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

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

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

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

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

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

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

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

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