Informe provisional - Informe núm. 284, Noviembre 1992

Caso núm. 1644 (Polonia) - Fecha de presentación de la queja:: 02-ABR-92 - Cerrado

1. 1030. In communications dated 2 April and 7 August 1992, respectively, the Federation of Mining Unions and the Occupational Union of Employees in the Copper Industry (UPEIC) presented complaints of violation of freedom of association against the Government of Poland. In a communication dated 27 May 1992, the Federation of Mining Unions submitted additional information in support of its complaint. The Government sent its observations on the complaints submitted by the Federation of Mining Unions in a communication dated 20 July 1992.
2. 1031. Poland has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 1032. In its communications of 2 April and 27 May 1992, the Federation of Mining Unions alleges that the Government refused to participate in arbitration proceedings with a view to settling the inter-works disputes on wages in the mining industry, thus violating sections 1 and 16 of the Act of 23 May 1991 on the settlement of collective labour disputes.
2. 1033. The complainant states that the Government, considering itself party to the dispute, participated in the first stages of the settlement of the dispute - negotiation and conciliation procedures - which were held from March to June 1991. However, after noting the failure of these proceedings and aftethe Federation had requested the Arbitration Chamber of the Supreme Court to settle the dispute, the Government, failing to abide by the legal provisions, refused to appoint three of the six members of the Arbitration Chamber. This refusal prevented the proceedings from taking place before this body.
3. 1034. On 20 March 1992, the President of the Chamber of Labour Administration and Social Security of the Supreme Court, under section 5(2) of the Order of the Council of Ministers dated 16 August 1991 laying down the rules of procedure for the social arbitration chambers, handed down an Ordinance stating that it had not been possible to examine the dispute because the Ministry of Industry had failed to appoint members of the Arbitration Chamber.
4. 1035. According to the complainant, the way in which the Government acted before the Social Arbitration Chamber in its capacity as the defendant in an inter-works dispute, is a flagrant violation of legal standards voted by the Diet and Council of Ministers, which apply not only to the trade unions but also to the Government. It further points out, referring to the complaint submitted by it to the Committee in 1990 (Case No. 1545), that the Government has already adopted a similar attitude in the past.
5. 1036. The complainant points out that the coalmines are national enterprises and that, consequently, the Government is an employer. The Government owns mines and means of production, grants endowments, fixes prices, establishes export quotas for coal and runs the whole Polish mining industry. It also draws up and implements programmes of structural adjustment in the mining industry. The Government is one of the signatories of the collective labour agreement for employees in mining enterprises, signed on 21 December 1991. The complainant nevertheless stresses that this agreement does not settle the problem of the appropriate level of wages, which is the subject of its dispute with the Government.
6. 1037. The complainant is of the opinion that if the Government continues to adopt the attitude that it has shown in this case, no labour dispute may be settled in accordance with the national legislation in force. In the complainant's view, this is a violation of Article 8 of Convention No. 87.
7. 1038. In its communication of 7 August 1992, the UPEIC alleges that the Government has violated Article 8 of Convention No. 87 by refusing to negotiate with the strike committee of the miners and copper works' group, contrary to the Act on the settlement of collective labour disputes.

