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

Individual Case (CAS) - Discussion: 1989, Publication: 76th ILC session (1989)

The Government has communicated the following information:

In the report submitted to the International Labour Office in February 1989 the Government informed about the opening of the Round Table Conference aiming, inter alia, at reaching agreement on a new pluralistic model of trade unions. The purpose of this written communication is to present up-to-date information on the results of the Round Table (ended on 5 April 1939) and on subsequent changes in legislation during the period April-May 1939.

The participants of the Round Table agreed, inter alia, that in order to ensure the workers the right to establish and join the trade unions of their own choosing and, particularly, to enable legal activity of the Independent Self-governing Trade Union "Solidarity" and of other trade union movements. the Trade Unions Act of 8 October 1982 should be amended without delay and that respective amendments would:

- ensure that free establishment and registration by workers of the trade unions, including the registration of the nation-wide trade unions, as well as free creation of the trade union organisational structures on branch, territorial, occupational or other principles, in accordance with the ILO Conventions, particularly Conventions No. 87 and 98,

- determine principles of co-operation of trade unions in enterprises in matters connected with collective and individual representation of rights and interests of workers in their relations with the manager of the enterprise and organs of the workers' self-management.

- ensure equality of all the trade unions, including in particular, equal rights of trade unions which are representative for workers of the majority of enterprises.

On 7 April 1989 the Parliament (Seym) adopted the Act amending the Trade Union Act, 1982. Amendments took into account all above-mentioned agreed points.

It should also be noted that immediately before their adoption, the Government consulted the ILO concerning the main provisions of the Amending Act.

Participants of the Round Table recognised also the necessity of carrying out further amendments of the Trade Union Act 1982, particularly of its articles concerning collective disputes, the right to strike and the categories of employees not allowed to form and join trade unions.

On 7 April 1989 the Seym also adopted the new Act on trade unions of individual farmers, implementing the principles of the trade union pluralism in agriculture. In accordance with this Act, individual farmers running farms and their family members working with them on the farm are entitled to establish and join trade unions of individual farmers for the protection of their rights and professional interests. Trade unions of individual farmers are self-governing and, particularly, they have the right to determine the aims and programmes of their activity, adopt statutes and other acts concerning their activity as determine their internal organisational structures. They are independent and are not subject to supervision and control of the state administrative authorities. These authorities should refrain from any activity leading to the limitation of the independence of the trade unions in their activity carried out in accordance with law.

Trade unions functioning on the basis of this Act have the rights and obligations accorded by the law to socio-occupational organisations of farmers in the field of representation and defence of rights and interests of farmers.

The Act recognises the principle of equal treatment by the State, and the self-management organs of trade unions of farmers and socio-occupational farmers' organisations, in the field of their activity.

As a result of the above-mentioned changes in legislation, the following trade unions have been registered by Polish courts: Independent Self-Governing Trade Union "Solidarity", on 17 April 1989; Independent Self-Governing Trade Union of Individual Farmers "Solidarity", on 20 April 1989. These trade unions are nation-wide organisations.

The Government wishes also to inform that on 7 April 1989, the Seym adopted one more Act - the Act on Associations - which abrogated the Decree of the President of the Polish Republic of 1932. The new Act creates conditions for full implementation of the freedom of association guaranteed by the Constitution. It ensures to all citizens, whatever their religion or opinion, equal rights of active participation in the public life of the country and of expressing different views and realising their interests. An association is a voluntary, self-governing and durable organisation of non-lucrative character. It independently determines its aims, programmes of activity and organisational structures as well as adopts internal acts concerning its activity. It is prohibited to organise associations based on the principle of absolute obedience of members to the authorities of the association. The Act provides that no one may be forced to join the association or leave it. No one may be punished due to his membership of the association or for staying outside it. The right of association may be limited only in cases provided for by the law, justified by national safety reasons, public order, health protection, public morality or reasons of protection of rights and freedoms of other persons.

In addition, a Government representative referred to the written information which had been submitted to the ILO. This information related to recent changes directly affecting the implementation of Conventions Nos. 11, 87 and 98.

As far as Convention No. 87 was concerned, the Act of 7 April 1989 is of primary importance. It abolishes former restrictions on the establishment and functioning of trade unions - especially the stipulation that there could be only one trade union at each enterprise. It ensures freedom in the choice of principles on which the structure of trade unions should be built, including in particular the right to establish unions on a territorial basis. It ensures the equality of all trade unions. It sets out the principles of co-operation between trade unions in enterprises. Also on 7 April 1989 legislation was adopted to give effect to the principle of trade union pluralism in agriculture. Finally, an Act of 24 May 1989 makes provision for the re-employment of persons who had been dismissed for trade union activities after 13 December 1981. This last provision has a direct relation with the need for protection against acts of anti-union discrimination which is incorporated in Convention No. 98.

The speaker then referred to the Act on Associations which was also adopted on 7 April 1989 and which created conditions for the full implementation of the principle of freedom of association guaranteed by the Constitution of Poland. He stressed also the importance of the Act on Oblivion of 29 May 1989 which was not just a simple amnesty provision, but rather it entirely obliterates all convictions imposed in respect of strikes of other protests committed after 31 August 1980.

Both of these latter measures were consistent with the spirit of recent political and legal changes in Poland. They were helping to create more appropriate conditions for the implementation of the Conventions, and in a sense could be regarded as guarantees of their full implementation.

He noted that the independent Self-Governing Trade Union "Solidarnosc" had been registered on 17 April 1989, and that a parallel organisation for individual farmers had been registered on 20 April 1989. These bodies had been registered in addition to existing unions, most of which were affiliated to the All-Polish Alliance of Trade Unions. All of the most representative unions in the country were part of his country's delegation to the present International Labour Conference.

Referring to employers' organisations, he noted that in January 1989 the Association of Employers in Poland had been established. This organisation combined employers from the state, cooperative and private sectors.

Turning to the further intentions of the Government, it had been agreed at the Round Table Conference that further changes to the Trade Union Act, 1982, would be introduced at a later stage. These changes would deal with collective disputes and strikes - and in particular would simplify procedures associated therewith. It would also deal with those groups of employees who were not permitted to form or join trade unions. This category included prison officers - a matter which had been raised on a number of occasions by the Committee of Experts, and which had been discussed in this present Committee. Implementation of these changes would complete the second stage of the agreed revision of the Trade Union Act.

He also announced that his Government had decided to establish a tripartite committee for co-operation with the ILO. A preparatory meeting had been held on 1 June 1989, and it was hoped to establish the committee in September, or in the early autumn. The Government also intended to examine the possibility of ratifying Convention No. 144 on tripartite consultation. This was further evidence of the Government's positive attitude to the ILO, and consultations within the Committee would have a direct bearing on the attitude of the Government to the practical implementation of ratified Conventions and to Conventions which had not yet been ratified by Poland.

He stressed the importance which the Government had always attached to dialogue within the present Committee. He recalled that two years ago the Government had stated that the question of union pluralism remained open, and that the then-current restrictions were of a transitory nature. It had said that future developments in this regard depended upon the general situation in Poland, and it had appealed for understanding and patience. In 1988, the Government had been able to indicate some measures undertaken to change the legislation, and in February 1989 it had announced the holding of a Round Table Conference aimed at, inter alia, the creation of trade union pluralism. The information presented to the present Committee showed how serious the Government's intention had been on previous occasions.

The Workers' members noted that a great deal had happened in Poland in recent times. They found the progress which had been made in this case refreshing, comforting, encouraging and very different from the criticisms and difficulties which were found in most cases.

They were aware that the application of the Convention had been the subject of comments by the present Committee, by the Committee of Experts and by a Commission of Inquiry. It was clear from reading the report of the Committee of Experts, and from what the Government had told the present Committee, that there had been real progress in this case - even though not everything had yet been put right. One sign of progress was the establishment of a national council charged with the reform of all labour legislation in Poland - a body which was actively co-operating with the ILO in its work. A further sign of progress was the setting up of a group of experts within the Ministry of Labour to deal with human rights, and to examine conformity between legislative provisions and human rights Conventions.

The changes which had been made were most welcome, and were most encouraging. However, much remained to be done, and it was important that the Government did not cease in its endeavours to bring law and practice into conformity with the Conventions.

Finally, they asked whether the Government could indicate if the amendments relating to collective conflicts and the right to strike would be introduced in the near future.

The Worker member of Poland expressed his sincere appreciation of the work of the present Committee in helping to convince the Government to reopen dialogue with the workers represented in "Solidarnosc".

He found the statement of the Government representative to be a reflection of the spirit of dialogue which had led to the Round Table Conference. The co-operative attitude of the Government was most welcome, and Solidarnosc wanted to promote continuing dialogue through the tripartite machinery. However, there was a problem in that one partner was missing. There was a need to counterbalance the Government as an indirect employer with representatives of direct employers. This was not yet possible.

The consensus at the Round Table Conference had simply been a starting-point for further negotiations which were necessary to deal with a number of urgent issues. In that context, the speaker asked the Government representative to comment on five points: (1) the need for fundamental reform of the Labour Code; (2) the strengthening of collective bargaining; (3) the repeal of legislative measures which provided for discrimination in employment and for forced labour in certain circumstances; (4) the extension of trade union rights to areas which had been categorised as "essential" after the declaration of martial law; and (5) the introduction through the country's Constitution of the direct applicability of ILO Conventions. Many of these were sufficiently clear as to permit direct application through the judicial process, rather than just by means of legislative reference.

These five points involved the repeal of remnants of martial law which had permeated the existing legislation, and also provided a framework for developing a new labour law system based upon respect for ILO standards.

Referring to the principles of freedom of association, the speaker fully concurred with the conclusion of the Committee of Experts at paragraph 148 of their 1983 General Survey on Freedom of Association and collective bargaining to the effect that "although the Convention clearly does not aim to make trade union pluralism compulsory, pluralism must be possible in every case". By the same token, he could not accept the proposition that a union monopoly encouraged employee integration and more effectively represented the interests of the workers. More and more States were abandoning this outmoded approach. It was surprising, therefore, to find that a minority of the Committee of Experts still sought to justify the retention of a trade union monopoly by reference to euphemisms such as "socio-economic and political circumstances" or "social realities".

Fundamental universal standards of human rights are inherent and inalienable values irrespective of socio-political system or levels of economic development. The speaker agreed with the Committee of Experts that trade union monopoly imposed directly or indirectly by the law ran counter to the standards expressly laid down by Convention No. 87.

Solidarnosc supported bona fide, new, independent trade unions which were established in Poland, or anywhere else, regardless of the socio-political circumstances of the country concerned.

The Employers' members noted that events had moved rapidly in Poland. In relation to Conventions Nos. 87 and 98, there had been positive and substantial developments both as concerned trade union pluralism and anti-union discrimination. The changes which had taken place in relation to these matters were to be welcomed.

They recalled that the Government had an on-going obligation to supply copies of new laws to the Committee of Experts, and to submit timely reports. They also emphasised that a great deal remained to be done. In this context, the Committee of Experts had provided a number of detailed interpretations relating to the Convention, and the Government should not be surprised if it had to appear before the present Committee again at some time in the future. This was said not as a threat, but to help the Government to realise that its task had only just begun.

The Employers' members noted with concern that there were continuing problems associated with the lack of private enterprise in Poland. They urged the Government to adopt programmes to develop free enterprise in their country. They reiterated that there had been giant steps in the right direction, and hoped that the positive attitude demonstrated by the Government would be applied to remaining problems in relation to the present Convention.

The Worker member of France recalled that his organisation, through its member on the Governing Body, had been instrumental in initiating the complaint against Poland which had led to the establishment of the Commission of Inquiry. He had heard of the substantial progress which had been made through the Round Table Conference. This was most gratifying, but it was now necessary to follow through with practical implementation. He hoped that other countries with similar political regimes would witness similar progress in the near future. For such progress to be meaningful, dialogue had to be carried on in good faith, and on a tripartite basis. When the Government indicated that it was considering the ratification of Convention No. 144, he took this as a positive gesture, indicating that the Government meant to press ahead with its reforms. The speaker hoped that they would also look carefully at the implementation of the Conventions which they had already ratified. He hoped that the Committee would, next year, be able to note further progress both in Poland and elsewhere.

The Government member of the United States noted that the information presented by the Government did not constitute a 100 per cent resolution of all problems of law and practice. It would not have been realistic to expect that at this stage. But there nevertheless appeared to be a genuine evolution towards full respect for the principles of freedom of association and the right to organise. She hoped that in the report of the present Committee there would be an expression of satisfaction at the progress which has been made, and an encouragement to further progress in the future.

The Worker member of Liberia expressed satisfaction at the meeting of minds of all concerned in Poland. African workers supported the positive trends, and hoped for even further progress in the future.

The Government representative expressed his pleasure at the fact that his country was being treated neither as especially good nor as especially bad, but as normal.

It was difficult to be definite about when the second phase of the revision of the 1982 Act would be completed - especially in view of recent electoral developments. However, the changes had been agreed upon in principle at the Round Table Conference, so it seemed reasonable to assume that they would be implemented whatever shape the new Government might take.

