations of the OPZZ. In a response to proposals for verification of the OPZZ's membership, its chairwoman, Ms. Ewa Spychalska, decided to withdraw the OPZZ from the commission dealing with the CRZZ property and assets. This was yet another unacceptable obstruction by the OPZZ. The whole question of the representative character of trade union organizations in Poland was made the subject of a national seminar in Bialobrzegi, from 6 to 7 April 1994. In the course of debates, a representative of the OPZZ admitted that its membership dues were insignificant since most of its budget derived from a business activity.
15. Turning to the issue of the property and assets confiscated by the Communist authorities under martial law, the complainant repeats its previous assertion that the implementation of the Act of 25 October 1990 continues to be ineffective. In addition to the legislative shortcomings, this has largely been due to the obstructive conduct by the OPZZ to prevent the return of the assets (e.g. by re-registration and a change of names by the OPZZ affiliates to become allegedly new legal entities with no responsibility for their predecessors, transfer of assets to private companies, foundations or funds, etc.). In this context, however, the complainant points out that the Act of 1990 ensures sufficient procedural guarantees for claimants through the Social Claims Committee and the right to appeal against its decisions to the Administrative High Court. As the Committee reported for the period up to 30 June 1994, it has dealt with 3,556 cases brought before it since its establishment, of which decisions were taken in 2,571 cases, agreements between the parties were endorsed in 209 cases, while in the remaining number of cases proceedings have not yet been completed. In 617 cases finalized with decisions by the committee, appeals were lodged to the Administrative Court. These figures show that although the procedure before the committee takes its time, its modus procedendi is an indispensable part of the rule of law in a democratic country. Therefore, in the complainant's view it is the Government that is responsible for the inefficient enforcement of the decisions of the Social Claims Committee. This may be proved by referring to reports of the said committee. In 85 per cent of the 2,571 decisions taken by the Social Claims Committee, the duty to return assets by trade union organizations which had taken them over was established. Thus, the very responsibility for the return of assets was not contested in an absolute majority of cases (in the remaining 15 per cent of decisions, difficulties were of documentary proof, a frequent problem concerning the martial law period).
16. Furthermore, there is now a new dangerous trend with respect to enforcement procedure. The complainant illustrates this trend by referring to two documented cases of more general significance. The first regards an alleged inability of the OPZZ to satisfy the determined claims. The Warsaw Second Treasury Board (Drugi Urzad Skarbowy) admitted in its letter to the NSZZ Solidarnosc regional board in Lublin that the satisfaction of its claims towards the OPZZ may not entirely be possible since the whole value of the OPZZ's assets is unknown. The Treasury Board therefore requested the District Court in Warsaw in 1993 to issue an injunction to have the OPZZ's assets revealed, but since then no ruling by the court was made. The second case shows yet a new dimension. The same Warsaw Second Treasury Board (territorially competent to deal with execution against the Warsaw-based OPZZ) informed in its letter to the Gdansk regional board of Solidarnosc that its claim, endorsed by the Social Claims Committee, was suspended due to an initiation of legislative action in the Parliament to amend the 1990 Act. Under the law in force, a suspension in question is not allowed legally on such grounds as initiation of legislative amendments.
17. According to the complainant, the fact that these new trends have emerged in the course of 1994 is closely linked with a new government and its political basis. After the parliamentary election in September 1993, the coalition of the Peasant Party (an ex-Communist satellite) and of the Left Democratic Union (a post-Communist Party) formed a government. An important factor of the parliamentary election was that the OPZZ ran for election on the electoral candidate lists of the Left Democratic Union and gained about 60 seats in the Parliament. This political power gained in democratic election allowed the OPZZ to attempt to change earlier arrangements on the restitution and redistribution of trade union property and assets. By a motion of 26 April 1994, a group of the OPZZ's parliamentarians intended to remove an obligation of restitution of assets from the OPZZ to the Government by stipulating that the assets would remain in the hands of the OPZZ and that the state budget would compensate any confiscations or expropriations of the assets of NSZZ Solidarnosc. In a spirit of total disrespect for the earlier decisions, a draft of an Act provides for an abrogation of all the decisions of the Social Claims Committee, the judgements of the Administrative High Court and the agreements achieved by the trade unions concerned. While this concerns a draft law, the complainant draws attention to the fact that the draft confirms an obstructive attitude by the OPZZ towards the whole problem.
