Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 344, Marzo 2007

Caso núm. 2474 (Polonia) - Fecha de presentación de la queja:: 28-FEB-06 - Cerrado

Allegations: The complainant organization alleges interference into trade union internal affairs and anti-union dismissals in two private companies. It further alleges lengthy judicial proceedings concerning cases of alleged violations of labour rights

1097. The complaint is contained in a communication dated 28 February 2006 from the Independent Self-Governing Trade Union (NSZZ) “Solidarnosc”. In a communication dated 10 March 2006, the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF) supported this complaint.

1. 1098. The Government forwarded its observations in a communication dated 6 October 2006.
2. 1099. Poland has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1100. In its communication dated 28 February 2006, the NSZZ “Solidarnosc” alleges interference into trade union internal affairs and anti-union dismissals in two private companies (UPC Poland Ltd, branch of UPC Holding Services BV, Holland, owned by Liberty Media Holding, United States, and Frito Lay Poland Ltd, branch of PepsiCo International, New York, United States). It further alleges lengthy judicial proceedings concerning cases of alleged violations of labour rights.
2. 1101. By way of background, the complainant explains the procedure for establishing a trade union and the protection against anti-union dismissal afforded by the Polish law. According to section 12 of the Law on Trade Unions of 1991, a trade union is formed by virtue of a resolution passed by at least ten persons who have the right to establish a union. To acquire legal personality, a trade union must be registered with the National Court Register. However, organizational units (such as enterprise-level trade unions), are registered in the regional structures of the NSZZ “Solidarnosc”. Once the employer is informed about the establishment of an enterprise trade union, the chairperson of the trade union is granted protection against dismissal. According to section 32 of the Law on Trade Unions, the employer cannot terminate the labour relationship with a trade union leader without the consent of the enterprise trade union committee. According to articles 12, 32 and 35 of the Law on Trade Unions, the employer committing an act of anti-union discrimination is liable to a fine or imprisonment. The complainant considers that while the above-described legislation is in compliance with international labour standards, in practice, trade union rights continue to be violated and submits its allegations of violations of freedom of association by the management of the two following private enterprises.
3. UPC Poland Ltd
4. 1102. Mr Marcin Kielbasa, the leader of the NSZZ “Solidarnosc” enterprise-level union, has been employed by UPS Poland Ltd (Warsaw branch) since 1 April 1995. On 1 June 2004, he was promoted to a position of acting Installation and Technical Service Director for a three-month probationary period. After successful completion of this period and positive evaluation he was confirmed in his post.
5. 1103. In July 2004, under the leadership of Mr Kielbasa, the employees of the company decided to establish an enterprise-level trade union of the NSZZ “Solidarnosc”. The employer was informed of the above in writing on 15 September 2004. Two weeks after receiving information about the establishment of a trade union, the employer invited the representatives of the NSZZ “Solidarnosc” (Mr Kielbasa and Mr Krzysztof Zgoda, the Director of the Organization Department of the National Commission of the NSZZ “Solidarnosc”) for a meeting to be held on 5 October 2004 in order to discuss “further cooperation”.
6. 1104. However, on the day of the meeting, Mr Kielbasa was given notice of dismissal on the grounds of structural changes and liquidation of his post. The employer also questioned the legality of the union’s establishment. The employer argued that the management had not been properly informed about the establishment of the union, making reference to the need to provide an extract from the registry, information about the number of trade union members and the list of their names.
7. 1105. The NSZZ “Solidarnosc” considers that the Chairperson of the trade union in UPC Poland Ltd was dismissed due to his trade union membership and activities. The complainant argues that the dismissal of Mr Kielbasa was unlawful, as he was dismissed without the consent of the enterprise-level trade union, as provided by the Polish legislation. The complainant further regards the actions of the enterprise management as an expression of a hostile policy towards the trade union and an attempt to eliminate any trade union movement from the enterprise.
8. 1106. As to the argument about the failure to transmit the necessary documents to inform the company management about the union’s existence, the complainant considers that all legal requirements imposed by the Law on Trade Unions have been fulfilled. While the Law does not oblige the union to provide any documents, the NSZZ “Solidarnosc” provided the employer with information on the registration of the enterprise trade union in the relevant regional structure of the NSZZ “Solidarnosc” and about the number of its members. From this moment on, the person representing the union is entitled to protection against dismissal.
9. 1107. On 7 October 2004, the NSZZ “Solidarnosc” applied to the National Labour Inspectorate to contest the breach of the labour contract with Mr Kielbasa. In its opinion dated 19 November 2004, the Inspectorate fully supported the argument of the illegal character of the dismissal. According to the Inspectorate, Mr Kielbasa, as trade union representative, was entitled to special protection under the labour law. UPC Poland Ltd was fined for breaching the law. The complainant argues, however, that fines imposed by the Inspectorate are of a very moderate level and therefore only cause a minor inconvenience to an employer and make it relatively easy for an employer to get rid of a trade union activist.