Turning to the concerns expressed by the Employers' members about the private sector, the Government representative pointed out that this sector was still relatively small in Poland. It accounted for about 35 per cent of the active population (including independent farmers). He acknowledged that there was a problem in relation to employers' organisations. However, the establishment of an organisation in January 1989 had been a positive development, and it was now necessary to see how things worked out in practice.

The speaker considered that the issues raised by the Workers' member of Poland were directed to the Government itself, rather than to the Government representative in the present Committee. They would be dealt with in the proper way, and if necessary, the appropriate legislation would be prepared. Some of this work was already under way. This included the possible abrogation of those provisions of the Act of 1982 which dealt with the punishment of persons convicted of evading work.

The Committee took note of the information supplied by the Government representative and of the discussion that followed. The Committee noted with interest the evolution of the trade union situation and of collective bargaining, in particular as regards the right of workers to set up the organisations of their choice. The Committee welcomed the fact that the Round Table Conference which had taken place had recognised the need for a modification of the legislation regarding certain points which were raised by the Committee of Experts. The Committee noted with satisfaction that the Government had decided to set up a tripartite committee with responsibility for the examination of social legislation, taking into account the Conventions and Recommendations of the International Labour Organisation.

The Committee expressed the hope that discussion would be continued between the Government and employers' and workers' organisations with a view to continuing to adapt legislation and practice and hoped that all of the texts would be sent to the ILO so that the Committee of Experts would be in a position to examine them.

Individual Case (CAS) - Discussion: 1988, Publication: 75th ILC session (1988)

The Government has communicated the following information: Measures will be taken to define the position of the Government concerning observations by the International Confederation of Free Trade Unions and the World Confederation of Labour relative to the application of the present Convention in Polish legislation.

Trade union unity or pluralism

The legal situation has not changed since the 73rd Session of the Conference. It is characterised by two elements:

- trade union pluralism assumed by the provisions of the Trade Union Act (section 37(1): "In an enterprise in which more than one trade union organisation acts, each of them..."); and

- temporary suspension of the above legal construction (section 60(3): "In the period, the end of which will be determined by the Council of State, only one trade union organisation shall act in an enterprise.").

Thus, in the transitory period which will expire when the Council of State so decides - the principle of trade union unity is in force in enterprises.

The problem of trade union unity or pluralism at the enterprise level which, in the light of Polish legislation, remains open in the longer perspective is connected with the general social, political and economic situation of Poland and directions of its future evolution. It also is one of the elements of the broad sphere of political pluralism in the public life of the country. Future solutions in this regard will be undoubtedly dependent upon more general ones in the field of policy which are at present being prepared in Poland and which cover the considerable broadening of the so called "dialogue with the political opposition", concluding of the "anti-crisis pact", etc. At the beginning of June 1988, in connection with the initial stage of these political activities it is difficult to forecast their final direction and scope; it is only known that they are being carried out in an unprecedented scale for Poland and with the bold will of achieving completely new qualities in the political system of Poland. In this situation Polish authorities ask the International Labour Organisation for understanding and patience in waiting for the further political evolution in this regard, concerning also the problem of trade union pluralism.

In the years 1987 and 1988, the Polish economy entered a second stage of broad economic reform. This period is not free from difficulties and tensions, which are to a considerable degree understandable in the situation of inflation and lack of balance in the internal economic market, as was reflected in the results of the nationwide referendum in November 1987, and was the basis of the strikes in May 1988.

Together with the economic reform and for its support the Government started the broad activities based on a sound scientific basis aimed at the general reform of the labour law, which will also cover the trade union law. To this end, the National Committee for the Labour Law Reform has been appointed, composed of representatives of governmental, scientific and trade union organisations. The Committee has up to 1990 to elaborate the draft of the new labour law, based on comparative legal knowledge and ILO standards. With a view to examining the ways of full adjustment of Polish labour law to the ratified ILO Conventions in the field of human rights, in particular those concerning the right to organise. In May 1988 a group of experts was established at the Ministry of Labour and Social Policy for examining the conformity of Polish law with the ratified ILO Conventions in the field of human rights' protection. The group of experts is composed of eminent scientists and experts in the field of labour law and international law. The results of its work will be submitted to the Legislative Council by the President of the Council of Ministers together with its proposals. The work of the group will take into account the observations of the Committee of Experts, as well as the remarks of the International Confederation of Free Trade Unions and the World Confederation of Labour in the context of application of the present Convention.

As regards the observation of the Committee of Experts concerning an appeal which was submitted to the Constitutional Tribune in respect of section 60(3) of the Trade Union Act, the Government repeats that on 28 November 1986 a group of seven persons appealed to the President of the Constitutional Tribunal to make use of his power to initiate proceedings for examining the conformity of section 60(3), sentence 2, of the Act of 8 October 1982 with section 84(1) and (2) of the Polish Constitution. After examining the case, the Tribunal informed the appellants that their appeal had no basis under the current legal provisions and thus the proceedings would not be instituted.

In the present period of socio-economic difficulties, according to the prevailing opinion which finds its reflection in public opinion polls, the activity of only one trade union organisation in an enterprise favours the integration of staff and the fulfilment by the trade unions of their proper function, i.e. that of defender and representative of the workers' occupational interests. It should be emphasised that the existing laws in Poland create the premises for a broad democracy at the enterprise level. In addition to the trade unions, there exist self-managing bodies elected by the staff which enjoy broad rights permitting them to influence the enterprise management and to control the activities of the manager.

Trade union rights of civil servants

The Act of 16 September 1982 on civil servants employed by the State provides in section 40 that they have the right to organise in trade unions. Thus, the Act does not impose a trade union monopoly, but admits the possibility of joining different trade unions that would cover civil servants.

Section 40 of the Act of 16 September 1982 on civil servants employed by the State provides that they have the right to organise in trade unions with the following exceptions:

- high-level employees whose functions are normally considered as policy-making or managerial;

- employees whose duties are of a highly confidential nature. (These exceptions are in accordance with the provisions of Convention No. 151 concerning protection of the right to organise and procedures for determining conditions of employment in the public service of 1978.)

The above-mentioned civil servants, as well as other non-unionised public employees are entitled to form employees' councils. The task of these councils is to protect and represent the occupational and social interests of public employees who formed them vis-à-vis the heads of the respective administrations. The employees' councils act on the basis of the Act on civil servants employed by the State and statutes which they adopt themselves (section 41 of the Act).

Heads of administrations and their higher bodies are obliged to create proper conditions to enable the employees' representatives to fulfil their statutory tasks. They are also obliged to examine the proposals of the employees' councils and inform the councils of their follow-up action (section 42 of the Act).

The detailed rules and the scope of co-operation of the heads of the civil servants' administrations with the employees' councils are determined by the Order of the Council of Ministers of 8 November 1982 (published in Dziennik Ustaw No. 39, text 261).

Trade union rights of prison service staff

Article 9 of the present Convention states that the extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations.

For many years the officials of prison establishments were part of the militia. After the reform and placing of the prison establishments under the Minister of Justice, a separate formation established: the prison service. From the standpoint of hierarchy and discipline it is similar to the militia and also, due to character of service, its hierarchy and duties, it is treated as the militia.

It should be added that both in doctrine and in practice the opinion prevails that the functionaries of the prison service - just as the functionaries of the militia and professional soldiers are not workers in the sense of section 2 of the Labour Code. If the right to form and join trade unions is granted only to workers, the exclusion of persons being the functionaries in the sense of section 13 of the Trade Union Act does not justify any eventual complaints because it is in accordance with the legal order existing in Poland and corresponds to the spirit of the Convention.

Structure of the trade unions

The structure of the trade unions covering at present over 7 million members (over 60 per cent of the total number of workers covered by the right to organise) is not uniform and its picture is the result of a kind of spontaneity in the process of forming the trade union structure at the over-establishment level. The majority of trade union organisations at the enterprise level, independent, self-managing and having legal personality are grouped into federations. In 1987-88, 116 federations functioned in Poland. Thus, in different branches there were several federations in each one and the problem arises of principles and forms of their co-operation (or its absence). Some trade unions (17) formed the nationwide uniform trade unions, for example the Union of Polish Teachers and the National Trade Union of Workers of the Polish Academy of Sciences. Some trade unions have not formed the over-establishment structures, nor have they joined such structures; thus, they are not associated in the All-Poland Trade Union Alliance. Changes towards trade union organisational pluralism are obvious when compared with the pre-1980 situation when the Act of 1949 provided for the uniform, centralised trade union structure and only 14 national branch unions existed.

The right to collective labour disputes and to strike

Polish legal provisions governing the right to strike are the first and unprecedented legal regulation in this field in the system of socialised ownership, differing from the system of market economy. It is thus difficult to compare Polish regulation with the known - and rarely existing - strike regulations of other countries. It is also worth noting that there are no detailed international standards in this field which could serve as patterns for the legal solutions and practical procedures.

The Trade Union Act of 1982 permits strikes aimed at defending the economic and social interests of a given group of workers. Political strikes are prohibited. The Committee of Experts recalled in 1988 that the exclusion of strictly political strikes from the scope of the principle of freedom of association cannot concern strikes expressing criticisms of the economic and social policy of the Government. However, although the terms "political strike" and "strike in defence of the economic and social interests" are not specified in the Act or in current interpretations of this Act, the Government supposes that the strikes which the Committee of Experts had in mind in its 1988 observation would be legally admitted in Poland - if the other conditions determined by the Act were fulfilled.

The 1982 Act guarantees to workers the right to strike and to trade unions the right to organise strikes. The right to strike is the individual right of each worker used according to his will. The right to organise strikes is the exclusive right of the trade union.

The Act excludes from the right to strike workers of the specific categories of enterprises or occupying specific posts. These exclusions are justified by general considerations connected with necessity of ensuring during the strike:

- benefits and means necessary for the normal existence of the society;

- state safety and defence;

- normal functioning of state bodies and public services; and

- fulfilment of the international obligations of fundamental importance.

Taking into account the suggestions of the ILO Committee of Experts that broad exclusions from the right to strike by various legislative systems are not appropriate, the Government emphasised that after some time of application of the Trade Union Act and in the light of acquired experience, possibly in the course of elaborating the above-mentioned general reform of the labour law, the possibility of revision of the determined exclusions will be analysed.

Polish regulation of strikes unequivocally determines that in the model of economy of Poland the strike is the final means of settling a collective dispute if the other possibilities of settling the dispute are exhausted. The 1982 Act established three stages of settling collective disputes (direct negotiations, conciliation and social arbitration) and only after these are exhausted may the trade union organise a strike.

Among the conditions of admissibility for a strike, the Polish legal regulation requires the consent of the majority of the personnel expressed through secret voting (majority of votes of all the workers employed in a given enterprise and not only the majority of workers taking part in voting). The Act considers that if the strike is to be the expression of will of the collectivity, then refraining from taking part in a vote means that there is a lack of support for the strike. It would be pointless to allow strikes not supported by the majority of the collectivity. The Committee of Experts is of the opinion that the majority of persons voting should be enough to consider the strike as acceptable by the collectivity. Since there are no international standards in this regard, the opinion of the Committee of Experts is worth noting and analysis; it will thus be analysed in the framework of work on the reform of the labour law.

In order to demonstrate the practical functioning of the Polish three-stage machinery for settling collective labour disputes (direct negotiation, conciliation and social arbitration), as well as the right to strike, the Government submits selected information on collective labour disputes and strikes for the years 1985 to 1988 in Poland, according to trade union sources:

Firstly, the following are examples of collective disputes between national trade union organisations and central administration:

- Federation of Ship Repair: a dispute arose with the former Minister of Labour, Wages and Social Affairs concerning the distribution of working time; in autumn 1986 arbitration procedure accepted the claims of the trade unions.

- Federation of Tourism: a dispute arose with the former Chairman of the Committee for Physical Culture and Tourism concerning increased meat coupon norms for the manual staff of hotels; the dispute was lost.

- Federation of Open-Pit Miners (Rock Miners): a dispute with the Government commenced in October 1986 and was aimed at extending the "Miner's Charter" to the miners employed in granite and basalt quarries (miners employed in sedimentary rock quarries were already covered by the "Miner's Charter"). The issue had been in existence for many years. Despite recent work on amendments to the Regulation of the Council of Ministers dated 30 December 1981 concerning the "Miner's Charter", the council of the Federation decided to announce protest action and strike stand-by. On 16 March 1987, as an expression of the protest, all enterprise buildings were equipped with flags. On 19 March 1987, the Chairman of the Council of Ministers signed a decision which extended to rock miners the provisions of the "Miner's Charter", thus accepting the rock miners' protest.

- Federation of Construction Workers: a dispute arose with the Minister of Construction concerning an unlawful (as maintained by the Federation) limitation of allowances to pensions secured for some professions by the "Charter of Construction Workers". The Board of Social Arbitration is in favour of the claim, yet the dispute continues; on 9 May 1988 another round of talks advanced the possibility of a final settlement of the dispute in the near future.