B. The Government's reply
18. In its communication of 23 September 1994, the Government admits that the Act of 25 October 1990, on the restitution of property and assets expropriated from trade unions and social organization following the introduction of martial law, is not a perfect instrument. Its deficiencies hindered and still hinder the work of the Social Claims Commission, responsible for conducting proceedings concerning restitution of trade union assets.
19. The Government adds that there are other reasons. On 7 October 1992, the Diet accepted, by resolution, part of a ruling handed down by the Constitutional Court on 25 February 1992. This part of the ruling stated that sections 2(3) and 3 of the 1990 Act - relating to the obligation to provide compensation in respect of the wear and tear on property used to satisfy the needs of trade union members - were incompatible with the Polish Constitution. So far, the Diet has not introduced appropriate amendments to the Act of 25 October 1990, as required by section 7(3) of the Act of 29 April 1985 on the Constitutional Court. Work on these amendments had first started in Parliamentary Committees in January 1993. However, it was interrupted due to Parliament's dissolution in June 1993.
20. According to the Government, it is this absence of necessary legal rules that led the Administrative High Court, when examining complaints against the decisions of the Social Claims Commission, to recommend in its judgements that proceedings be suspended in all cases where a trade union, obliged to restitute, argues that it has expended a part of taken-over assets for the needs of Solidarnosc members. The Court recommended that proceedings be suspended till the necessary amendments were introduced. As a result, several hundred proceedings concerning the restitution of assets have been interrupted. Decisions taken to date by the Social Claims Commission, based on the provisions recognized as incompatible with the Constitution, will be considered as null and void and the Commission will have to take new decisions in accordance with the amendments. However, despite the above-mentioned and other difficulties, the Commission has already examined almost 2,800 cases out of a total number of more than 3,500.
21. In any event, in the opinion of the Government, a real reason for the difficulties in executing the 1990 Act lies in the fact that section 3(1) of the Act applies an excessively high multiplier for the purpose of revaluating the funds in Polish zlotys to be returned. This has led to trade union obligations, as determined by the Social Claims Commission, most often largely exceeding the payment possibilities or even the total assets of trade unions. Thus, debtors whose bank resources are insufficient to satisfy claims will aim to avoid paying dues impossible to pay.
22. As regards the actions of the Warsaw Second Treasury Board and the indolence of the District Court in Warsaw, the Government contends that it has and can have no influence on the judiciary. Thus, if the Treasury Board requested the District Court in Warsaw "issue an injunction to have the OPZZ's assets revealed", this is entirely up to the District Court. On the other hand, the Treasury Board's reasons for suspending executory proceedings due to the initiation of legislative action in Parliament to amend the 1990 Act could raise some doubts. However, to suggest that both facts are connected with political changes after the September 1993 parliamentary election is completely unjustified, because the Second Treasury Board has not paid any dues to Solidarnosc from OPZZ bank accounts since their blockage in December 1991.
23. The Government explains that all the above-mentioned problems led a group of deputies on 26 April 1994 to submit to the Diet President a draft Act amending the 1990 Act. This draft Act contains, apart from the changes resulting from the Diet Resolution of 7 October 1992, a proposal to replace the current principle of general responsibility of trade unions which took over assets of Solidarnosc by a principle of responsibility of subjects which, as a result of the introduction of martial law, directly took over these assets and managed them and only later (in the years 1983-85) transferred them to newly created trade unions (including OPZZ). According to these proposals, trade unions and their central organization (OPZZ) would be obliged to restitute financial resources increased by bank interests for the period these organizations had them at their disposal. Such payments, however, would have to be within the trade unions' financial possibilities. The remaining amount, that is the difference between the amount actually restituted by trade unions and the amount due on the basis of section 3(1) of the 1990 Act, would be given by enterprises and the Treasury. However, since such a solution would impose a considerable burden on the state budget, the Government - before expressing its final position - would estimate if and in what time the state budget could accommodate such additional obligations. Moreover, the Presidium of the National Commission of NSZZ Solidarnosc adopted on 27 June 1994 its position No. 107/94 totally rejecting the above-mentioned draft Act of 26 April 1994. In this connection, work on the draft amendments to the 1990 Act is being prolonged because new legal regulations should acquire at least the friendly neutrality of the main party concerned, i.e. NSZZ Solidarnosc.