10. 1108. On 11 October 2004, the NSZZ “Solidarnosc” lodged a complaint with the Regional Public Prosecutor Office accusing the employer of anti-union discrimination. On 6 December 2004, the Regional Public Prosecutor refused to initiate proceedings arguing that given the circumstances, neither section 35 of the Law on Trade Unions (anti-union discrimination) nor article 218 of the Polish Penal Code (infringement of workers’ rights) had been violated. On 5 January 2005, Mr Kielbasa appealed this decision, but his appeal was rejected on 15 June 2005.
11. 1109. In November 2004, the Regional Labour Inspector also initiated proceedings against the employer for breach of a labour contract in violation of section 281(3) of the Labour Code.
12. 1110. On 6 October 2004, Mr Kielbasa filed a suit to the District Labour Court in Warsaw with a demand to reinstate him in his post. On 13 October 2005, the District Labour Court decided to transfer the case to the Regional Labour Court in Warsaw. As of the time of the complaint, no date for the hearing of this case had been set. The complainant considers that the hearing will not take place before June 2006.
13. 1111. The complainant considers that the excessive length of proceedings before the Polish courts, especially in cases concerning anti-union dismissals, constitutes in itself a denial of the right to justice and violates the principle of freedom of association. Despite the recent recommendations of the Committee on Freedom of Association in Cases Nos. 2395 and 2291, which also concerned the allegations of lengthy proceedings in courts, the Polish Government and institutions have not addressed this problem.
14. 1112. On 4 November 2004, the NSZZ “Solidarnosc” appealed to the Corporate Communications Director of UPC Holding Services BV in Holland to restore social dialogue in UPC Poland Ltd In its reply, the company stated that the union letter was forwarded to the relevant management of UPC Poland Ltd in Poland and that the latter would communicate with the NSZZ “Solidarnosc”. There was no other reaction from the part of UPC despite further appeals of the NSZZ “Solidarnosc”.
15. Frito Lay Poland Ltd
16. 1113. The complainant explains that Frito Lay Poland Ltd (PepsiCo International) employs about 400 workers, 171 of which were members of the enterprise trade union on 30 September 2005. The complainant indicates that the plant has a history of violation of workers’ rights. On 18 October 2004, the National Labour Inspectorate found evidence of various violations of workers’ rights related to working hours regulation, unpaid overtime and breaches of health and safety measures.
17. 1114. The complainant indicates that from the end of 2004, Mr Slawomir Zagrajek, the leader of the NSZZ “Solidarnosc” at Frito Lay Poland Ltd has been actively involved in a conflict concerning allegations of sexual harassment. At the end of 2004, three women workers, who allegedly had been sexually harassed by one of the enterprise’s managers, and five witnesses, were forced to resign under threat of disciplinary dismissal or were dismissed. Mr Zagrajek immediately started procedures aimed at the reinstatement of the dismissed workers and initiated criminal proceedings against the manager concerned. The case gathered a lot of media coverage. In January 2005, the NSZZ “Solidarnosc” organized an international action of solidarity that was joined, among others, by the International Confederation of Free Trade Unions (ICFTU), IUF and the European Federation of Food, Agriculture and Tourism (EFFAT) trade unions.
18. 1115. On 9 December 2005, the Polish tabloid Super Express published an article entitled “How to be paid for doing nothing” of a defamatory nature in relation to Mr Zagrajek. The article alleged that the union in Frito Lay Poland Ltd had fewer members than claimed by the Chairperson, who deliberately misled the employer in order to benefit from a full-time salary. On the same day, the management of Frito Lay Poland Ltd requested from each of the members of the NSZZ “Solidarnosc” trade union committee at Frito Lay Poland Ltd to disclose the number of members of the organization.
19. 1116. On 12 December 2005, workers of Frito Lay Poland Ltd were invited to one of the rooms where they were required to fill out a questionnaire concerning their trade union membership in circumstances that allowed easy identification of persons. Before entering the room, each of the workers was asked to present an identification card and to sign the list. Forms with a question “Were you a member of the enterprise-level trade union organization on 30 September 2005?” were filled out in the presence of two persons while no arrangements had been made to ensure the confidentiality and anonymity of the respondents. The fact that these two persons were lawyers hired by the employer created additional pressure and lack of security. The complainant considers that due to the lack of confidentiality, the majority of trade union members gave a negative answer.
20. 1117. Considering that the trade union membership was much lower than claimed by the union, Frito Lay Poland Ltd accused Mr Zagrajek of misleading the employer as to the real number of trade union members and dismissed him. Two weeks after Mr Zagrajek’s dismissal, the union membership fell to 60 workers. The complainant alleges that the dismissal of Mr Zagrajek was unlawful as it was done in the absence of consent from the trade union’s committee.