- Federation of Energy Workers: a dispute with the Minister of Industry commenced on 20 April 1988 concerning wage increases to the level existing in other industries. Claims have been made to implement the provisions of the 1980 agreements which guaranteed a wage level corresponding to that of steelmill workers. The dispute was settled on 3 May 1988, with the signing of an agreement in which preferences were made in order to reach a 50 per cent wage increase.

- Federation of Communications Branch: a dispute arose with the Minister of Transportation, Maritime Economy and Communications concerning an average wage increase in order to make it close to the national average. On 3 May 1988 an agreement was signed before the Board of Social Arbitration which secured additional means for a motivation fund, an increase of exports and improved quality of services.

- Federation of Municipal Transportation: a dispute arose with the Minister of Transportation, Maritime Economy and Communications concerning the wage increase and an adjustment to that of other branches. The dispute commenced on 17 March 1988 an was settled with an agreement signed after a strike in Bydgoszcz. The wage increase for municipal transportation workers by some 50 per cent was made possible through concessions in the excessive wage increase tax and an efficiency improvement programme.

- Federation of Miners' Trade Unions: a dispute arose with the Government in May 1988 concerning a revaluation of real wages and system of wages determination. According to the Federation, the fixed 30 per cent threshold for wage increases free of the excessive wage increase tax does not secure the possibility of keeping up with the increasingly rising cost of maintaining living standards. Claims were made to increase by 50 per cent the wages in mining. In the course of negotiations it agreed that, in view of recent decisions fixing the tax-free threshold of wage increases, it was possible to provide a wage rise of 49 per cent on the average. In the final agreement signed on 10 May 1988 it was provided that, after the second quarter, an analysis of wages and living standards costs in mining would be carried out in order to take further appropriate decisions.

Secondly, the following are examples of collective disputes at the enterprise level:

- Mechanical Equipment Factory "PONAR" in Ostrzeszów: (March - April 1987). A dispute arose concerning a change in the wage system. After having exploited the entire legally prescribed procedures, including a strike stand-by, the trade union won concessions in an agreement: the wage increase reached was 7,071 zlotys ($1 = 624 zlotys at 6 June 1988), i.e. close to that claimed (8,000 zlotys). The dispute was announced after the management stated that wages for 1987 may increase only by 500 zlotys and 4 per cent of the bonus per employee (the average wage at that time was 19,600 zlotys). Any wage increase higher than that might have caused bankruptcy of the enterprise due to the danger of exceeding the 12 per cent wage increase threshold and subsequent 500 per cent tax on any wage increase above that, which would result in lost crediting abilities in spite of the high performance of the enterprise. The agreement was signed and announced 20 minutes before the strike was to commence. The strike was declared - according to legal provisions - by the enterprise workforce in a secret ballot in which 992 workers took part (the total enterprise workforce being 1,400 persons) - 721 were for the strike, 109 against and 18 votes were not valid. In this case, the rules of the economic reform were observed, and the dispute was settled within the enterprise though it necessitated extra work having a total value of about 700 million zlotys (this provision was mentioned in the agreement).

- Electric Machine Factory EDA in Poniatowa: (April - October 1987). The dispute concerned a wage increase of 3,500 zlotys. In accordance with the legal provisions, the course of the dispute involved a referendum, strike stand-by and warning strike. The final wage increase amounted to about 1,300 zlotys per worker. In the referendum, 72 per cent of those entitled to vote cast their votes, 92 per cent of whom voted "for". Financial means for the wage increase were taken from the part of profits devoted to investment and paid in the form of monthly motivation bonuses, but part of them must have been spent on the excessive wage increase tax. Additionally, a proportion of the wage increase was paid due to reduction of employment. It should be mentioned that the Workers Council objected against such allocation of financial means out of profits, but finally changed its attitude after the explanations of the management.

At the end of April and the beginning of May 1988, trade union organisations in enterprises increased the number of collective disputes in view of social discontent with the falling value of real wages and economic difficulties of the enterprises. The majority of these conflicts commenced before the government decisions were announced increasing by 7 per cent the threshold of wage increase free of the tax on excessive wage increase.

In the "Lenin" (Krakow) and "Stalowa Wola" steel mills, as well as in some other local enterprises of municipal transportation (Bydgoszcz, Szczecin), trade unions declared collective disputes with the management after strike actions of part of the workforce undertaken apart of trade union organisations. In those cases trade unions have taken over negotiating the economic claims of those related to working conditions, not expressing, however, their attitude towards political issues raised by the strikers.

According to trade union sources, the causes of the majority of disputes were as follows:

- unstable and delayed regulations and legal provisions concerning general economic issues, especially related to the enterprise wage fund;

- incompetence and disregard of the Trade Union Act by state administration organs;

- lack of information and consultations in the process of introducing wage, bonuses and awards systems;

- lack of reaction to trade union protests;

- prolonging and time-consuming settlement of numerous issues by a part of central, intermediate and lower levels of the administrative apparatus as a result of their incompetence and bureaucratic attitudes.

The Government informs the present Committee that on 11 May 1988 the Seym adopted the Act on the extraordinary rights and entitlements for the Council of Ministers - of the economic character - aimed at eliminating obstacles in the implementation of the economic reform and accelerating the rate of this reform. The Act introduced - for the transitory period from May 1988 to the end of 1988 - additional limitations on the possibility of starting collective disputes (thus also of organising strikes) in matters resulting from the application of these extraordinary rights of the Government, unless the starting of such a dispute is supported by the All-Poland Trade Union Alliance after consultation with competent federations, or is supported by the National Federation of Farmers, Agricultural Circles and Agricultural Organisations. This limitation will remain in force until the end of 1988 and its aim is radically to support the implementation of the economic reforms.

Other activities in favour of the protection of human rights and basic freedoms

The Government stresses that - despite the difficult socioeconomic situation - it attaches great importance to full observance in Poland of human rights and developement of public institutions serving this aim. It has already mentioned the establishment, in February 1988, of the National Committee for the Labour Law Reform, which has until 1990 to prepare the draft of the labour law codification. At the same time, at the Ministry of Labour and Social Policy, the Group of Experts was established for examining the conformity of Polish legislation with the ratified ILO Conventions in the field of human rights.

The whole legal system of the Polish People's Republic is at present the subject of important modifications. Many changes have been introduced to the penal, civil and rural law. The influence exerted by citizens upon the activity of the State and administration organs in the form of social consultations and the national referendum received legal standing in 1987. The right of citizens to participate in social control has been increased thanks to an increase in the role of various social organisations (especially trade unions) as well as the forms of social self-management (especially workers' self-management) and development of their control functions. It also mentions the changes in the legal provisions on elections of people's councils, which increased the citizens' possibilities to influence the selection of candidates. Essential progress can be noticed in the field of implementation of rights of association. Legal provisions in this field (of 1982) will be modified. Besides, the institutional guarantees of implementation of rights of citizens and law and order have been developed. The Supreme Administrative Court has been established as an organ independent of the administrations, which controls the legality of administrative decisions. In 1986, the Constitutional Tribunal started its work. It examines conformity with the Constitution of legal acts and other acts of the central state organs. Of particular importance from the standpoint of citizens' rights and freedoms is the activity of the Ombudsman for Citizens' Rights who is to guard the rights and interests of citizens set out in the Constitution and legal provisions. The social basis of the institution of the Ombudsman is reinforced by the establishment of the Social Committee of Human Rights, composed of persons having high moral authority.

The above activities show that the Government does not treat human rights and methods of their implementation. The humanistic aims of the socialist system oblige the Government to meet better the growing aspirations, with the essential role played by the feeling of real justice in the social sphere, political democracy and subjectivity of citizens.

The Ministry of Labour and Social Policy, as in the past, will inform the ILO of the progress in the work in the field of adjusting the national legislation to ILO standards in the matters raised by the Committee of Experts.

In addition, a Government representative, with respect to the application of Conventions Nos. 87 and 98, referred to the written communication submitted by the Government which contained a description of the present legal situation in this country. This situation was characterised by two elements: firstly, the Law of 8 October 1982 on trade unions which, in its general past on the prospects, assumed the existence of trade union pluralism and dealt with situations where there were more than one trade union organisation in an enterprise; and, secondly, the transitory provision of the same law which had temporarily suspended the legal construction of pluralism. This provision stipulated that "in the period, the end of which would be determined by the Council of State, only one trade union organisation shall act in an enterprise". In spite of the fact, that the necessary suspension of trade union pluralism was based and justified by the general political, social and economic situation in Poland, the Government did not deny that there was a problem of discrepancy between the transitory provision suspending pluralism and Convention No. 87. A group of experts in Poland, which had been previously referred to in this Committee, had the mandate to carry out an in-depth analysis of this problem, considering its political, social and economic aspects and to suggest to the authorities proper ways of overcoming the difficulties. At present, there was a favourable political climate in Poland towards achieving progress in resolving the open problem of compliance with Convention No. 87. In this regard, the Minister of Labour and Social Policy of Poland had announced several days ago in the Plenary of this Conference that the authorities of the State had recently declared that they were for a pluralistic pattern of co-operation and common responsibility and that a reform-orientated coalition, covering the representatives of different political and moral orientations, was expected in Poland. He had further stressed that Polish authorities were looking towards the ILO for understanding and patience, particularly in the Committee on the Application of Standards with regard to their examination of the problem of trade union pluralism, as well as pluralism of farmers' organisations. With respect to the observations of the Committee of Experts on trade union rights of officials in prison establishments, the Government representative referred to the explanations contained in the above-mentioned written communication. In Polish labour law theory, as well as in practice, the opinion prevailed that the officials in prison establishments were not workers as defined by Article 2 of the Labour Code. This was also true for the officials in the Polish police, militia and professional soldiers. For many years, the officials of prison establishments were part of the police. From an organisational point of view, they were separated from the police after the reform when they were placed under the Minister of Justice. The prison establishment officials, however, preserved the legal status, hierarchy and discipline similar to that of the militia. In light of Article 9, Convention No. 87, it was the Government's conviction that article 3 of the Polish Law on trade unions, which provided that the workers' right to organise in trade unions did not apply to officials in the militia or prison establishment, was in conformity with the spirit and meaning of Convention No. 87. With regard to the Committee of Experts' observations concerning restrictions on the right to strike, the Committee had noted that the Polish legal provisions governing the right to strike were unprecedented in a socialist country. The Government representative noted that when these provisions were enacted the legislative authorities had not been able to take advantage of foreign experience since strike regulations contained in the legislation of other countries were very scarce and there were no international standards in this field. It was the Polish conviction that a strike was the ultimate measure in settling a collective labour dispute and it should only be applied if other possibilities of settling the dispute had been exhausted and had failed. The Trade Union Law of 1982 established three stages of settling collective labour disputes: direct negotiations, conciliation and social arbitration. Only after these stages had been applied and failed could a trade union organise a strike. The Government representative indicated that the above-mentioned written information demonstrated the practical functioning of the Polish three-stage machinery of settling labour disputes, as well as the practical functioning of the strike regulation. Furthermore, with respect to the observations of the Committee of Experts on restrictions on the right to strike, the Government representative indicated that her Government took a fully positive attitude towards at least two of the three observations made on this point. With regard to the observation concerning the extent of exclusions from the right to strike, the Government considered that, as a result of the general reform of Polish labour law, the list of essential services in which strikes were excluded may be revised and reduced, taking into consideration the suggestions of the Committee of Experts. The reform of the labour law was envisaged to be completed in the early 1990s. In regard to the exclusion of political strikes, the speaker noted that the Committee had recalled that the exclusion of strikes that were purely political in character from the scope of principles of freedom of association did not cover strikes which were aimed at criticising a government's economic and social policies. It was the Government's opinion that, although the term "political strike" and the term "strike in defence of the economic and social interest" were not explained in the law on trade unions, the strikes which the Committee of Experts had in mind in its observations would be legally permissible in Poland provided that the other conditions of the legality of a strike were fulfilled. Thus, the Government's position was positive towards this observation of the Committee of Experts. With respect to the Committee of Experts' comment concerning the Polish requirement of a consent of the majority of all the workers employed in the enterprise for a strike to be called, the Committee of Experts was of the opinion that a simple majority of the persons voting should be sufficient. In this respect, the Government considered that a strike should be the expression of the will of the collectivity and that refraining from taking part in a vote meant lack of support. However, in spite of such conviction, the Government gave its assurance that the opinion of the Committee of Experts would be brought to the attention of the national committee elaborating the general reform of the labour law in Poland. Thus, the Government did not reject this observation of the Committee of Experts.