24. However, the Government rejects the complainant's demand that a freeze be imposed on all property and assets of the OPZZ in order to guarantee restitution of Solidarnosc assets by OPZZ. This is unjustified since property and assets at the disposal of OPZZ include, besides taken-over Solidarnosc assets, also assets owned by OPZZ itself (for example from membership fees) as well as administered assets of the former CRZZ, a part of which, after distribution, will become the property of the OPZZ. The solution proposed by NSZZ Solidarnosc would paralyze the OPZZ's activities and thus violate Convention No. 87. In any case, both Warsaw accounts of the OPZZ have been blocked by the Tax Office since December 1991 and the burden imposed on the OPZZ by decisions of the Social Claims Commission considerably exceeds the financial assets remaining in these bank accounts.
25. The Government then states that the issue of the distribution of the assets of the former CRZZ is another matter that requires an urgent solution. Under section 45 of the Trade Union Act of 23 May 1991, representatives of workers of trade unions nationwide were to determine independently (by agreement) the principles governing the use and distribution of CRZZ assets. Although the same provision obliged the Government to determine, by an Order, the principles of utilization and distribution of CRZZ assets if an inter-union agreement were not reached before 30 September 1991, the Government postponed issuing such an Order, at least until elementary inter-union agreement was reached on the matter. For this reason, meetings of trade unions nationwide were held at the Ministry of Labour and Social Policy since February 1992. However, joint sessions were stopped due to difficulties in deciding on the proportion of distribution of assets.
26. The Government did not consider that prolonging negotiations would have serious negative effects since section 45(2) of the Trade Union Act of 1991 ensures protection against the diminishing of the value of the former CRZZ assets, administered by the OPZZ. It ensures such protection notably by declaring all legal proceedings exceeding the scope of normal management to be null and void. Moreover, benefits of third parties resulting from these illegal proceedings are subject to restitution in favour of the reduced assets.
27. As a result, in January 1994 further talks were held in the headquarters of the Ministry of Labour and Social Policy, with the participation of representatives of Solidarnosc and OPZZ Presidiums. During these meetings, both parties agreed to quickly start negotiations and OPZZ indicated that it would make available to Solidarnosc the necessary documents. Although the next round of negotiations has yet to be held, the Government considers that the possibility of distributing CRZZ assets through agreement still exists. Such a solution would be better for all parties concerned than an administrative decision by the Government in inter-union disputes over assets. Finally, the Government emphasizes that the ineffectiveness so far in restituting trade union assets is not the result of indolence or ill-will on the part of the Government but rather has its source in legal obstacles as well as the poor financial condition of trade unions, which make the payment of high liabilities impossible.
28. In its latest communication of 25 May 1995, the Government indicates that the Diet has already initiated work on a draft amendment to the Act of 25 October 1990. The draft amendment had been submitted by deputies to the Diet in a modified version of the text described by the Governments in its earlier communication. A main difference lies in that a provision provides for the taking over of a substantial part of unions' liabilities exclusively by the State Treasury and not by enterprises. This is because the principal aim of the Act is to guarantee last and actual - and not only formal - restitution of assets to Solidarnosc and also a reduction in liabilities of other unions in this respect so as to ensure that they are able to fulfil their obligations. On 25 April 1995, the Council of Ministers adopted and then submitted to the Diet this draft amendment, indicating that it was a convenient basis for further legislative work.
29. Furthermore, the Government states that it is ready to take over a part of union liabilities by the State Treasury, proposing claims compensation in the form of allocation of objects and equipment which are communal property; allocation of objects and equipment which are the property of restructured or liquidated state-owned enterprises; allocation of shares of companies owned or controlled by State Treasury; and direct payments up to the amount agreed upon between the trade unions. In addition, the Government has suggested that the proposed amendments should also regulate the problem of distribution of the former CRZZ assets, currently at the disposal of OPZZ.
30. Currently, the draft amendment is being elaborated by a subcommittee set up by the Legislative Committee of the Diet. The Government concludes by indicating that a plenipotentiary of the National Commission of Solidarnosc has taken part in the work of this subcommittee since 30 March 1995.