21. 1118. On 13 January 2006, a ready-to-fill form letter was distributed among workers. The letter contained the statements “I declare that I do not consider myself a member of the trade union” and “If therefore for any reason the enterprise trade union of the NSZZ “Solidarnosc” still considers me its member, I hereby state that it is my will to resign from my trade union membership as of today”. The letter was to be signed and returned to management within five days.
22. 1119. The complainant considers that the acts of the employer to verify trade union membership were clearly aimed at intimidating workers and were contrary to the legislation in force. In this respect, the complainant explains that the Law on Trade Unions provides for a possibility to apply to the court registry to verify the number of trade union members at a particular enterprise in the course of a non-litigious proceeding. As a consequence of the employer’s action, the number of trade union members has fallen from about 170 to 60 in the space of two weeks.
23. 1120. Furthermore, the complainant alleges that the management of the enterprise continues to violate freedom of association by persistently refusing to talk with Mr Zagrajek, despite the fact that he continues to chair the enterprise trade union. The employer also makes any contacts with the NSZZ “Solidarnosc” conditional upon the exclusion of Mr Zagrajek’s presence.
24. 1121. In conclusion, the complainant alleges that the actions undertaken both by the management of UPC Poland Ltd and Frito Lay Poland Ltd remain unpunished by the Polish Government or any public institution. Extremely slow proceedings make it impossible to enjoy the right to an effective remedy for acts of anti-union discrimination. During the time of proceedings that take on average three years, the dismissed trade unionists do not receive any financial or legal assistance neither from the employer nor from any public institution. The above described cases of anti-union climate in the enterprise, hostile attitude towards attempts of workers to organize, anti-union discrimination, as well as serious delays in proceedings concerning reinstatement in case of unlawful dismissal and lack of assistance for dismissed trade unionists where such dismissals are used by employers as a tool to eliminate trade unions from the enterprise constitute a serious threat for the rights guaranteed by Convention No. 98. The complainant considers that it is crucial that the Polish Government address the issue of effective protection of freedom of association and implementation of the ILO standards. More specifically, there is an urgent need to address the problem of the employers’ widespread lack of respect for regulation concerning special protection of the labour contracts of trade union leaders, as well as of excessively lengthy judicial proceedings concerning labour rights cases. The cases of anti-union discrimination should be subject to profound and detailed debate within the Polish Tripartite Commission. The Government should encourage the employers’ organizations to take an explicit position and adopt policies directed at counteracting anti-union discrimination at the company level.
25. B. The Government’s reply
26. 1122. In its communication of 6 October 2006, the Government provides the following details with regard to the protection of trade union leaders afforded by the Polish law. The special protection of the employment relationship of trade union leaders is set out in section 32 of the Law on Trade Unions of 1991. The employer may not unilaterally terminate the employment or change the conditions of employment to the disadvantage of an employee designated as a trade union representative, without the consent of the enterprise trade union committee. This protection comes to effect once the employer is informed of the establishment of a trade union and the designation of its representative. The number of employees covered by the protection depends on the representativeness of the organization concerned. The protection also covers members of the founding committee of a company organization (up to a maximum of three employees) indicated by name in a resolution of the founding committee. In the event that the enterprise trade union has not indicated the protected persons, the protection covers the chairperson of the union or the chairperson of the founding committee.
27. UPC Poland Ltd
28. 1123. The Government indicates that the case of dismissal of Mr Kielbasa from UPC Poland Ltd was heard by the Presidium of the Tripartite Commission for Social and Economic Affairs on 20 October and 6 November 2004. As a result of the discussions, the President of the Tripartite Commission asked the National Labour Inspectorate to carry out an inspection. According to the findings of the inspection, on 5 October 2004, the employer served Mr Kielbasa with three-months’ notice of termination of his employment contract on the basis of section 10(1) of the Act of 13 March 2003 on principles of termination of an employment relationship, due to reasons not attributable to the employee. The reason given for the termination of the contract was restructuring, leading to the liquidation of Mr Kielbasa’s position. The dismissal was served by the employer despite the information sent by Mr Krzysztof Zgoda, a member of the Presidium of the NSZZ “Solidarnosc”, to the President of UPC Cable Television Ltd informing the company management of the establishment of a union and naming Mr Kielbasa the representative of this union. Despite the fact that the information on the designation of Mr Kielbasa as trade union representative was transmitted to the employer by a member of the Presidium of the National Commission of NSZZ “Solidarnosc” and not by the founding committee of the enterprise trade union, as provided by the legislation in force, the Labour Inspector decided that the information sent to the employer was effective. Considering that the termination of Mr Kielbasa’s employment contract was unlawful, the Labour Inspector sent a request in this respect to the employer. At the same time, an application was sent to the court to provide for a penalty for committing an offence under section 281(3) of the Labour Code (gross violation of the labour legislation). The Labour Inspector also indicated that Mr Kielbasa used his right to lodge an appeal concerning the termination of his employment contract before the Labour Court.