The Workers' members welcomed the dialogue which had been resumed with the Government of Poland since last year, and that Poland had rescinded its notice to withdraw from the ILO. Despite differing views it was through meeting and re-establishing dialogue that solutions were able to be achieved. This case concerned two essential Conventions - Conventions Nos. 87 and 98 - and these were vital with respect to relations between the social partners and the Government. In light of the oral and written replies provided to the present Committee and the dialogue which occurred last year it would appear that there was a desire on the part of Poland to seek ways of resolving the problems which existed. However there were certain aspects which must continue to be examined. Firstly, certain legal provisions needed to be amended despite the existence of special situations. Based on the statement made by the Government representative, it appeared that good will to change clearly existed. It was necessary to translate this good will into practice. Secondly, the Workers recalled that even though there existed a number of trade unions, trade union pluralism desired by the workers did not exist in fact because only one trade union organisation could exist in an enterprise. Requests had been made by workers in many enterprises to establish new trade unions, and to date, these requests had been refused. The Workers' members were concerned by this situation but they hoped that the Committee charged with the reformation of the labour legislation as well as the good will demonstrated by the Government representative of Poland by resuming membership in the ILO would contribute to an improvement in this situation. The Workers' members further noted the problems which existed with regard to trade union officials in prison establishments. Despite the changes which had taken place in the law and the reassignment of these officials to the Ministry of Justice, this situation still needed to be clarified. The Workers' members recalled that the right to strike was a fundamental right which should be respected and which should not be used lightly because it could damage the interests of workers as well as the economy of the country. A strike was not a goal in itself. There existed agreements between the social partners in industrial and commercial enterprises as well as in public administration which included the possibilities of recourse. It was true that a strike should be the last recourse, but in certain cases strikes were justified particularly in serious situations such as in the dismissal of trade union leaders. Trade union organisations should remain within their sphere of competence with an awareness of the economic and social spheres; however, certain economic, political or social measures taken by governments could justify recourse to a strike. With regard to legislation, the Government seemed inclined to take measures which would be in conformity with the legislation. The Workers' members hoped that this situation would be improved and that Poland would be able to give full satisfaction to the Committee of Experts' observations as well as to the views expressed during the discussions in the present Committee.

The Employers' members noted the information contained in the report of the Committee of Experts, the written documents and the oral statement of the Government representative concerning this case. It was clear that Convention No. 87 entitled workers and employers to constitute organisations of their own choosing and thus guaranteed pluralism. It was to be decided by the workers and employers themselves whether they would make use of that possibility. The legal provision which required one single trade union was a very serious violation of the Convention. The argument that the workers at a certain time in history wanted only one trade union was not applicable because this would effectively mean that workers in the future would no longer have the right, guaranteed to them by the Convention, to create more unions of their own choosing. It was positive this Committee no longer needed to hold this discussion and that the Government recognised that it was not in conformity with the Convention. The Employers' members noted the Government representative's statement that the current non-conformity with the Convention was a transitional situation and that the trade union law recognised pluralism, but that these provisions were suspended for an indefinite period of time. Theoretically, improvements may have occurred, however, in practice a single trade union continues to exist. It should be noted that in his written communication the Government established the relationship between that question and the subsequent questions concerning political pluralism. Again, despite the theory, the Employers' members stressed that there were trade unions in Poland which were prohibited, not consulted and not represented in the Workers' delegation of Poland at the ILO Conference. It was noted from the report of the Committee of Experts that a certain number of protective measures existed against dismissals and thus the Employers' members agreed that certain matters were on the right path. Moreover, a certain number of comments concerning the protection of the right to organise were noted from the report. However, these improvements were only applicable to the authorised unions and not to the prohibited or non-authorised unions. For this reason the Committee of Experts quite rightly concluded that in the long run everything depended upon the practice and this will remain to be seen in the future. It was noted that since June 1987 no collective agreements had been concluded and the Employers' members wanted to know why this was the case. They expressed the hope that the road from the recognition of the need to apply, in practice, certain legal tenets would not be too long and that improvements in theory will become improvements in practice. Freedom of association was not yet guaranteed in Poland. Not without some concern, the Employers' members expressed their interest in the information which would be contained in next year's report.

A Worker member of the United States found the Polish Government's replies to the comments made by the Committee of Experts rather interesting but full of contradictions. For example, the Polish Government had stated that workers could freely organise to defend their occupational and social interests yet it was stated that as a temporary measure only one trade union organisation could act in an enterprise. The Workers' members posed the question as to what was the Polish Government's definition of temporary. With regard to the Polish Government's remarks concerning broad democracy at the enterprise level, he noted the statement in the written communication of the Government on the existence of self-managing bodies elected by the staff which were said to enjoy rights permitting them to influence the enterprise management and to control the activities of the manager. It should be noted that the so-called workers' self-management councils were intended to represent the collective employer, within the context of a planned economy, rather than the workers, therefore they could not be considered a replacement for trade unions. He noted that the Polish Government attempted to differentiate workers' rights between a system based on socialised ownership and one based on market economy with regard to restrictions on the right to strike. Workers' rights were workers' rights regardless of the economic system and that principle should be reflected in the conclusions of the present Committee. He noted that the trade union law forbade the organisation of more than one trade union in any one enterprise. Moreover, it defined the terminology by which a trade union must be known and thus excluded the usage of the name "Solidarnosc". It also required that any founding committee of a trade union must comprise a minimum of ten persons and a minimum of 50 members to be eligible for registration. In almost all enterprises the authorities established constitutive committees and thereby blocked the possibility of workers to legally organise unions themselves. However, some of the founding committees had failed to obtain the required number of members. Therefore, they remained unregistered and claimed to be independent since they were not linked with the official trade union movement. It was noted that in the list of examples of collective disputes contained in the written communication of the Government, no mention was made of the major strike at the Lenin Gdansk shipyard where the workers' main demand was the renewed legalisation of the NSZZ "Solidarnosc". He also noted the situation at the Catholic University of Lublin, an institution devoid of any trade union organisation, where the Government refused to register the workers' choice of a union simply because they wanted the word "Solidarnosc" in its name. With regard to the exclusions from the right to strike of categories of enterprises or occupations, the speaker requested clarification as to what was meant in the written communication of the Government by "benefits and means necessary for the normal existence of the society". With regard to the terminology of "excessive wage increase tax" as stated in this communication, he pointed out that this provision was confiscatory five times over even though it was the enterprise which had to pay it. Essentially this was an effective wage control because an enterprise would have to extremely profitable in order for the workers to be able to negotiate wage increases above the Government's threshold of 12 per cent. This so-called excessive wage increase tax forces compliance with the economic policy of the Government and represents serious interference in the collective bargaining process and the rights to collective bargaining as enshrined in Convention No. 98. The speaker regretted to note that in this year's Committee of Experts' report on Poland, no mention was made of the 1983-84 Committee of Inquiry set up by the ILO in 1983 regarding the application of Conventions Nos. 87 and 98.

A Worker member of the Byelorussian SSR noted that a sufficient amount of clear information had been put forward by the Government of Poland concerning the implementation of Convention No. 87. He pointed to the good co-operation of the Government of Poland with the International Labour Organisation and in this respect he referred to the very open and candid information contained in the written communications of the Government. He stated that the Government recognised certain differences which existed between national legislation and the Convention and in his view these differences were not as great as in some other cases already considered by this Committee. In respect of the legislation of Poland, and its conformity with Article 2 of the Convention No. 87, the Government had very clearly put forward its motives for its certain degree of divergence from Convention No. 87. The situation in Poland was not a simple one. At this stage, the Government had not been successful at doing everything that had been thought of or desired in order to bring national legislation into conformity with the Convention. In practice, Polish workers were guaranteed broad political rights and freedoms and they actively made use of them. This was clearly shown by the information contained in the written communication of the Government submitted to the present Committee. He noted satisfaction with the readiness of the Government to bring national legislation into conformity with the ILO Convention No. 87. He highlighted the fact that the Government had set up a national committee on reform issues of labour legislation and that a group of experts had been set up under the Ministry of Labour with similar objectives. This indicated the serious intentions of the Government. However, more effort and time will be required. He stressed that this Committee could take note of a certain amount of progress in the position of the Government and that patience should be shown with a view to the further evolution of this situation.

The Worker member of the United Kingdom noted the very comprehensive explanations provided by the Government and submitted before this Committee. With regard to the rights of civil servants to join trade unions, the written communication of the Government contained a list of exclusions which included employees whose duties were of a confidential nature. He drew attention to the fact that the Government of Poland was using the same argument as the Government of the United Kingdom in stating that Convention No. 151 overrode Convention No. 87. Convention No. 151 did not override Convention No. 87 and he hoped that the Government of Poland would recognise this in its revision of the labour legislation. It should be remembered that civil servants had rights the same as everyone else and that those rights were enshrined in Convention No. 87. With regard to the right to strike, he noted that the exclusions contained in the written communication of the Government, including areas such as safety and defence, the normal functioning of state bodies and the fulfilment of international obligations, seemed to comprise a definition of the work of the civil service. Thus the law appeared to virtually exclude civil servants from having the right to strike. He wished to remind the Polish Government that civil servants had the same right to strike as other workers.

The Workers' members, with respect to the applications of Convention No. 98, noted their concern with regard to the questions raised by the International Confederation of Free Trade Unions (ICFTU) and the World Confederation of Labour (WCL) concerning former trade unionists who have been interned, arrested or sentenced and then amnestied and who had difficulty in recovering their employment. These measures were said to have occurred for political reasons and not for reasons of involvment with a trade union. However, it was clear that when workers participated in trade union activities within the framework of Solidarnosc they were treated accordingly. Solidarnosc was a trade union organisation and it should be recognised as such and the activities of its members should not be considered political. Such discrimination against trade unions should not continue to exist. With respect of the implementation of Conventions, all Members of the ILO were beholding to the same duties irrespective of whether they were socialist or capitalistic countries. The Workers' members further noted that there was no comment made by the Polish member of the Committee of Experts concerning the observations of the Committee of Experts on Conventions Nos. 87 and 98. This may be seen as significant; efforts have been made and the Workers' members looked forward to more information and hoped for progress to be achieved in accordance with the Committee of Experts' comments.

The Worker member from the Netherlands noted his satisfaction that this year the present Committee was able to discuss the substance of the Polish case. It was important to note that this Committee stood, at the present time, at the point where the Committee of Inquiry left off. In previous years the Committee of Experts' reports contained the conclusions of the Committee of Inquiry. In this regard it would have been useful this year if the Committee of Experts' reports had made an effort to take stock of what had been realised up to the present time. Next year, he would like to see the Committee of Experts make an effort in this regard. He stated that the Polish Government had explained its present difficulties in terms of denying the right of Solidarnosc to represent the interests of its members on the basis of its economic situation. Many Governments had run into such difficulties, however, the argument in this case was not very impressive. Before Solidarnosc existed and during its existence there were major economic difficulties. Since Solidarnosc had been prohibited the economic situation had not improved. Moreover, it should be pointed out that the leadership of Solidarnosc had tried to participate in the national debate of the economic difficulties and they had taken a very responsible attitude. Therefore it was not this organisation's attitude which could have given rise to the repressive position taken by the Government. Further, the speaker regretted that the leadership of Solidarnosc had been prevented from joining delegations of international trade union organisations and from being represented at this Conference. This was also a violation of Convention No. 87.

The Government member of the USSR welcomed the return of Poland to the ILO and their participation in meetings. This proof of goodwill as well as the interesting dialogue in which they engaged demonstrated Poland's respect towards the ILO. Poland had ratified 74 Conventions, not only seven or nine Conventions. Of the 150 Members of the ILO only 11 countries had ratified as many or slightly more Conventions. In the present situation in Poland, it was not a simple matter for Poland to take on all these responsibilities. He noted the great praise which had been addressed to Poland this year as compared to last year. In this Committee the Polish Government had given an open and candid reply concerning the situations which have arisen in its country, including in the trade union movement. The complete information supplied by Poland in the written communications was much appreciated. Moreover it should be highly valued that the Government representative of Poland addressed the comments made by the Committee of Experts. In this respect there were certain matters being studied and there was a temporary decision regarding the question of trade union pluralism. The openness with which this situation was discussed showed the degree of responsibility taken by Poland. The fact that Poland had established a special committee to review legislation showed its full awareness that the measures which have been taken were of an emergent and transitory nature. This Committee should avoid giving lessons or recommendations as to how the Polish Government should act in every specific case. The comments which had been heard today concerning what the Committee of Experts did not fully do were not of reasonable analysis and they should not exist in this Committee's dialogue. Moreover, in the past, explanations of unemployment and economic difficulties had been accepted by this Committee as to why Conventions had not been applied, therefore it should not be said in this case that economic difficulties could not provide explanations. It was also noted that the need for compliance with Convention No. 87 was emphasised by various members who came from countries which had not ratified the Convention. In concluding, the speaker stressed that account should be taken of all the different facets of the situation prevailing in Poland.

The Worker member of the German Democratic Republic agreed with the statement made by the Workers' member of the USSR. The trade unions in the German Democratic Republic had very close relations with their Polish colleagues and they knew that the trade unions in Poland defended the interests of the workers under the very difficult conditions that existed in that country. It was one of the main duties of the ILO to give its greatest support to these endeavours and such support should include the taking note of the very constructive report of the Polish Government representative.

The Government member of the United States noted the good intentions that the Government of Poland had expressed. She suggested that in its review of the labour legislation, the Polish Government might also take into account the recommendations of the Committee of Inquiry which examined the Polish trade union situation in 1984. Even though all references to the Commission of Inquiry had been purged from ILO reports, its conclusions and recommendations were as valid today as the day they had been published. With respect to ratification, she noted that ratification was no substitute for implementation of international labour standards.