B. The Government's reply

1. 1039. In its reply of 20 July 1992, the Government points out that the Act of 23 May 1991 provides for a settlement of collective labour disputes over employment conditions, wages and social benefits and defines the settlement procedures, including the right to call a strike, which involve only the workers represented by trade unions and an employer or several employers. It indicates that, under the Act, the Government may not be a party to the dispute given that, according to the Act, a party to a collective dispute may only consist of workers represented by a trade union or one or several employers which, by virtue of section 5, are "establishments defined under section 3 of the Labour Code as well as physical persons employing workers in order to carry out an economic activity". Section 3 of the Labour Code defines an establishment as being "an organisational unit employing workers, including a unit not possessing legal personality. It more particularly means a state-run undertaking, government department or any other state-run organisational unit, a cooperative society or social organisation".
2. 1040. The Government also stresses that according to the Act of 25 September 1981 concerning state-run enterprises, an enterprise of this nature is an independent entity, financially and administratively autonomous, involved in an economic activity and with the status of a legal entity. Its bodies are independent both from the standpoint of decision-taking and organising their economic activity, in accordance with the provisions of the Act and so as to implement to enterprise's objectives. In view of these factors, the Government's refusal to abide by the procedures defined by the Act of 23 May 1991 cannot be considered as a violation of the legislation on trade unions or of Article 8 of Convention No. 87.
3. 1041. The Government informs the Committee that on 29 May 1992, an "agreement on the dispute settlement proceedings between the State administration and the independent trade union Solidarnosc" was signed by the Minister of Labour and Social Policy of Poland and by the National Committee of "Solidarnosc" (of which a copy is enclosed). It points out that it intends concluding similar agreements with other trade union organisations.

C. The Committee's conclusions

1. 1042. This complaint concerns the alleged refusal of the Government of Poland to participate in proceedings to settle inter-works collective disputes, provided for under section 16 of the Act of 23 May 1991 on the settlement of collective labour disputes.
2. 1043. The Committee must note that it has already examined a case of a similar nature in 1990. (See 279th Report, Case No. 1545, paras. 288-314.) At that time, the Committee had considered that the difficulties encountered in settling the dispute in question in Case No. 1545 seemed to reveal a certain lack of clarity in the existing industrial relations system. (See 279th Report, para. 313.)
3. 1044. Subsequent to this complaint of 1990, a new Act on the settlement of labour disputes was adopted on 23 May 1991 and entered into effect 30 days later. This new Act was applied in the present dispute, in accordance with its section 28 - although the dispute had occurred before the Act was adopted.
4. 1045. In the Committee's opinion, it would seem that the adoption of this Act has not resolved all the problems liable to arise in the industrial relations system. It considers that the dispute in this particular case was not handled consistently throughout the proceedings. Indeed, it appears that the Government acted in the capacity of employer by participating in the initial negotiation and conciliation proceedings with the complainant organisation, and by subsequently signing a collective agreement covering employees in state-owned mining enterprises with another trade union organisation. Yet, it refused to be considered as the employer in arbitration proceedings requested by the Federation of Mining Unions.
5. 1046. The Committee is of the opinion that such an attitude is not conducive to the establishment an industrial relations system that enjoys the confidence of the parties concerned. Measures should therefore be taken to set up a stable and efficient disputes settlement system, with a view to removing any doubt as to who is the bargaining partner on the employer's side.
6. 1047. In this respect, the Committee notes that an agreement was signed by the Government with a trade union organisation concerning dispute settlement proceedings on 29 May 1992 to enable the settlement of collective disputes. It also notes that the Government intends signing similar agreements with other trade union organisations.
7. 1048. The Committee expresses the hope that agreements of this kind might be signed with other trade union organisations in order to facilitate the settlement of collective labour disputes. It reminds the Government that the ILO's advisory services are at its disposal, if considered necessary, to examine the industrial relations system in the light of the Conventions on freedom of association and collective bargaining.
8. 1049. The Committee notes that the Government has not yet replied to the allegations of the Occupational Union of Employees in the Copper Industry (UPEIC). It therefore requests the Government to send its observations in this respect.

The Committee's recommendations

1. 1050. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Noting that the present industrial relations system does not seem conducive to solving all the problems that might arise in this area, the Committee considers that a stable and efficient system should be established for the settlement of collective disputes, especially with a view to removing any doubt as to who is the bargaining partner on the employer's side.
   • (b) The Committee reminds the Government that the ILO's advisory services are at its disposal, if considered necessary, to examine the industrial relations system in the light of the Conventions on freedom of association and collective bargaining.
   • (c) The Committee requests the Government to send its observations on the allegations presented by the Occupational Union of Employees in the Copper Industry (UPEIC).