Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Poland (Ratification: 1957)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC) in a communication dated 6 September 2010 on the application of the Convention and the Government’s reply thereon.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join organizations. The Committee takes note of the information provided by the Government in its report in relation to the 2006 ITUC comments alleging that workers in state-owned enterprises in the health sector, and water and forestry industries had their employment contracts terminated and replaced by civil law contracts depriving them of the right to belong to a trade union. The Committee notes the Government’s indication that the legislation in the health sector does not specify the preferred form of employment for the practice of physicians, nurses and midwives (on the basis of employment contract or a civil law contract) and, thus, leaves the discretion for the parties concerned to decide on it. The Committee also notes that, according to the Government, the right to form and join trade unions is not granted for those individuals who have undertaken to provide employment on the basis of civil law contracts, since they cannot be considered employees under section 2 of the Labour Code. The Committee recalls that under Article 2 of the Convention, employers and workers, including workers without an employment contract, have the right to establish and join organizations of their own choosing without distinction whatsoever, with the sole exception of members of the armed forces and the police. The Committee requests the Government to provide information in its next report on any measures taken or envisaged to amend its legislation so as to bring it into conformity with the Convention.

Article 3. Right of organizations to elect their representatives in full freedom. The Committee recalls that it had previously requested the Government to amend section 49(6) of the Civil Service Act so as to ensure that public servants may exercise their trade union functions at all levels. The Committee notes the entry into force of the Act on Civil Service, 2008. It further notes that, according to its section 78(6), members of the civil service occupying senior positions cannot exercise trade union functions. The Committee considers that while legislation may restrict the right of civil servants in senior positions to join unions of lower grade employees, provided that the persons concerned have the right to form their own organizations to defend their interests, the right to elect representatives in full freedom, as well as the right to perform trade union functions, should be guaranteed to all workers in the public service in their respective trade union organizations. The Committee therefore requests the Government to take the necessary measures to amend section 78(6) of the Act on Civil Service so as to ensure that civil servants may exercise their trade union functions at all levels and to indicate measures taken or envisaged in this respect.

Denial of the right to strike of public servants. The Committee recalls that it had previously requested the Government to specify categories of employees whose right to strike was restricted. The Committee notes, in this respect, the relevant provisions of the new Act on Civil Service (2(2) and 78(3)) and Annex 1 to the Ordinance of the Prime Minister of 9 December 2009 “On the Definition of Clerical Positions, Required Professional Qualifications, Clerical Degrees for Civil Servants, Multipliers for Determining the Remuneration and Detailed Rules for Determining and Paying Other Benefits to Members of the Civil Service” provided by the Government. The Committee trusts that public servants who do not exercise authority in the name of the State may exercise their right to strike. The Committee requests the Government to provide any information, in its next report, on the practical application of the right to strike by such employees.