The Worker member of Austria was pleased to note that Poland had ratified 74 Conventions; however, if they had only ratified 72 he would have also been happy. He expressed concern over the problems concerning the application of Conventions Nos. 87 and 98 and he hoped that the Polish Government would seriously consider the recommendations of the Committee of Experts and of the Committee on Freedom of Association so that some progress could be recorded next year.

The Government representative of Poland, concerning the application of Convention No. 98, noted that the Committee of Experts had made two observations: one concerning the field of anti-trade union discrimination, and the second regarding the procedure of registration of collective agreements in Poland. With regard to the first observation of the Committee of Experts, the speaker referred to the extensive information which had been submitted to this Committee in writing. With regard to the second observation concerning the procedure of registration of collective agreements she noted that it had been a long tradition in Poland - never contested by the ILO - that collective agreements had entered into force after being introduced in a register kept by the Minister of Labour who, before registration, controlled the conformity of the agreement with the law. Prior to the social and economic reform in Poland, both parties to the collective agreement negotiated the agreement and as far as the economic aspects of the agreement were concerned - they were controlled by their respective high-level supervisory organs. As a result of the recent social and economic reforms in Poland, both bargaining parties were independent of any high-level supervision ; thus, theoretically, they were able to bargain for wages and other benefits which did not have a basis in the Polish economic situation or any accepted rules of economic reform. Yet, the Polish economy was based on social and economic plans established by negotiations and consultations between the Government and the trade union. Both of these parties -the Government and the Trade Union Alliance - were interested in ensuring that collective agreements complied with these economic plans. She noted that that was why the law of November 1986 on collective agreements had admitted the control of the conformity of collective agreements with the law as well as with the social and economic plans. The refusal to register a collective agreement by the Minister of Labour enables him to indicate the non-conformity of a collective agreement submitted to him for registration. The final appraisal with regard to whether a collective agreement was in conformity with the law - was within the competence of the Supreme Court. The final appraisal of compliance with the social and economic plans as entrusted to a special committee, half of which was comprised of representatives of the Presidium of the Government and half from the Polish Alliance of Trade Unions. This committee had to settle any dispute expeditiously, within a certain time period, and its decision was binding on the Minister of Labour. This mechanism of appraisal of the conformity of collective agreements had been the subject of long discussions and negotiations within the mixed governmental and trade union committee charged with the preparation of the draft law on collective agreements during 1985 and 1986. Following many months of controversy within this committee, the solution had finally been found and agreed to be included in the draft of this law. This solution was regarded as assuring the proper protection of rights and interests of workers, of trade unions and of the collectivity. Thus the Government appreciated the social values of this solution and at this time could not perceive any non-compliance with Convention No. 98 in this respect. The Government representative noted her satisfaction with the statements of both the Workers' and Employers' members and was particularly pleased with the Workers' declaration which proved that they understood the philosophy of the Polish strikes regulations. She wished to point out that the Polish Government did not deny the fact that the temporary suspension of trade union pluralism had raised problems of compliance with Convention No. 87. She referred to the task of the group of experts established in Poland to consult the Government and the authorities on the ways of overcoming this non-compliance. With respect to the remarks of the Worker member from the United Kingdom concerning the expression "benefits and means necessary for the normal existence of society", she explained that this included occupations such as fire brigades, state defence and security positions, manufacturing, storing and distributing foods, public health and social welfare, pharmacies and educational institutions. Moreover, with regard to civil servants, she pointed out that the law on civil servants acknowledged the right of Polish civil servants to organise in trade unions. It was not right to state that the law on civil servants imposed the monopoly of one trade union on Polish civil servants. With regard to the comments made by the Worker member of the United States, she noted that he had some legal misunderstandings or perhaps misinformation concerning the trade union situation in Poland and suggested that he discuss these with the Polish trade union member in this Committee.

Another Government representative of Poland recalled some basic facts about the trade union situation in Poland and the use of the right to associate in trade unions. There were more than 7 million members of trade union organisations in Poland and more than 27,000 trade union organisations. He noted that while pluralism in trade union organisations did not exist at the enterprise level, it could exist on a higher level, for instance on an industrywide basis. Recent data indicated that only 50 applications had been made for the establishment of a new trade union organisation in enterprises. With respect to the problem of the so-called Solidarity organisation, he noted that it had once been recognised as a trade union organisation, but because it had diverged from its trade union aims, it had been dissolved. It was true that there were some groups that called themselves Solidarity, but he questioned whether they were trade union organisations. There were three types of situation involving trade unions and political activities. One was when a trade union took a position on some political issue and in such a case, trade unions should be allowed to publicly make their position known. The second situation was when an established trade union diverged from the trade union activities and became a political organisation. The third type of situation was when a political group pretended to have the status of a trade union and this was the situation that existed with many groups which named themselves Solidarity. For this type of activity there were forums other than trade unions. With respect to the concern as to how the Government intended to change or revise the law on trade union association, the Council of State would decide when pluralism of trade union organisations on the enterprise level should be restored. In this regard, account would be taken of the work of the expert group in Poland, the general evolution of social and political life in Poland and the economic situation. With regard to this latter factor the speaker noted that at the beginning of the 1980s Poland suffered a severe economic and social crisis, particularly with respect to their external economic relations. With respect to the questions raised concerning the participation of Mr. Walesa in this Conference, he noted that Mr. Walesa had applied to the Ministry of Foreign Affairs for a passport and that the passports given by that office were only to persons who were on an official mission; and, as Mr. Walesa was not on such a mission, the application was not admitted.

The Workers' and Employers' members noted that it was not appropriate to bring up the past or, in other words, to give reasons for the prohibition of Solidarity. It would be better to look toward the future with the hope that there would be changes and that the past would remain the past.

The Government representative of Poland who has just spoken noted that it was not his intention to bring up the past but rather to respond to issues that had been raised. He stressed that his Government's oral and written statements before this Committee had been future-oriented.

The Committee noted the extensive written and oral information supplied by the Government and the detailed discussion which took place within the Committee. It noted that the Government of Poland did not deny that there were discrepancies between the Polish legislation and the provisions of the Conventions. It noted in this connection the assurances given by the Government as to its intention to take measures to comply with the Conventions and the establishment of a group of experts entrusted with the task of analysing the conformity of current Polish legislation with the Conventions. The Committee has to note, however, that no changes have been recorded with regard to the longstanding comments of the Committee of Experts on the nonconformity of several legislative provisions with the requirements of the Conventions. The Committee urged the Government, in the spirit of dialogue the latter has demonstrated, to take the necessary steps to ensure that the principles contained in both Conventions were fully applied in law and in practice so that next year the Committee of Experts would be able to note progress towards removing the present divergencies.

Individual Case (CAS) - Discussion: 1987, Publication: 73rd ILC session (1987)

The Government has communicated the following information:

In reports submitted to the Office, detailed information on trade union legislation and the development of the trade union movement has been presented.

In accordance with section 60 (3) of the Trade Union Act (consolidated text of 1985), "in the period determined by the Council of State one trade union organisation shall function in one enterprise". Thus the Act maintains during the transitory period the principle of monism, i.e. the existence of only one trade union in a given institution or enterprise. The reason for preserving the validity of this provision lies in the existing social and political and economic situation in Poland and especially the generally known economic difficulties of the country, owing largely to the limitation on economic relations with Poland by several developed countries.

As long as extensive socio-economic reforms are being carried out in Poland aimed at overcoming the existing difficulties, such a solution is particularly justified. This situation, which responds to the present interests of the State and the nation, can be changed by a decision of the Council of State if the circumstances justify it.

In the present period of socio-economic difficulties, according to the prevailing opinion which is reflected in public opinion polls, the activity of only one trade union organisation in an enterprise favours the integration of staff and the fulfilment by the trade unions of their proper function, i.e. that of defender and representative of the workers' occupational interests. It should be emphasised that the existing laws in Poland create the premises for broad democracy at the enterprise level. In addition to the trade unions, there exist in enterprises self-managing bodies elected by the staff and which enjoy broad rights permitting them to influence the enterprise management and the control of the activities of the managers.

Although the law admits only one trade union organisation in the enterprise, it do not exclude pluralism, because each trade union may determine its orientation; at present about 27,000 trade union organisations exist at the enterprise level. They all have legal personality and are grouped in 133 national organisations.

The trade union structure is a real mosaic. Certain trade unions are grouped in federations (116) while others are organised only at the national level (17), e.g. the Teachers' Trade Union. It should be added that this pluralism is more evident now than under the Act of 1949, which provided for a sole, centralised trade union structure and resulted in only 13 or 14 branch unions.

As regards the Committee of Experts' observation concerning an appeal which was submitted to the Constitutional respect of section 60(3) of the Trade Union Act, the Government states that, on 28 November 1986, a group of seven persons appealed to the President of the Constitutional Court to make use of his power to initiate Proceedings for examing the conformity of section 60(3), sentence 2, of the Trade Union Act of 8 October 1982 with article 84, paragraphs 1 and 2, of the Polish Constitution. (Institution of such proceedings is provided for in section 19(3) of the Trade Union Act of 29 April 1985 on the Constitutional Court.) After examining the case, the Court informed the appellants that their appeal had no basis under the current legal provisions and thus the proceedings would not be instituted.

The Act of 8 October 1982 on farmers' socio-occupational organisations concerns the free organisation of individual farmers, their family members and other persons whose work is directly connected with agriculture. These organisations are established for defending the occupational and social interests of individual farmers and they aim at the development of individual holdings. The Act provides that these organisations are independent of the state administrative bodies, as well as of state and social organisational units and that they act through their own democratically elected bodies, established under rules adopted by these organisations. These organisations themselves determine the scope and form of their activities within the framework of the legal provisions in force.

The National Federation of Farmers which, according to the above-mentioned Act, is an independent and self-governing association, is made up of agricultural circles, agricultural organisations and federations of agricultural circles and agricultural organisations. The Federation can also be joined on a voluntary basis by the national unions of the rural branch associations and other farmers' organisations. The National Federation, which has been considered by the Act as the main representative of individual farmers, therefore has no monopolistic character. The Act does not make membership in the Federation automatic for the branch associations, i.e. the free, independent and self-managing organisations representing the rights and interests of individual farmers specialising in a given kind of crop or animal production, or for the many social organisations operating in rural areas other than those mentioned in the Act.

It should also be mentioned that the organisations covered by the Act do not cover wage earners employed in the socialised agricultural sector or in the private sector or members of production co-operatives. They can join the appropriate trade unions provided for in the Trade Union Act of 1982.

Section 40 of the Act on civil servants employed by the state provides that they have the right to organise in trade unions with the following exceptions: high-level employees whose functions are normally considered as policy-making or managerial and employees whose duties are of a highly confidential nature. These exceptions are in accordance with the provisions of the Labour Relations (Public Service) Convention, 1978 (No 151).

The above-mentioned civil servants, as well as other non-unionised public employees, are entitled to form workers' councils. The task of these councils is to protect and represent the occupational and social interests of public employees who formed them vis-à-vis the heads of the respective administrations. The workers, councils act on the basis of this Act and rules which they adopt themselves (section 41 of the Act).

Heads of administrations and their higher bodies are obliged to create proper conditions to enable the workers' representatives to fulfil their statutory tasks. They are also obliged to examine the proposals of the workers' councils and inform the councils of their follow-up action (section 42 of the Act).

The detailed rules and the scope of co-operation of the heads of the respective administrations with the workers' councils are determined by the Order of the Council of Ministers of 8 November 1982, published in the official gazette, Dziennik Ustaw, No. 39, Text 261. This Order defines the scope of matters which should be the subject of consulations between the head of the respective administration and the workers' council or concerning which the council's opinion should be noted.

In accordance with paragraph 2 of this Order, the workers' council should be consulted in matters concerning all the workers represented by this council, and especially as regards: employment and implementation of the rights and obligations resulting from the labour relationship; remuneration for work and other benefits for workers as well as the financial policy; working conditions and occupational safety and health; workers' health protection and recreation and social and housing benefits.

The workers' council should express its opinion on the termination of the employment relationship, on the appraisals of workers and on the decisions in respect of: rewards and honours, the division and utilisation of the bonuses fund, distribution of hours of work and paid holidays and improvement of vocational skills.

In accordance with section 15 (1) of the Trade Union Act, workers employed in the military units subordinated to the Minister of National Defence and in enterprises subordinated to the Minister of National Defence or to the Minister of the Interior are entitled to form and join trade unions subject to observance of the requirements of national defence and safety.

In the military units and state enterprises subordinated to the Minister of National Defence, workers have formed trade union organisations. These organisations are associated in the Independent Self-managing Trade Union of Military Workers.

However, the right to associate in trade unions is not granted to workers whose functions and duties are of a highly confidential nature and who are restricted under the Act of 1982 on civil servants employed by the State; nor is this right granted to workers of the organisational units determined by the Minister of National Defence, because of their particular defence character (in particular, carrying out tasks at headquarters or involving telecommunication, or particularly confidential work). Generally speaking, only a small proportion of the military workers is not entitled to organise in the trade unions. These workers may form workers' councils.

