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

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

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

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

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

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

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

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