29. 1124. Furthermore, on 18 October 2004, the Warszawa Mokotow District Prosecutor’s Office received the information submitted to the Lublin-South District Prosecutor’s Office by the Secretary of the East-Central Regional Committee of the NSZZ “Solidarnosc” concerning the allegedly unlawful dismissal of Mr Kielbasa, employed in the position of Installation and Technical Service Manager. According to the complainant, no notice of termination of Mr Kielbasa’s labour contract was ever sent to the enterprise trade union committee. His dismissal was therefore in breach of section 35(1), points 1–3, of the Law on Trade Unions.
30. 1125. The Warszawa Mokotow District Prosecutor’s Office examined the matter and established the following. In July 2004, the UPC Poland Ltd employees established a trade union organization and on 24 July 2004 it was registered with the East-Central Regional Committee of the NSZZ “Solidarnosc”. Mr Kielbasa was elected its Chairperson. On 15 September 2004, the employer was informed of the above by the National Commission of NSZZ “Solidarnosc”. The NSZZ “Solidarnosc” enterprise trade union was not obliged to be registered in the National Court Register separately, as, according to the regulations in force and the Charter of the NSZZ “Solidarnosc” the registration with the Regional Committee of the NSZZ “Solidarnosc” suffices. According to the documents submitted by UPC Poland Ltd, structural and organizational changes were planned for 2004 to comply with the decision to provide services related to digital telephony. In this respect, the need to liquidate the positions of regional directors and service and installation managers was considered. On 22 September 2004, UPC Poland Ltd addressed a letter to Mr Kielbasa and Mr Zgoda in which it stated that the union letter of 15 September 2004 sent by fax to the management did not meet formal requirements, therefore, the company was requesting the union to send the documents confirming the establishment of the union at UPC Poland Ltd and indicating the person entitled to represent it. In its letters of 23 and 30 September 2004, the employer once again repeated this request. According to the employer, no such documents were ever provided. At the meeting held on 5 October 2004, the employer was told by Mr Zgoda that the documents the employer was asking for concerned the union’s internal affairs. UPC Poland Ltd therefore proceeded to the verification of the registry of trade unions kept by the National Court Register in Warsaw, Lublin and Gdansk. All attested that the enterprise trade union was not registered. The acts of the employer were justified by the fact that in the course of the organizational changes at UPC Poland Ltd, the company Management Board was planning to execute its former decision concerning the termination of the employment contract with Mr Kielbasa, due to the reorganization of UPC operational–technical division. At the same time, that is, from September to October 2004, for the same reason, the employment contracts of 30 UPC employees were terminated and the employment conditions of 280 employees were modified. Based on the above, the Warszawa Mokotow Regional Prosecutor’s Office refused to start proceedings against UPC Poland Ltd. The Prosecutor considered that the behaviour of the UPC Management Board bore no features of a prohibited act, as the activities of the members of the Management Board were not characterized by maliciousness or persistent violations of the labour law. It was also stated that there was no evidence that the UPC Management Board discriminated the employee due to his trade union membership or that it hindered trade union activities.
31. 1126. The aggrieved party, Mr Kielbasa, lodged a complaint against the above decision in the statutory period, claiming that the decision contained factual mistakes and that it did not explain all the circumstances significant for the case. The plaintiff claimed in particular that it was wrongly concluded that after 1 June 2004 he was employed in the position of Service and Installation Manager. Starting from 1 September 2004, he was employed in Warsaw (headquarters) in a position which was only similar by name – Installation and Technical Service Manager – and which was not subject to liquidation, contrary to the posts of service and installation managers. Moreover, according to Mr Kielbasa, the Regional Prosecutor wrongly decided that UPC Poland Ltd did not receive the necessary documents from the trade union, informing about the establishment of a trade union and designating the person covered by the special employment protection. The complainant claimed that the necessary documents were sent and only the list of names of trade union members was not provided. To corroborate this information, the plaintiff enclosed a copy of the fax sent to UPC on 1 October 2004 by the Secretary of the East-Central Region Committee of the NSZZ “Solidarnosc”.
32. 1127. The Warsaw Regional Prosecutor did not concur with the complaint and by a letter dated 16 March 2005, sent the complaint to be heard by the Court. In a decision of 17 June 2005, the District Court of Warszawa Mokotow, Third Criminal Department, did not consider Mr Kielbasa’s complaint and maintained the decision in force.
33. 1128. The Warsaw Prosecutor of Appeal, using his authority of official supervision, reviewed the files of the Warszawa Mokotow Regional Prosecutor relating to the present case. According to the Warsaw Prosecutor of Appeal, although the decision of the Regional Prosecutor was maintained in force by the Court, its legitimacy raises doubts, in particular due to the fact that the decision was made prematurely, without explaining all the significant circumstances related to the proceedings. On the basis of the analysis of the materials gathered in the course of the control procedures, the Prosecutor of Appeal decided that in that case, preliminary proceedings must be carried out in order to decide whether the termination of the employment contract with Mr Kielbasa, the Chairperson of the enterprise trade union, an employee covered by special protection, was an instance of anti-union discrimination. In view of the above, the Prosecutor of Appeal, setting out specific guidelines, had requested the District Prosecutor to immediately begin preliminary proceedings.