Similarly, in accordance with section 14 of the Trade Union Act, workers employed in the military units and other organisational units subordinated to the Minister of the Interior are not entitled to form and join trade unions. This provision concerns workers employed in posts connected with transport, supply, telecommunications and technical branches of headquarters which are highly confidential jobs. These workers, in accordance with section 16 of the Trade Unions Act, may form workers' councils, similar to some categories of civil servants.

Article 9 of the Convention states that, "The extent to which the guarantees provided for in this Convention shall apply to the armed forces and the police shall be determined by national laws or regulations."

For many years the officials of prison establishments were part of the militia. After the reform which placed the prison establishments under the Minister of Justice, a separate structure was established: the prison service. From the standpoint of hierarchy and discipline it is similar to the militia and also, due to character of the service, its hierarchical structure and duties, it is treated as the militia.

It should be added here that both in doctrine and in practice the opinion prevails that the officials of the prison service, just like the officials of the militia and professional soldiers-are not workers in the sense of section 2 of the Labour Code. While the right to form and join trade unions is granted only to workers, the exclusion of persons who are the public servants in the sense of section 13 of the Trade Union Act does not justify any possible criticism, because it is in accordance with the legal order existing in Poland and corresponds to the spirit of the Convention.

The Trade Union Act guarantees to workers the right to strike and to trade unions the right to organise strikes. The right to participate in a strike is the individual right of a worker, exercised in accordance with his will, and the right to organise strikes is the exclusive right of a trade union.

The Act excludes from the right to strike workers in specific categories of enterprises or who occupy specific posts. These exclusions are justified by general considerations connected with the necessity of ensuring during the strike: the benefits and means necessary for the normal existence of the society; state security and defence, the normal functioning of state bodies and public service, and the fulfilment of international obligations of fundamental importance.

It should be added that it is the first regulation on the right to strike in the system of socialist property which differs from the market economy system. As regards those essential services in which the right to strike is limited, it will be possible after some time and in the light of acquired experience to analyse this problem and propose the elimination of some exclusions.

In particular, the Act unequivocally determines that the strike is the final means of settling a collective dispute in the struggle for the economic and social interests of a given workers' group. The admissibility of a strike depends, among other things, on the exhaustion of possibilities of settling the dispute through other means (such as direct negotiation, conciliation and social arbitration) and on the consent of the majority of staff in a given enterprise. Although political strikes are not acceptable, there is a broad possibility of resorting to other, less radical means which can express the demands of the workers.

In this context it should be stated that if the right to strike is the right of each worker and not only of trade unionists then it follows that the trade union must obtain the consent of the majority of workers when taking the decision to call a strike. The trade union organises the strike to defend the economic and social interests of a given group of workers.

Likewise, the strike must be the expression of the wish of the staff and refusal to participate in the vote may mean a lack of support for the intentions of the trade union as regards calling a strike. Refusal by the majority calls into question the support for the trade union's intentions, and the calling of the strike in such a situation would not fulfil its purpose.

A Government representative expressed pleasure at his delegation's participation in the Committee after an absence of four years and its renewal of a constructive dialogue with it. During that absence, his Government had submitted regular reports on the implementation of ILO Conventions and replied to the comments of the Committee of Experts. Further information was supplied in February of this year, and detailed written information had been communicated.

The Government representative further stated that prior to the enactment of the Trade Union Act of November 1982, his Government had consulted ILO experts and some of their observations had been incorporated in the Act voted by Parliament. Further amendments taking into account comments of the Committee of Experts, had been introduced in the version adopted by Parliament in July 1985. The main point at issue remained section 60(3) of the Act, which laid down the principle of trade union unity, or the existence of a single trade union in each enterprise. This was because in the early 1980s there had been major social unrest in Poland and a serious breakdown in the economy; so-called trade union pluralism had given rise to abuses. It had brought competing demands from unions and periods of strikes which had endangered economic objectives. In addition, many internal obstacles such as a shortage of raw materials and external difficulties arising from economic sanctions against Poland and the need to service the huge foreign debt had made economic recovery almost impossible. Thus, the principle of trade union unity had been adopted as a temporary solution but not one which would exclude pluralism, since each trade union could determine its own orientation. There were presently some 27,000 trade unions at the enterprise level, 116 federations, and 17 other national-level organisations, such as the teachers' union. A good number of the federations were associated in the All-Poland Consensus of Trade Union, but many others were outside that structure. At the enterprise level, in addition to the trade union organisations, there was a self-management council elected by the workers with extensive rights, influence on the management and supervisory power.

The Trade Union Act guaranteed workers the right to strike and unions the right to organise a strike, excluding this right only for specific categories of undertakings or specific posts. The Government representative stated that these regulations regarding the right to strike constituted a first for his country and they were sometimes regarded as having the most comprehensive scope in the world. It was difficult for the Government representative to endorse the opinion of the Committee of Experts when it considered that a simple majority of union members should be sufficient for a strike, and that the need for the approval of a higher trade union body should be eliminated. The Government representative stated that trade unions had to obtain the consent of the majority of workers when they went striking, because the right to strike was granted to all workers and not just union members, in order to defend the economic and social interests of a given group of workers. In an enterprise employing, for example, 3,000 workers (which was common in Poland), he wondered whether 500 would be sufficient to form a quorum. A strike must be an expression of the wish of the workforce. Refusal to participate in the voting by the majority of the workforce might mean an abstention and a lack of support for a strike.

As regards Convention No. 98, there were no limits on the right of citizens to choose their place of employment in accordance with their occupation or skills, and the principle of freedom of labour was included in Polish legislation. Further, there were no legislative provisions discriminating in the implementation of the right to work on grounds of trade union membership or activities. The Minister of Labour, Wages and Social Affairs was entitled, under legislation in force since 1 January 1987, to register collective agreements after verifying their conformity with legal provisions and the implementation of the national social and economic policy as determined each year by Parliament in the annual social and economic plan. In considering such conformity, the Minister does not interfere in the right of the parties to an agreement and his function is that of guardian of the general State policy. No agreement had yet been concluded under these provisions and the Minister's powers in this respect had not yet been invoked.

The Workers' members welcomed the participation of Poland in the Conference, which was in itself a very positive element and contributed to the dialogue on the basis of the work of this Committee. Such dialogue should not be destructive or negative but should aim at finding solutions and achieving progress. They could not, however, avoid regretting that the short period when real freedom of association had been possible was now over. It was often the case that action in the field of freedom of association might appear to run counter to economic and social welfare. The important problem here was the recognition of trade union pluralism. In a country like Poland, this should not provoke negative reactions or accusations of demagogy or anarchy. In many industrialised countries trade unions had taken courageous stands and had accepted sacrifices in view of economic crisis and the danger to their country's competitivity and economic viability; this applied in Western Europe and other countries whether there was a single trade union or several trade unions: the unions had accepted their responsibilities as regards employment and the economy. Without economic strength, there could be no employment or improvement in the standard of living.

From the information communicated in writing, it appeared that there were arguments presented by the Government which could be understood and required attention, but the mere fact that there were 27,000 enterprise-level organisations and 6 million members did not prove that pluralism existed, because there could only be one organisation in each enterprise. Although it was said that diversity of trade unions might be damaging to social order, there were cases in other countries where this did not happen and did not damage workers' well-being or the functioning of enterprises. It was this question of pluralism which was at the centre of the Workers' members concern. Whether there should be a single trade union structure or trade union pluralism was according to the Convention, a matter for the workers and not for the Government to decide. If it appeared that there was a wish for trade union pluralism in a country-there was sufficient proof that this wish existed in Poland-thought should be given as to how this could be implemented and action taken in consequence. In this context, it was said that for a period whose length was to be fixed by the Council of State, only one trade union organisation would be allowed in each enterprise. This meant-in the opinion of the Workers' members-that this would also be the case at the sectoral and national levels. The workers' members wondered what "transitional" meant. It was important for "transitional" not to become "eternal".

The Workers' members thanked the Government representative for the information provided, but they had hoped for a reply to the questions put by the ICFTU and the WCL to the Government of Poland, in the comments which they had submitted for consideration by the Committee of Experts. There were also restrictions on the right to strike which had been discussed in other countries and even justified in some conditions. But the definition of essential services was something which needed reviewing. The requirement as to 50 per cent plus 1, in order to call a strike, was not a matter for the public authorities but for the workers and their own organisations: if a strike was called without a sufficient majority, it would fail and this would damage the trade union leadership, so that it was in their own interests to ensure a majority in favour of such actions. The Workers' members hoped the Government would continue to provide full information also in regard to the question of approval of collective agreements in relation to Convention No. 98: where trade union were recognised and consulted and could participate in social and economic activities in a spirit of tripartism, there was no need to fear that collective agreements would run counter to economic and social interests of a country.

The Employers' members welcomed the Government representative's participation in the work of the Committee. They recalled that only a single trade union structure was officially allowed in Poland. This provision had originally been devised as a transitory measure, but everyone knew that "temporary" things lasted. The Government had referred to the Congress of the All- Poland Consensus of Trade Unions which had, in its opinion, indicated its preference for a single trade union structure. The detailed information communicated in writing by the Government would be examined by the Committee of Experts. The Government had referred to the existence of many trade unions at the enterprise level, but this was not a solution to the problem at hand. It appeared that in Poland the workers did not desire to have a single trade union structure, and that in practice there was discrimination. In practice some workers wished to form different trade unions but were not allowed to do so. Thus the present case was distinguished from other situations where that wish of the workers was not apparent. As regards Convention No. 98, both aspects of the problem, namely the right to organise and the right to collective bargaining, had to be dealt with and their implementation improved. It was clear that in Poland the law and practice were not in full compliance with Conventions. The dialogue should be continued in order to lead towards greater conformity.

The Worker member of France welcomed the presence of the Government representative of Poland, but regretted that the dialogue had not recommenced earlier; that might have avoided difficulties and misunderstandings. The Committee of Experts had expressed the hope the Government would take the necessary measures to amend legislation on several points which had been the subject of comment by all the supervisory bodies. In particular, a Commission of Inquiry set up after a complaint had been made under article 26 of the ILO Constitution had also looked at the application of Conventions Nos. 87 and 98. In its recommendations, in paragraphs 578 and 579, it had authorised the Committee of Experts to follow up the application of the Commission's recommendations, and this was in a sense the present task. He referred in addition to paragraph 576 of the report of the Commission of Inquiry, which had recommended amending the law to ensure firstly the right of workers without any distinctions whatsoever (including public servants) to establish trade unions; secondly, the right of workers to establish organisations of their own choosing, the recognition of this right implying the re-establishment in practice of the option of trade union pluralism at every level (undertaking, branch of activity, regional and inter-occupational); and thirdly, the right of local unions and federations to associate in confederations. The Worker member of France wished to have the Government representative's reply to these points. He also referred to the recent statement of a leader of the All-Poland Consensus of Trade Unions that the membership of Solidarity was still about 1 million. In 1983, when the Commission of Inquiry was established, its membership was thought to have been 1,200,000. The number remained very large and it was not surprising that there were problems when the right to collective expression was denied to these people. Most recently, Lech Walesa had been refused papers which would have enabled him to participate in the present Conference. There had been a series of other detentions followed by conditional release and possibly fines. One million workers could not be ignored and the important thing was that the existence of Solidarity should be authorised once more.

The Worker member of the United States supported the statement of the Worker member of France. The Committee had had lengthy discussions of the present case and the views of the Committee of Experts and the present Committee were clear. The Committee of Experts had been impartial and it had recognised that the Trade Union Act did not permit trade union pluralism in Poland. Such pluralism must be allowed but not imposed on the workers.

The Government member of Czechoslovakia also welcomed the presence of the Government representative of Poland and the good will shown be the Government: this meant the present Committee must discuss the case dispassionately, so as to create favourable conditions for the continued membership of Poland in the ILO. Reference had been made by one member of the present Committee to issues not mentioned in the report of the Committee of Experts. The Committee of Experts' observation was to a large extent based on views of two international trade union federations. The Government representative had explained convincingly that the actual situation in the country was different and that it was not correct to say that trade union unity was imposed by law. The Worker member of Poland had also made a relevant statement in the Conference Plenary: he had referred to a great number of self-governing unions as one possible model of pluralism. Several unions had come into existence under the Trade Union Act, and had their own by-laws, so that the argument that trade union unity was imposed by law was questionable. The Convention could not be interpreted to mean that in every enterprise there must be at least two trade unions and, in any case, the provision in question was only transitional. The Trade Union Act was a major step forward and the fact that there are 6 million trade unionists in Poland speaks for itself. Some minor points remained, such as mentioned in the second point of the observation as to the right of prison officers to organise, but on the whole, the Committee should express its satisfaction concerning the development of the trade union situation in Poland.

The Worker member of Poland stated that there were over 7 million members of the All-Poland Consensus of Trade Unions. He wondered whether certain members of the present Committee did not wish to divide the trade union organisations into good and bad organisations.