C. The Committee's conclusions
31. The Committee notes that the allegations in this case concern the failure by the Government to ensure the effective restitution of property and assets of NSZZ Solidarnosc confiscated during and after the introduction of martial law and granted to the All-Poland Trade Union Alliance (OPZZ) in 1984. The allegations also concern the failure to redistribute property and assets of the former monopolistic Central Council of Trade Unions (CRZZ). According to the complainant, this failure is attributable to the fact that the Government did not ensure the introduction of legislative amendments to the Act of 25 October 1990 and the Act of 23 May 1991 in order to strengthen mechanisms for the enforcement and execution of their provisions. According to the Government, it did elaborate draft amendments on 26 April 1994 which were, however, rejected by the Presidium of the National Commission of Solidarnosc; it therefore did not proceed with the enactment of these amendments. The Committee regards it is deplorable that more than ten years after the confiscation of NSZZ Solidarnosc assets these have still not been restored.
32. The Committee notes that according to the complainant, it is not only the deficiencies in the provisions of these legal instruments but also the obstructive conduct of the OPZZ which has made the return of these assets extremely difficult. This obstructive conduct of the OPZZ includes re-regisration and a change of names of its affiliates to become new legal entities with no responsibility for their predecessors, transfer of assets to private companies, foundations or funds, etc. The complainant points out, however, that the 1990 Act ensures sufficient procedural guarantees for claimants through the Social Claims Committee and the right to appeal against its decisions to the Administrative High Court. Up to 30 June 1994, the Claims Committee had dealt with 3,556 cases brought before it of which decisions were taken in 2,571 cases. Since the duty to return assets by trade union organizations which had taken them over was established, it is the complainant's view that the Government is responsible for the inefficient enforcement of the decisions of the Social Claims Committee.
33. In this context, the Committee notes that the complainant suggests that a "freeze" should be imposed on all property and assets of OPZZ and that any legal deed of concealment or evasion, transfer or change of any part of such property should be considered as null and void. The Government, on the other hand, qualifies this demand as unjustified since property and assets at the disposal of OPZZ include not only taken-over Solidarnosc assets but also assets owned by OPZZ itself as well as assets of the former CRZZ, a part of which, after distribution, will become the property of the OPZZ. Nevertheless, both Warsaw accounts of OPZZ have been blocked by the Tax Office since December 1991.
34. The Committee notes with concern, however, that this sort of reasoning by the Government does not resolve the problem of restituting Solidarnosc assets that were confiscated in 1984. The Committee's concerns are somewhat heightened by the Government's contention that the main reason for the difficulties in restituting these assets lies in the fact that section 3(1) of the 1990 Act applies an excessively high multiplier for the purpose of revaluating the funds to be returned in Polish zlotys. The Committee notes that this is exactly the same argument that was used by OPZZ in a previous complaint brought before it in May 1993 (see 287th Report of the Committee, Case No. 1677 (Poland), paras. 343-369). The Committee would reiterate here what it had stated in that case: namely, that the aim of this section is to ensure the restoration to the former owner organizations, for the benefit of their trade union activities, of the funds which were confiscated from them over a decade ago. It therefore appears justifiable, in order to enable these organizations to recover funds with a value equivalent to that of the funds of which they were deprived, that a reasonable multiplier should be applied. The Committee feels, however, that it is not in a position to give an opinion as to the value of the multiplier in question in the present case, considering as it does that this is a matter to be dealt with at the national level, if possible with the agreement of all the interested parties.
35. The Committee recalls that during its examination of the above-mentioned complaint in May 1993, it had expressed the hope that amendments to the Act of 25 October 1990 would rapidly enter into force in order to provide the trade union organizations with a complete and definitive legal framework, within which the restitution of trade union property could be effected with the full participation of the organizations concerned. In this connection, the Committee notes that a first such draft amendment of 26 April 1994 was rejected by the Presidium of the National Commission of NSZZ Solidarnosc. It notes with interest, however, the Government's statement in its latest communication to the effect that a modified version of the above-mentioned draft amendment had been adopted by the Council of Ministers on 25 April 1995 as a basis for further legislative work. These draft amendments are currently being elaborated by a subcommittee set up by the Legislative Committee of the Diet. Furthermore, a plenipotentiary of the National Commission of Solidarnosc has been taking part in the work of this subcommittee since 30 March 1995. The Committee calls on the Government to ensure that these draft amendments to the Act of 25 October 1990 rapidly come into force. The Committee requests the Government to keep it informed of any developments made in this respect as well as of any developments concerning the practical application of these amendments once they come into force.