34. 1129. On 6 June 2006, at the request of the Warszawa Mokotow District Prosecutor, Warszawa II police headquarters started preliminary proceedings in the case related to offences under section 35(1), point 3, of the Law on Trade Unions (anti-union discrimination) and section 218, point 1, of the Penal Code (malicious breach of employee rights). Currently, the police was gathering additional documents and questioning witnesses.
35. Frito Lay Poland Ltd
36. 1130. With regard to the case of dismissal of Mr Slawomir Zagrajek, the Chairperson of the trade union at Frito Lay Poland Ltd, the Government indicates the following. On 28 December 2005, the District Prosecutor’s Office in Grodzisk Mazowiecki received a communication from the Helsinki Foundation for Human Rights alleging that the management of Frito Lay Poland Ltd hindered the activities of the trade union and violated the provisions of the Act on Protection of Personal Data. Mr Zagrajek also submitted a complaint on the same matters. According to the testimony of Mr Zagrajek, between 9 and 12 December 2005, the managers of Frito Lay Poland Ltd, distributed among the employees a questionnaire on their union membership. The employees completed the questionnaire in the presence of two people, including a notary. Fearing repressive measures, many employees wrote that they were not members of any trade union. With his complaint, Mr Zagrajek enclosed the declarations of the persons who, for fear of repressive measures on behalf of the employer, gave negative answers to the questions. On the basis of the gathered answers, Mr Zagrajek was dismissed for providing false information on the real number of trade union members. Based on the above, the District Prosecutor of Grodzisk Mazowiecki requested the police headquarters in Grodzisk Mazowiecki to start a relevant investigation.
37. 1131. By virtue of the decision of the District Vice-Prosecutor in Warsaw of 12 January 2006, to avoid the accusation of lack of objectivity by the District Prosecutor in Grodzisk Mazowiecki, the case was transmitted to the Warszawa-Ochota District Prosecutor who was presently carrying out the investigation. In order to verify the number of members of the NSZZ “Solidarnosc” at Frito Lay Poland Ltd, the Prosecutor sent a motion to the regional branch of the NCZZ “Solidarnosc” with a request to provide information on the registration of its enterprise-level trade union. A request was also sent to the Treasurer of the Frito Lay Poland Ltd trade union to provide information related to the number of trade union members on the basis of contributions paid.
38. 1132. On 19 December 2005, Mr Ron Oswald, the General Secretary of the IUF sent a letter to the Polish Prime Minister, describing the situation at Frito Lay Poland Ltd from the point of view of employees and asked the Prime Minister to intervene in order to prevent anti-trade union acts. The Prime Minister transmitted the case to the Minister of Labour and Social Policy. The Minister of Labour analysed the case and requested the National Labour Inspectorate to examine the observance of the labour legislation by Frito Lay Poland Ltd. According to the findings of the National Labour Inspectorate, by a letter dated 9 December 2005, the management of Frito Lay Poland Ltd informed the enterprise trade union of its intention to terminate the employment contract with Mr Zagrajek, the Chairperson of the trade union, and requested the union to approve the dismissal. By a letter dated 11 December 2005, the trade union committee informed the employer of its refusal to approve the dismissal. On 14 December 2005, the employer, despite the lack of trade union approval, served Mr Zagrajek with a letter, informing him of termination of his employment contract without notice under section 52(1) of the Labour Code. The letter mentioned the following reasons for his dismissal: misleading the employer as to the real number of trade union members, abuse of the right to be exempted from duty by not adapting the level of exemption to the number of trade union members and therefore receiving undue salary.
39. 1133. The Government indicates that the legitimacy of termination of the contract of employment may only be decided by the Labour Court. However, the National Labour Inspectorate assured the Minister of Labour that it would continue monitoring the application by Frito Lay Poland Ltd of the labour legislation. In view of the opening by the District Prosecutor in Grodzisk Mazowiecki of relevant judicial proceedings, the Minister of Labour also called upon the Minister of Justice to give it priority.
40. 1134. At the same time, the Minister of Labour applied to the Voivode of Mazowsze, as the President of the Voivodship Social Dialogue Commission, to deal with the matter through the Commission. The Presidium of the Voivodship Social Dialogue Commission discussed the case of Frito Lay Poland Ltd on 2 March, 11 May and 14 July 2006. On 11 May, the Presidium heard the representatives of the management of Frito Lay Poland Ltd and the company trade unions: the NSZZ “Solidarnosc” and the OPZZ Labour Confederacy. The Presidium decided that Mr Jerzy Zielinski, representing the Business Centre Club (employers’ union at the Commission), should visit the factory in Grodzisk. The results of the visit were presented during the meeting of the Presidium on 14 July 2006.