The Government representative of Poland welcomed the dialogue in the Committee and recognised that there were differences of opinion and sometimes there was incomplete knowledge of the trade union situation in Poland. As before, the Government would do everything to comply with ILO Conventions. He repeated that the requirement of only one trade union per enterprise was a transitory measure and that, at the higher level, there was a variety and multiplication of structures. As for the document referred to by the Worker member of France, the Government had many times repeated its position on this matter. The Government representative pointed out, however, that Solidarity had been dissolved by an Act of Parliament on 8 October 1982, and not by administrative measures. It was dissolved not as a trade union, but as an organisation which went beyond the trade union framework. Over 60 per cent of the workers affected by trade union activities were now acting through the existing trade union structures, within, or outside of, the All-Poland Consensus. The Government representative did not accept the criticism voiced by a member of the present Committee whose country had not ratified any ILO Conventions on human rights, when he expressed his views on the right to strike, collective bargaining and freedom of association.

The Government member of the United States commended the Committee of Experts' observation on the issues of freedom of association, the right to organise and collective bargaining and the right of trade unions to functions independently, which were of continuing importance to the ILO. The actions of Solidarity members brought these matters continually to the ILO's attention. The Committee of Experts had said that it was bound to emphasise that a system of trade union unity imposed by law is not in conformity with the principle the free choice of workers to form their own organisations as provided for under Convention No. 87 and had referred specifically to section 53(4) of the Trade Union Act. He agreed with the Committee of Experts and hoped the Government would take the necessary action to lift present restrictions very shortly and to comply fully with Convention No. 87.

The Government member of the USSR also welcomed the participation of the Government representative of Poland and of the Worker member of Poland, which encouraged hopes of constructive dialogue and closer work in the Committee on the basis of mutual understanding in regard to the application of Conventions ratified. The Government representative had explained fully the matters referred to be the Committee of Experts and had spoken frankly of the difficulties experienced in Poland, and the reasons behind legislation relating to the Conventions in questions. The present speaker recalled the discussion of working methods of the Conference Committee. He cited the example of injustice where country A had ratified a Convention and had given a reply to the Committee and country B, which had also ratified the Convention, had refused to do so. He added that it was unfair for country C, which had not ratified the Convention, to give enthusiastic advice as to how it should be implemented, and this should be avoided. Such a case had now arisen. It was recognised by the speaker that difficulties were experienced but there were no general criteria for assessing the situation. A sovereign state was involved and its participation in the ILO should not interfere with sovereignty. However, even the Committee of Experts had provided a poor example in this respect by addressing itself to the Council of State, hoping it would take steps to amend legislation; and in the following sentence it had referred to the Constitutional Court. This meant that the Committee of Experts was going over the head of the Government and that was not proper. The development of trade unions in Poland could only be determined by internal conditions, and Polish workers and their unions should be left to decide for themselves how the process should take place. The present Committee should wish Polish trade unions success in this and not impose restrictions on them in the form of concepts from the outside and imposed criteria.

The Employer member of the United States also welcomed the participation of the Government representative of Poland but pointed out that there was no prohibition in the ILO Constitution or Standing Orders of the Conference as to participation in the present Committee by a country which had not ratified a Convention under discussion. His country implemented the principles of Convention No. 87, including trade union pluralism. The Committee of Experts had emphasised the importance of tripartism in the ILO and tripartism was practised in the United States. The employers in the United States believed that a Convention should be applied in full before it was ratified, and, since 1980, the United States had been making progress in examining Conventions. It was thus inappropriate to say that members from the United States should not participate in the present discussion.

The Worker member of the United Kingdom also welcomed the Government representative but expressed his general distrust of governments, particularly in regard to trade union affairs. The question was not whether there should be one or two trade unions, but the freedom to choose should belong to the workers, and the case in point was Solidarity. It was important that the name of Solidarity be mentioned because it was well known that this organisation exists and receives popular support. Now there was the creation of another trade union group in Poland which also claimed popular support. The real issue was what happened between the old popular movement and the new; that is the question that has to be answered. The Committee of Experts had suggested that in the process, Convention No. 87 had been violated. The speaker recongised the principle of state sovereignty but nevertheless the ratification of the Convention implied international obligations that had to be respected.

The Workers' members pointed out that when a country belonged to an international organisation and had accepted obligations on ratifying Conventions, the question of sovereignty was affected. The present discussion had been important and the outcome should lead to further dialogue and progress, taking account of the views of the present Committee and the Committee of Experts.

The Government member of France welcomed the dialogue which was taking place. He stated that it was natural that the economic crisis should be taken into account for the moment but he hoped that measures would be taken to reply to the simple question as to how to turn de facto pluralism into de jure pluralism.

The Committee took note of the discussion and in particular of the information supplied by the Government representative. The Committee welcomed the fact that a frank and open dialogue had been re-opened with the Government on the application of the Conventions. The Committee noted that important divergencies remained between the national legislation and practice and the Conventions, particularly as regards the right of workers to establish organisations of their own choosing and as regards the right to strike, the right to protection against acts of anti-union discrimination, and the right to collective bargaining. The Committee emphasised the importance it attaches to the dialogue that had been resumed this year, and to pursuing such a dialogue in order to overcome the difficulties encountered in the application of the Conventions. The Committee expressed the firm hope that the Government would soon take the necessary steps to ensure that the principles contained in the Conventions are fully applied both in law and in practice and that it would submit full information for examination by the Committee of Experts next year.

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

The Committee notes the observations of the National Commission of the Independent and Self-Governing Trade Union (NSZZ) “Solidarność” received on 1 September 2022, as well as the observations of the All-Poland Alliance of Trade Unions (OPZZ), transmitted with the Government’s report, referring to the issues examined by the Committee below.

Article 3 of the Convention. Right of organizations to organize their activities in full freedom and to formulate their programmes. The Committee had previously requested the Government to ensure that workers’ organizations were able to express, if necessary, through protest actions, their views more broadly as regards economic and social matters affecting their members’ interests. It referred, in this respect, to sections 1 and 17 of the Law on Collective Labour Disputes, according to which, a collective dispute between employees and an employer or employers may only relate to working conditions, wages, social benefits, union rights and freedoms of employees or other groups of persons who enjoy the right to organize, and that a strike is a collective labour stoppage by employees for the purpose of settling a dispute concerning the above-mentioned matters. The Committee notes the Government’s indication that the draft Law on Collective Labour Disputes, which entered into the list of legislative and programme works of the Council of Ministers on 1 July 2022, broadens the definition of collective disputes to cover all collective matters in which trade unions represent individuals performing paid work in relation to professional, economic or social interests or rights related to the performance of work. The Committee recalls that occupational and economic interests which workers defend through the exercise of the right to strike, or the conduct of protest actions more broadly, do not only concern better working conditions or collective claims of an occupational nature. The Committee notes that the NSZZ “Solidarność” alleges several shortcomings in the draft Law, in particular, as concerns the narrow scope of the subject matter of an industrial dispute and the exercise of the right to strike of workers in large companies. The Committee therefore requests the Government to review the draft law on Collective Labour Disputes in consultation with the social partners with a view to ensuring that workers’ organizations are able to exercise the right to strike and express through protest actions more broadly, their views as regards economic and social matters affecting their members’ interests.

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

The Committee notes the observations of the International Trade Union Confederation (ITUC) and of the Independent and Self-Governing Trade Union (NSZZ) “Solidarność”, received on 1 September 2022, as well as the observations of the All-Poland Alliance of Trade Unions (OPZZ), transmitted with the Government’s report, referring to the issues examined by the Committee below. The Committee takes note of the Government’s reply to the observations received and requests it to provide its comments in relation to the ITUC’s alleged violations of unions’ rights in organizing strike referendums and social elections.

Articles 2 and 9 of the Convention. Right of workers, without distinction whatsoever, to establish and join trade unions. In its previous comments, the Committee had noted the allegations made by the NSZZ “Solidarność” that the Act on Universal Defense prohibited soldiers of the territorial defense forces, who were at the same time private sector employees, to establish and join trade unions in the private sector. In this respect, the Committee notes the information provided by the Government that the Act in question was repealed and replaced by the Act of 11 March 2022 on the Defense of the Homeland. In particular, the Committee takes due note that pursuant to section 328(5) of the Act, soldiers who are not professional soldiers are prohibited to establish and join trade unions, or take part in the activities of trade unions of which they were members at the time of their appointment to service, and that pursuant to section 328(6), this prohibition does not apply to soldiers of territorial defense serving on a rotational basis, except where trade union activities are related to the performance of their military service.

Article 3.Right of organizations to elect their representatives in full freedom, to organize their activities, and to formulate their programmes.Civil service. The Committee had previously referred to the need to amend section 78(6) of the Act on Civil Service, which prohibits members of the civil service occupying senior positions to exercise trade union functions. In this respect, the Committee notes the Government’s expressed intention to address this issue in consultation with the social partners on the occasion of the amendment of the Act. The Committee had also requested the Government to amend section 78(3) of the same Act, which forbids civil servants to participate in strikes or actions of protest interfering with the normal functioning of the office, and trusted that the Government would consider establishing a procedure for determining which public servants enumerated in section 19(3) of the Law on Collective Labour Disputes and in section 2 of the Act on the Civil Service were exercising authority in the name of the State and for whom the right to strike could therefore be restricted. Recalling that it had previously welcomed the Government’s indication that a draft law dealing with the right of public employees to strike was submitted to the Council of Ministers, the Committee notes with regret the Government’s indication that at present, there are no legislative initiatives to amend section 78(3) of the Act on Civil Service. Recalling that for a number of years it has been commenting on the discrepancies between section 78(3) and (6) of the Act on Civil Service Act and the Convention, the Committee urges the Government to take all necessary steps to expedite the process of amendment of this Act, so as to ensure that civil servants may exercise their trade union functions at all levels and that the right to strike is granted to all public servants, with the possible exception of public servants exercising authority in the name of the State. It requests the Government to provide information on all progress made in this regard.

The Committee is raising other matters in a request addressed directly to the Government.

Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

Article 3 of the Convention. Right of organizations to organize their activities in full freedom and to formulate their programmes. The Committee notes the conclusions and recommendations of the Committee on Freedom of Association in Case No. 3111 drawing the legislative aspects of the case to the attention of the Committee of Experts (see Report No. 378, June 2016, paragraphs 647–718). The Committee notes, in particular, sections 1 and 17 of the Collective Labour Disputes Act, according to which, a collective dispute between employees and an employer or employers may only relate to working conditions, wages, social benefits, union rights and freedoms of employees or other groups of persons who enjoy the right to organize, and that a strike is a collective labour stoppage by employees for the purpose of settling a dispute concerning the above-mentioned matters. The Committee considers that the occupational and economic interests which workers defend through the exercise of the right to strike do not only concern better working conditions or collective claims of an occupational nature, but also the seeking of solutions to economic and social policy questions and problems facing the undertaking which are of direct concern to the workers. The Committee requests the Government to take the necessary measures in order to ensure that workers’ organizations are able to express, if necessary, through protest actions, more broadly, their views as regards economic and social matters affecting their members’ interests.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

The Committee notes the observations of the National Commission of the Independent and Self-Governing Trade Union (NSZZ) “Solidarność” received on 9 August 2018. The NSZZ alleges that the Act on Universal Defence prohibits soldiers of the territorial defence forces, who are at the same time private sector employees, to establish and join trade unions in the private sector. The Committee notes the Government’s indication that a draft legislation to amend the Act so as to grant soldiers of the territorial defence serving on a rotational basis association rights, unless the trade union activity is related to the performance of their military service, is currently being prepared for presentation to the Standing Committee of the Council of Ministers. The Committee requests the Government to provide information on the developments in this respect. The Committee further notes the observations of the International Trade Union Confederation (ITUC) received on 1 September 2018 alleging violations of the principle of genuine tripartite consultation at the national level, and the Government’s detailed response thereon. The Committee also notes the observations of the All-Poland Alliance of Trade Unions (OPZZ) received on 27 August 2018 which relate to the legislatives issues raised by the Committee below.

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 trusted that the draft Act on Trade Unions would be adopted in the near future so as to guarantee the right to 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 notes that the draft Act on Trade Unions was signed on 25 July 2018 and should enter into force on 1 January 2019. The Committee notes with satisfaction that under the amended Act, the right to establish and join trade unions will be extended to “persons working for money”, which includes not only employees but also any person providing work for remuneration irrespective of the legal basis of contractual relationship. The Government indicates that the new definition of “a person working for money” means that membership in trade unions will now be open to persons hired under a mandate, contract for provisions of service, contract to perform specific tasks, as well as self-employed (i.e. sole traders and persons running a one-person business, other than in agriculture). Volunteers, interns and other persons who work without receiving remuneration will also be granted the right to join trade unions on the terms and conditions specified in the trade unions’ by-laws.

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, members of the civil service occupying senior positions cannot exercise trade union functions, and requested the Government to amend this provision so as to ensure that the right to elect representatives in full freedom, as well as the right to perform trade union functions is granted to all workers in the public service in their respective trade union organizations. The Committee notes that the Government reiterates its intention to remove this discrepancy on the occasion of the upcoming revision of the Act. The Committee firmly hopes that section 78(6) of the Act on Civil Service will be amended in consultation with the social partners without further delay. It requests the Government to provide a copy of the amended Act.