36. As regards the redistribution of property and assets of the former CRZZ, the Committee notes the complainant's assertion that the Government is obliged, under the terms of the Trade Union Act of 1991, to adopt a resolution determining the principles of redistribution of the property and assets concerned. According to the complainant, the urgency in adopting such a resolution is justified by the absence of agreement between the trade unions concerned up to now. For its part, while acknowledging that talks that were held intermittently were discontinued due to lack of agreement on the principles of redistribution of property and assets, the Government feels that a solution reached by agreement between the parties is still possible. In the Government's opinion, such a solution would be better for the parties concerned rather than an administrative decision by the Government in inter-union disputes. The Committee observes however, that the parties who were supposed to have reached agreement on this issue before 30 September 1991 have still failed to do so four years later. In any event, it would apparently not be necessary for the Government to adopt a resolution determining the principles of redistribution, since the Government indicates that it intends for the amendments to the 1990 Act to regulate the problem of redistribution of the former CRZZ assets. The Committee expresses its firm expectation that these amendments will be expeditiously applied and that they will, in effect, regulate the problem of redistribution of the former CRZZ assets. The Committee requests the Government to keep it informed of any developments in this respect.
37. Pending the entry into force of these amendments, the Committee notes with concern that various acts of dissimulation and obstruction have allegedly been carried out by OPZZ including the changing of names and internal rules of its affiliates in order to apply for new registration in courts as newly established trade unions with no responsibility for the property and assets of its predecessors; concealment of components of confiscated union property and assets or their transfer to specially established foundations or other bodies; the renting of confiscated property to private companies on commercial terms, thereby enriching the OPZZ even further; and the concealment and subsequent exaggeration of actual membership figures by OPZZ representatives attending the inter-union meetings held since February 1992 at the Ministry of Labour in order to determine the membership of various trade unions so as to decide on the proportion of the redistribution of property and assets of the dissolved CRZZ. The Committee observes that the Government does not refute any of these allegations; it explains these actions due to the fact allegedly that in applying an excessively high multiplier, the trade union debts determined by the Social Claims Commission often exceed the payment possibilities of debtor trade unions.
38. The Committee is of the view, however, that such acts aimed at evading the restitution of assets to their rightful owners cannot be condoned nor ignored. In this context, the Committee notes that section 45(2) of the Trade Union Act of 1991 ensures protection against the lowering in value of the former CRZZ assets, administered by OPZZ, by declaring all legal proceedings exceeding the scope of normal management to be null and void, and by subjecting to restitution in favour of the reduced assets, benefits of third parties resulting from these illegal proceedings. The Committee considers that Solidarnosc assets confiscated after the introduction of martial law are entitled to the same legal protection. It therefore urges the Government, pending the entry into force of amendments to the 1990 Act, to take immediate and appropriate steps, including the imposition of sanctions if necessary, to ensure that the same protection that is afforded to former CRZZ assets under the Trade Union Act of 1991, is extended to Solidarnosc assets that were confiscated during the martial law period. This could be done by rendering null and void all legal acts which exceed the scope of normal management of former assets of Solidarnosc and by subjecting to restitution in favour of the reduced assets, benefits of third parties resulting from these illegal acts. It requests the Government to keep it informed of any progress made in the adoption of such measures.
The Committee's recommendations
39. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
(a) The Committee calls on the Government to ensure that the draft amendments to the Act of 25 October 1990 rapidly come into force so that trade union organizations are provided with a complete and definitive legal framework within which the restitution of trade union property, confiscated during martial law, can be effected with the full participation of the organizations concerned. The Committee requests the Government to keep it informed of any developments in this respect as well as of the practical application of these amendments once they come into force.
(b) Noting that the Government intends for the above-mentioned amendments to regulate the problem of the redistribution of property and assets of the dissolved Central Council of Trade Unions (CRZZ), the Committee expresses its firm expectation that these amendments will be expeditiously applied and that they will, in effect, regulate the problem of redistribution of the former CRZZ assets. It requests the Government to keep it informed of any progress made in this respect.
(c) Pending the entry into force of amendments to the 1990 Act, the Committee urges the Government to take immediate and appropriate measures, including the imposition of sanctions if necessary, to ensure that the same protection that is afforded to the assets and property of the former CRZZ under the Trade Union Act of 1991, is extended to assets of Solidarnosc that were confiscated during the martial law period. It requests the Government to keep it informed of any progress made in the adoption and implementation of such measures.