Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations of the National Commission of the Independent and Self-Governing Trade Union (NSZZ) “Solidarnosc” received on 26 August 2015, which mainly relate to legislative issues being raised by the Committee. The Committee notes the observations from the International Trade Union Confederation (ITUC), which concern the alleged prohibition of displaying union flags and the alleged prohibition or restriction of, and violent police intervention in, demonstrations and pickets, as well as the Government’s comments thereon. The Committee wishes to generally recall in this regard that the display of union flags constitutes a legitimate trade union activity, and that the prohibition of and police intervention in, pickets and demonstrations is justified only if they cease to be peaceful or otherwise constitute a threat to public order. The Committee also notes the observations of the International Organisation of Employers (IOE) received on 1 September 2015, which are of a general nature.

The Committee notes that an ILO mission visited Poland from 14 to 16 May 2014 following the Government’s request for technical assistance. It also notes with interest the establishment of the Social Dialogue Council, a new tripartite institutional forum replacing the Tripartite Commission for Social and Economic Affairs.

Article 2 of the Convention. Right of workers, without distinction whatsoever, to establish and join trade unions of their own choosing. In its previous comments, the Committee noted that, according to section 2(1) of the 1991 Act on Trade Unions, the right to form and join trade unions was not granted to those persons who had entered into an employment relationship on the basis of civil law contracts, since they did not fall under the definition of “employee” in section 2 of the Labour Code. The Committee had welcomed the initiatives on potential improvements to the legislation and hoped that any legislative reform would bring national law into conformity with the Convention. The Committee notes with interest, on the basis of the information provided by the Government in its report, that: (i) following the technical advice provided by the ILO mission on the possibility and implications of extending the right to form and establish trade unions taking into account the specificity of work performed under civil law contracts, the Ministry of Labour and Social Policy prepared in 2014 a new draft Act amending the Act on Trade Unions, which extends the right to establish and join trade unions to persons performing outwork, the self-employed and those who work on the basis of civil law contracts; (ii) in June 2015, following a motion submitted by All-Poland Alliance of Trade Unions (OPZZ), the Constitutional Tribunal passed a verdict holding that section 2(1) of the Act on Trade Unions is contrary to the Constitution of the Republic of Poland, as the reference to the definition of “employee” in section 2 of the Labour Code does not guarantee the possibility of associating in trade unions to all people covered by the constitutional guarantees; and that the legislator should extend the right to organize to all persons performing paid work on the basis of a legal relationship; (iii) the Ministry of Labour and Social Policy is currently working to analyse the consequences of the judgment for the scope and coherence of the new draft Act; and (iv) due to its much larger personal scope, the draft Act introduces a systemic change that requires consultations with the social partners, which will be undertaken in the newly established Social Dialogue Council. The Committee trusts that the draft Act will be adopted in the near future and will guarantee the right of all workers, without distinction whatsoever, including workers without an employment contract, to establish and join organizations of their own choosing, with the sole exception of members of the armed forces and the police. The Committee requests the Government to provide information on any progress made in this respect.

Article 3. Right of organizations to elect their representatives in full freedom. The Committee had previously noted that, according to section 78(6) of the Act on Civil Service of 21 November 2008, members of the civil service occupying senior positions cannot exercise trade union functions. The Committee had hoped that the announced revision of the Act on Civil Service, in particular its section 78(6), would be undertaken in the near future so as to bring it into line with the Convention. The Committee notes the Government’s indication to abide by its intention to align section 78(6) with Article 3 of the Convention during the upcoming amendment of the Act on Civil Service. The Committee reiterates that, while legislation may restrict the right of civil servants in senior positions to join unions of lower grade employees, the persons concerned should have the right to form their own organizations to defend their interests and the right to elect representatives in full freedom; and all workers in the public service should have the right to perform trade union functions in their respective trade union organizations. The Committee firmly hopes that, during the upcoming amendment of the Act on the Civil Service announced by the Government, full account will be taken of the Committee’s comments with respect to the need to amend section 78(6) so as to ensure the respect of the principles mentioned above.

Right of organizations to organize their activities in full freedom and to formulate their programmes. The Committee previously noted that section 78(3) of the Act on Civil Service forbids civil servants to participate in strikes or actions of protest interfering with the normal functioning of the office. In this regard, the Committee notes the Government’s indication that: (i) the limitations to the right to strike are contained in section 19 of the 1991 Act on Collective Labour Disputes, especially in its section 19(3); (ii) the term “civil service corps” used by the Act on Civil Service refers to a specific form of public service; unlike in some countries, where the civil service corps covers almost the whole public sector, including teachers, health care and local government employees, its scope is rather limited in Poland, and covers only about 121,400 persons employed in government administration offices; (iii) since the civil service corps is formed by officials employed in organizational units with a great importance for the performance of state activities, the prohibition of industrial action for the civil service corps in section 78(3) of the Act on Civil Service as well as the denial of the right to strike under section 19(3) of the Act on Collective Labour Disputes with regard to the members of the civil service corps and employees in courts and prosecutors’ offices, appear to be justified due to public interest and fall within the catalogue of permissible exclusions under the Convention; and (iv) with reference to the complaint filed by NSZZ “Solidarnosc” with the Constitutional Tribunal on this issue, the Government is awaiting resolution by the Constitutional Tribunal before it embarks on any legislative action.

The Committee wishes to generally recall that restrictions to the right to strike in the public sector should be limited to public servants exercising authority in the name of the State. The Committee trusts that the Government will consider establishing a procedure for determining exactly which public servants enumerated in section 19(3) of the Collective Labour Disputes Act and in section 2 of the Act on the Civil Service are exercising authority in the name of the State and for whom the right to strike could therefore be restricted under section 78(3) of the Act on the Civil Service and section 19(3) of the Collective Labour Disputes Act. In this regard, the Committee suggests that a tripartite body could be established with the responsibility of identifying the relevant public servants, and that any disagreement could be settled by an independent body. The Committee also requests the Government to supply a copy of the judgment of the Constitutional Tribunal as soon as it is handed down.

Lastly, the Committee notes with interest the detailed statistical information provided by the Government, according to which, in 2014, there were 12,900 active trade union organizations, with a total of 1.6 million members (5 per cent of adult population), and the majority of enterprise unions operated within public sector entities (66 per cent).