41. 1135. In conclusion, the Government states that the Minister of Labour has used all the available legal tools under the national legislation in respect of the allegations of violation of trade union rights at UPC Poland Ltd and Frito Lay Poland Ltd In compliance with the recommendation of the International Labour Office, the Minister of Labour also applied to the Polish Lewiatan Confederation of Private Employers to comment on the allegations submitted by the NSZZ “Solidarnosc”, which were annexed to the Government’s reply.
42. 1136. In conclusion, the Government indicates that both cases were now being investigated by the independent courts. At the same time, the Government expressed hope that the situation of the respect of trade union rights in Poland would improve with the approval of a national social agreement, which was being negotiated by the Government and the social partners.
43. 1137. In its reply dated 23 May 2006, the Polish Confederation of Private Employers indicates that it had consulted both UPC Poland Ltd and Frito Lay Poland Ltd. With regard to the first enterprise, a judicial proceeding was still before the Labour Court.
44. 1138. As concerns Frito Lay Poland Ltd, the Confederation considers that the existing legislation fails to provide a direct method of verifying the data supplied by the trade union in connection with the employer’s obligations arising from the Trade Unions Act of 1991. This shortcoming can only be rectified by the legislator. In this respect, the Confederation has been considering requesting the competent parliamentary committee to correct the existing law.
45. 1139. As to the particulars of this case, the Confederation indicates that for a number of years, the NSZZ “Solidarnosc” had claimed a membership of over 150. This had put the employer in a position where he was forced to relieve the Chairperson of the trade union committee from his duties while paying him a full remuneration for his work. However, on several occasions, it came to the attention of the management that the number of trade union members was exaggerated and that the union did not represent more than several dozen workers. At that time, the management was unable to assess the credibility of this information and chose not to take any action.
46. 1140. Following the publication, on 9 December 2005, of an article in the Super Express daily magazine indicating that Mr Slawomir Zagrajek, the Chairperson of the NSZZ “Solidarnosc” enterprise trade union, had been previously convicted of falsifying documents and dismissed from his two previous places of employment, the employer decided to take action. The editorial office of the Super Express informed the company that Mr Zagrajek did not seek a retraction on the article nor did he file a civil lawsuit against the magazine. Once the charges of obtaining remuneration under false pretences and falsifying the number of trade union members became public, the employer requested that the enterprise trade union committee respond and assist it in verifying the actual number of union members. The committee refused stating that it was obliged to keep all personal details of trade union members anonymous.
47. 1141. The employer repeatedly called upon the regional organization of the trade union to help resolve the conflict and kept the NSZZ “Solidarnosc” committee of the Mazowsze region informed of its actions in writing on an ongoing basis. The employer also made multiple telephone calls to representatives of the regional and national organizations of the NSZZ “Solidarnosc” proposing to resolve the problem together. To their regret, the NSZZ “Solidarnosc” representatives consistently declined to cooperate.
48. 1142. On 28 December 2005, Frito Lay Poland Ltd sent an official letter to Mr Ron Oswald, the Secretary-General of the IUF, in which it explained in detail the background of the conflict and the course of events. The employer had never received any reply. According to the Polish Confederation of Employers, Mr Oswald addressed a letter to the President of the Polish Council of Ministers, although neither he nor any other representative of the IUF contacted the employer to ascertain the facts prior to forming his opinion on the subject.
49. 1143. Frito Lay Poland Ltd stressed that the procedure of verification of trade union membership was voluntary and anonymous and was overseen by the local public notary (a person of public trust) and his assistant. The method was designed not to disclose the identities of individual trade union members but rather to determine their total number. Each employee was given a chance to reply to the questionnaire anonymously stating whether or not he or she was a trade union member without revealing his or her identity. The only time the identity of the employees was disclosed was when they collected the questionnaire forms, i.e. immediately before entering the room in which the survey took place. The door check was necessary to keep out non-employees and prevent any single employee from collecting multiple forms. No employer’s representatives were present in the room. The layout and the size of the room made it possible to fill out the questionnaire without it being seen. The employees deposited the completed forms in a box. The participation in the verification procedure was voluntary. None of the employees were required to participate and, indeed, a number of employees did not (387 employees out of a total of 418 employed in the company voluntarily took part in the procedure). Only six of them indicated they were trade union members. The outcome left no doubt that the union membership was substantially lower than claimed by Mr Zagrajek. Just three weeks later, the survey outcome was confirmed by another statement of the enterprise trade union committee, which was submitted to the employer on 8 January 2006. According to this statement, as of 31 December 2005, 70 employees were members of the enterprise trade union, and not 171 as previously claimed. In view of the above, the employer disciplinarily discharged the person who continuously violated the law by obtaining remuneration from the employer under false pretences. In addition, on 20 December 2005, the employer reported Mr Zagrajek’s violations of section 286(1) of the Criminal Code and section 271(1) of the Code of Criminal Procedure.
