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

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

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

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

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

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

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