50. 1144. The employer stresses that despite repeated efforts, all attempts to discuss the case with the representatives of the NSZZ “Solidarnosc” were turned down. The employer had also invited the representatives of the NSZZ “Solidarnosc” to visit the company at the time of the described procedure of verification so as to allow them to assess whether the procedure was fully voluntary, anonymous and lawful. Regrettably, the union declined the invitation.
51. 1145. The employer further indicates that Mr Zagrajek was not re-elected in his post during the elections held in March 2006. Current relations between the enterprise committee of the NSZZ “Solidarnosc” and the management of Frito Lay Poland Ltd are positive. The new trade union committee regularly meets with the company management. The most recent meetings were held on 14 and 31 March 2006. In their course, the parties decided on the rules for cooperation between trade unions and the company management. The parties also agreed on the appropriation of the Social Fund and discussed the method of collecting trade union dues.
52. 1146. In March 2006, another trade union was established at the enterprise. Both trade unions were treated equally and participated on an equitable basis in resolving issues concerning enterprise employees. The enterprise NSZZ “Solidarnosc” trade union has currently 42 members. Their identities have not been revealed to the employer. The other union has 38 members and their trade union dues are transferred to the union account by the employer.

C. The Committee’s conclusions

1. 1147. The Committee notes that this case concerns alleged violations of freedom of association by the management of two private companies (UPC Poland Ltd and Frito Lay Poland Ltd), namely: acts of interference in trade union affairs and anti-union dismissals. The complainant also alleges the excessive length of proceedings examining complaints alleging violations of trade union rights.
2. 1148. As regards the situation at UPC Poland Ltd, the Committee notes that the Government does not refute the substance of the allegations as presented by the complainant and which can be summarized as follows. Mr Marcin Kielbasa, the leader of the enterprise trade union was dismissed in October 2004. While the complainant maintains that his dismissal was motivated by his trade union activities, the employer claimed that the reason for his dismissal was related to the structural and organizational changes within the enterprise. The Committee also notes that while the National Labour Inspectorate concluded that the dismissal was illegal, due to the fact that there was no prior approval from the enterprise trade union committee, as provided for by the legislation, the Office of the Regional Public Prosecutor refused to give effect to the union complaint and to initiate relevant proceedings. In the Prosecutor’s view, the dismissal was the result of the restructuring of the enterprise. When the union contested the Regional Prosecutor’s decision, the complaint was referred to the District Court, which maintained the decision of the Regional Prosecutor. Mr Kielbasa filed a suit to the Labour Court in October 2004. However, as of the time of the complaint no hearing date was scheduled. The Committee notes the complainant’s allegation that, while a fine for violation of labour legislation was imposed on the employer, following an inspection carried out by the Inspectorate, in general, such fines were relatively moderate and made it easy for an employer to dismiss a trade union leader. The Committee notes the Government’s indication that the Warsaw Prosecutor of Appeal reviewed the files of the Regional Public Prosecutor relating to the present case and considered that, although the decision of the Regional Public Prosecutor was maintained by the Court, its legitimacy raises doubts. The Prosecutor of Appeal had therefore requested the relevant District Prosecutor to further investigate this case. On 6 June 2006, the preliminary proceeding began.
3. 1149. As regards the situation at Frito Lay Poland Ltd, the Committee notes that the complainant alleges that Mr Slawomir Zagrajek, the leader of the enterprise trade union was accused by the employer of intentionally misinforming the company’s management as regards the number of trade union members and was dismissed without the approval of the union committee. The complainant further alleges that the gathering of individual data on trade union membership, on the results of which the employer had later based the decision to dismiss Mr Zagrajek, was conducted in a manner violating confidentiality (on 12 December 2005, workers were requested to fill out a questionnaire concerning their trade union membership in the presence of two persons representing the employer) and had a deterring effect on trade union members. Furthermore, on 13 January 2006, a ready-to-fill form letter was distributed among the employees of the enterprise attesting to their non-membership in the union, to be signed and returned to the enterprise management. According to the complainant, such intimidating acts lead to the dropping of trade union membership from 170 to 60 members in the space of two weeks.
4. 1150. The Committee notes that here too, the Government does not challenge the substance of the allegations but indicates that only the Labour Court can make appropriate decisions with regard to the legality of the termination of the employment contract of Mr Zagrajek. The Committee also notes the comments of the Lewiatan Polish Confederation of Private Employers, which include the position of the management of Frito Lay Poland Ltd that they did not violate national legislation, that the procedure of verification of trade union membership was voluntary and anonymous and was a result of reasonable doubts over Mr Zagrajek’s claims with regard to the number of trade union members. It further notes the concerns of the Polish Confederation of Private Employers that the current legislation provides no means for verifying trade union membership.
5. 1151. The Committee notes the Government’s further indication that the National Labour Inspectorate assured the Minister of Labour that it would continue monitoring the application by Frito Lay Poland Ltd of the relevant labour regulations. In view of the opening by the District Prosecutor in Grodzisk Mazowiecki of judicial proceedings in the case of the respect of trade union rights at Frito Lay Poland Ltd, the Minister of Labour also called upon the Minister of Justice to give it priority. The Committee further notes the Government’s indication that the Minister of Labour applied to the Voivode of Mazowsze, in his capacity as President of the Voivodship Social Dialogue Commission, to deal with the matter through the Commission. The Presidium of the Voivodship Social Dialogue Commission discussed the case of Frito Lay Poland Ltd on 2 March, 11 May and 14 July 2006 during which the representatives of the management of Frito Lay Poland Ltd and the company trade unions, as well as Mr Jerzy Zielinski, representing the Business Centre Club (employers’ union at the Commission) previously mandated to visit the enterprise and provide his impressions, were heard.
6. 1152. In conclusion, the Government states that both these cases are now being investigated by independent courts. At the same time, the Committee notes that the Government expresses the hope that the situation of the respect of trade union rights in Poland will improve with the approval of a national social agreement, which was being negotiated by the Government and the social partners.
7. 1153. The complainant organization alleges in both cases anti-union dismissals and unjustified delays in the court proceedings for alleged violations of workers’ rights. Given the nature of this case, the Committee must emphasize that no person should be prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 771]. One of the fundamental principles of freedom of association is that workers should enjoy adequate protection against acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 799].
8. 1154. As regards the penalty for anti-union dismissals, which, according to the complainant are insufficient to act as a deterrent, the Committee considers that it would not appear that sufficient protection against acts of anti-union discrimination, as set out in Convention No. 98, is granted by legislation in cases where employers can in practice, on condition that they pay the compensation prescribed by law for cases of unjustified dismissal, dismiss any worker, if the true reason is the worker’s trade union membership or activities [see Digest, op. cit., para. 791].
9. 1155. While taking due note of the Government’s statement that Mr Kielbasa’s case was currently under review and that the case of Mr Zagrajek and the alleged violations of trade union rights at Frito Lay Poland Ltd are also under investigation, the Committee must also observe that these cases have been pending since October 2004 and December 2005 respectively. The Committee recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned. Justice delayed is justice denied [see Digest, op. cit., paras 105 and 826]. The Committee expects that the measures now being taken by the Government will effectively speed up the judicial proceedings concerning the dismissal of the two trade union leaders and requests the Government to keep it informed of the progress of the proceedings as well as their final outcome.
10. 1156. The Committee observes that the Government has reacted to the concerns raised in respect of the enterprises UPC Poland Ltd and Frito Lay Poland Ltd by referring the issue to the Tripartite Commission for Social and Economic Affairs, as regards the first enterprise and to the Voivodship Social Dialogue Commission, as regards the latter. Expressing its deep concern about the labour relations situation in the companies in question, and taking into account the fact that the Committee had in the past examined two cases concerning Poland involving similar issues (see Cases Nos. 2291 and 2395, 333rd and 337th Reports respectively), the Committee urges the Government to reiterate and intensify its efforts, under the auspices of the Tripartite Commission, to ensure that the principles of freedom of association and collective bargaining are applied, particularly as regards the effective recognition of unions and the provision of adequate protection against acts of anti-union discrimination and interference. The Committee firmly expects that the situation of the respect of trade union rights in Poland would indeed improve with the approval of a national social agreement between the Government and the social partners and requests the Government to keep it informed of the developments in this regard.
11. 1157. Finally, the Committee observes the concerns raised by the Confederation of Private Employers in respect of the lack of legal provisions for verifying trade union representativeness and requests the Government, in consultation with the social partners, to provide for an impartial and independent method for verifying trade union representativeness in order to avoid the problems that occurred in the case of Frito Lay Poland Ltd.

The Committee's recommendations

1. 1158. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee expects that the measures now taken by the Government will effectively speed up the judicial proceedings concerning the dismissal of two trade union leaders (Mr Marcin Kielbasa and Mr Slawomir Zagrajek) and requests the Government to keep it informed of the progress of the proceedings as well as their final outcome.
   • (b) The Committee urges the Government to reiterate and intensify its efforts, under the auspices of the Tripartite Commission, to ensure that the principles of freedom of association and collective bargaining are applied, particularly as regards the effective recognition of unions and the provision of adequate protection against acts of anti-union discrimination and interference. The Committee firmly expects that the situation of the respect of trade union rights in Poland will indeed improve with the approval of a national social agreement between the Government and the social partners and requests the Government to keep it informed of the developments in this regard.
   • (c) The Committee requests the Government, in consultation with the social partners, to provide for an impartial and independent method for verifying trade union representativeness order to avoid the problems that occurred in the case of Frito Lay Poland Ltd.