Right of organizations to organize their activities in full freedom and to formulate their programmes. The Committee had 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. The Committee had trusted that the Government would 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 were exercising authority in the name of the State and for whom the right to strike could therefore be restricted. In this regard, the Committee suggested 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 notes the recommendation to the same effect made by the Committee on Freedom of Association in Case No. 3111 (see Report No. 378, June 2016, paragraphs 647–718). The Committee welcomes the Government’s indication that a draft law dealing with the right of public employees to strike was submitted to the Council of Ministers. It requests the Government to provide information on all progress made in amending the Act on Civil Service so as to ensure the right to strike of civil servants, with the only possible exception of public servants exercising authority in the name of the State.

The Committee is raising other matters in a request addressed directly to the Government.

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

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).

Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

The Committee notes the comments submitted by the International Trade Union Confederation (ITUC), dated 4 August 2011, on the application of the Convention and the Government’s reply thereon. The Committee also notes the comments of the ITUC, dated 31 July 2012, referring to issues already highlighted by the Committee, as well as to allegations linked to the application of the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). Finally, the Committee notes the comments from the National Commission of the Independent and Self-Governing Trade Union (NSZZ) “Solidarnosc”, dated 30 August 2012, referring to the application of the Convention and in particular to Case No. 2888 examined by the Committee on Freedom of Association.

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 took note of the information provided by the Government and of the comments by the ITUC alleging that workers in state-owned enterprises in the health sector, as well as in the 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 also noted that, according to the Government, 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 contract, since they could not be considered employees under section 2 of the Labour Code. The Committee recalled 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. It requested the Government to provide information on any measures taken or envisaged to amend its legislation so as to bring it into conformity with the Convention. The Committee notes that the Committee on Freedom of Association, when examining a complaint submitted by the National Commission of the NSZZ “Solidarnosc”, also requested the Government to take the necessary measures to ensure that all workers, without distinction whatsoever, including self-employed workers and those employed under civil law contracts, enjoyed the right to establish and join organizations of their own choosing within the meaning of the Convention (see 363rd report of the Committee, Case No. 2888). The Committee notes that the Government indicates in its report that: (1) the Ministry of Labour and Social Policy has prepared a draft law amending the Act on trade unions, which provides for the extension of the right to form trade unions to outworkers (according to the Government, these workers can only join trade unions); (2) the Tripartite Committee for Socio-economic Affairs decided in June 2012 to start an in-depth discussion on the problem of people working on the basis of civil law contracts, including their right to organize in trade unions; (3) this issue will be addressed at the forum of problem groups of the Tripartite Committee for Socio-economic Dialogue; and (4) there will also be a wider discussion within the framework of the Tripartite Commission on changes in national legislation on the right to organize and it will examine, inter alia, the possibility of extending the right to organize to self-employed people. The Committee welcomes the initiatives on potential improvements to the legislation and hopes that any legislative reform will take account of the abovementioned principles. The Committee requests the Government to provide information in is next report on any progress made in this respect.

Article 3. Right of organizations to elect their representatives in full freedom. The Committee recalls that it noted in its previous observation the entry into force of the Act on the civil service, 2008, and that according to its section 78(6), members of the civil service occupying senior positions cannot exercise trade union functions. The Committee recalls 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; all workers in the public service should also have the right to perform trade union functions in their respective trade union organizations. The Committee notes that, according to the Government, all the necessary steps to eliminate the incompatibility with Article 3 of the Convention will be taken at the next revision of the Act in question. The Committee hopes that the revision of section 78(6) of the Act on the civil service will be made in the near future and that it will take into account the principle mentioned above.

Right of organizations to organize their activities in full freedom and to formulate their programmes. The Committee recalls that in its previous comments, it requested the Government to specify categories of employees whose right to strike was restricted and to provide information on the practical application of the right to strike by such employees. The Committee notes that, according to the Government, section 78(3) of the Act on the civil service forbids public servants to participate in a strike or industrial action interfering with the normal functioning of the office. In this respect, the Committee recalls that public servants who do not exercise authority on behalf of the State must be able to exercise the right to strike. The Committee trusts that in the context of the revision of the Act on the civil service, to which the Government refers in the previous paragraph, the necessary measures will be taken to acknowledge the abovementioned principle.

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

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.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes the Government’s reply to the 2006 comments submitted by the International Confederation of Free Trade Unions (ICFTU). Regarding the Road Traffic Law (1997), which the ICFTU considered made it almost impossible for trade unions to organize legal demonstrations and rallies, the Committee notes the Government’s indication that it no longer applies to assemblies and strikes, following the 2006 decision of the Polish Constitutional Tribunal. Furthermore, the Committee notes the comments submitted by the International Trade Union Confederation (ITUC, previously ICFTU) in a communication dated 29 August 2008 concerning violent dispersion of a sit-in organized by the healthcare workers affiliated to the All-Poland Trade Union Alliance (OPZZ). The Committee requests the Government to submit its observations thereon, as well as on the 2006 ICFTU comments alleging that workers in state-owned enterprises in health sector, water and forestry industries had their employment contracts terminated and replaced by individual contracts so that they could no longer be trade union members.

Article 3 of the Convention. 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) so as to ensure that public servants may exercise their trade union functions at all levels. The Committee notes from the Government’s report that the Council of Ministers directed to the Sejm (the lower chamber of the Parliament) a draft Act on amending the Law on Civil Service. The Committee further notes the Government’s statement that the draft provides an amendment of article 49(6) of the Civil Service Act of 24 August 2006, which shall read as follows: “civil service member occupying a higher civil service post cannot perform any trade union function”. The Committee considers that some categories mentioned by the Government, as included in section 49(6) of the draft (deputies of voivodship veterinary offices, persons in charge and deputies of organizational units in the Central Inspectorate of Trade Inspection, Office for Registration of Medicinal Products, Medical Devices and Biocidal Products, and Office for Forest Seed Production) are covered by the Convention and therefore should be able to exercise trade union functions. The Committee hopes that the draft Act will take into account its comments and requests the Government to provide information in this respect.

Right of organizations freely to organize their activities and to formulate their programmes. The Committee recalls that it had previously requested the Government to amend section 49(3) of the Law on Civil Service (2006) so as to ensure that prohibition of the right to strike is limited to public servants exercising authority in the name of the State. The Committee notes that the Government indicates that the draft Act does not propose to amend section 49(3) of the abovementioned Law. According to the Government, the civil service concerns government administration exclusively, thus it should be assumed that civil service members participate in exercising authority on behalf of the State. Civil service members may, however, undertake protest actions which do not disturb normal functioning of offices. The Committee notes that the Government indicates that all employees employed in the state authorities, government and self-government administrations, courts and prosecutor’s office are not entitled to the right to strike. The Committee requests the Government to specify categories of employees whose right to strike is restricted under section 49(3) of the Law on Civil Service.

Trade union assets. With regard to its previous request to provide information on the proceedings before the Social Revendication Commission and the administrative courts concerning trade union assets, the Committee notes with interest the Government’s indication that the Commission ruled in favour of the NSZZ Solidarnosc and obliged the State Treasury to pay the trade union organization concerned the amount it claimed along with the statutory interest due on the date of the decision.

The Committee notes that the Labour Code of 1974 was amended in 2008. It therefore requests the Government to provide a copy of the amended Code.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee takes note of the information provided by the Government in its report.

The Committee further notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 31 August 2005 and 10 August 2006 alleging, among other issues, the denial of trade union rights to civil servants and limitations to the right to strike. The Committee notes the recent communication of the Government which replies to the ICFTU’s comments. The Committee will examine the ICFTU’s comments and the Government’s reply at its next session.

Article 3 of the Convention. The Committee recalls that its previous comments concerned the following prohibitions imposed upon civil service employees and civil servants by the Law on Civil Service (1998): section 69(3), prohibition on participating in strikes or protest actions and section 69(4), prohibition on performing functions within trade unions.

The Committee notes the Government’s statement that, on 22 July 2006, a new Law on Civil Service was adopted and that section 49(3) and (6) prohibits members of the civil service to participate in a strike or protest disrupting normal functioning of the office, as well as to fulfil trade union functions. These provisions are equivalent to the previous provisions contained in section 69(3) and (4) of the Law of 1998. Moreover, the Government indicates that, on 3 August 2006, the Senate of the Republic of Poland passed a resolution concerning the Law on Civil Service of 2006. This resolution seeks to amend new section 49(6) so as to provide that civil service officials may not fulfil trade union functions at the level higher than enterprise or inter-enterprise. The lower chamber of the Parliament will now decide whether to introduce the above amendment. The Committee recalls that the guarantees contained in the Convention apply to workers in the public services, including the right to perform trade union functions at all levels. The Committee therefore requests the Government to take the necessary measures so as to amend new section 49(3) of the Law on Civil Service so as to ensure that public servants may exercise their trade union functions at all levels and to keep it informed in this respect.

As concerns the right to strike, the Committee considers that any prohibition of the right to strike in the public services should be limited to public servants exercising authority in the name of the State. The Committee recalls, however, that such workers lose an essential means of defending their interests and thus should be afforded appropriate guarantees to compensate for this restriction, for example, conciliation and mediation procedures, leading, in the event of deadlock, to arbitration machinery acceptable to the parties concerned. It is essential that the workers be able to participate in determining and implementing the procedure, which should furthermore provide sufficient guarantees of impartiality and rapidity; arbitration awards should be binding on both parties and, once issued, should be implemented rapidly and completely (see 1994 General Survey on freedom of association and collective bargaining, paragraphs 158 and 164). Therefore, the Committee requests the Government to take the necessary measures to amend the Law on Civil Service so as to ensure that prohibition of the right to strike is limited only to public servants exercising authority in the name of the State and to keep it informed in this respect. It furthermore requests the Government to provide in its next report information on the compensatory guarantees available to the civil service corps employees whose right to strike under the Convention may be restricted.

Trade union assets. The Committee regrets that the Government provided no information as to the proceedings before the Social Revendication Commission and the administrative courts concerning trade union assets. The Committee once again requests the Government to keep it informed of further developments in this regard.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the information provided by the Government in its report.

1. Article 3 of the Convention. The Committee recalls that its previous comments concerned various prohibitions imposed upon civil service employees and civil servants by the Law on Civil Service, namely: section 69(2), prohibition on manifesting publicly political beliefs; section 69(3), prohibition on participating in strikes or actions of protest; and section 69(4), prohibition on performing functions within trade unions.

(a) The Committee takes due note of the Government’s statement responding to its previous request concerning section 69(2) that the restriction of the right to manifest in public one’s political opinions is no impediment for a member of the civil service fulfilling a trade union function to express in public within the framework of this function, his or her opinion on issues connected with politics and governmental policies in the economic and social sphere. The Government further explains that the provision is rather to be interpreted in such a manner that a member of the civil service may not express any preference for the programmes and activities of specific political formations and states that this provision is necessary to avoid situations where the opinion of a government administration employee could be mistaken as the official position of the concerned public authority.

(b) The Committee takes due note of the Government’s statement that section 69(3) of the Law on Civil Service does not deprive the members of the civil service corps of the right to strike, but prohibits their participation in such strikes or protest actions that would disturb the normal functioning of the office. The Committee recalls however that when legislation deprives public servants who exercise authority in the name of the state or workers in essential services of the right to strike, such workers lose an essential means of defending their interests and thus should be afforded appropriate guarantees to compensate for this restriction, for example, conciliation and mediation procedures, leading, in the event of deadlock, to arbitration machinery seen to be reliable by the parties concerned. It is essential that the workers be able to participate in determining and implementing the procedure, which should furthermore provide sufficient guarantees of impartiality and rapidity; arbitration awards should be binding on both parties and once issued, should be implemented rapidly and completely (see General Survey on freedom of association and collective bargaining, 1994, paragraph 164). The Committee therefore once again requests the Government to provide in its next report information on the compensatory guarantees available to the civil service corps employees whose right to strike under the Convention may be restricted.

(c) The Committee notes that a draft amendment of the Law of 18 December 1998 on the civil service prepared in 2003 which proposed abrogation of section 69(4) has not been approved by the Standing Committee of the Council of Ministers. The Committee notes that for this reason, in the beginning of 2004, a working group was created with the task of drafting a new text of this Law and that the work is yet to be completed. Recalling that the autonomy of organizations can only be effectively guaranteed if their members have the right to elect their representatives in full freedom, the Committee hopes that in the very near future, a new text of the Law will be drafted taking into account its previous comments and approved. The Committee requests the Government to keep it informed about developments in this regard and to provide it with the amended text as soon as it is adopted.

2. Trade union assets. The Committee takes note of the proceedings before the Social Revendication Commission and the administrative courts. The Committee expresses the hope that these issues will be resolved in the very near future and requests the Government to keep it informed of further developments in this regard.

3. The Committee notes with interest the Government’s statement that the Law of 26 July 2002 amending the Labour Code and some other laws has modified the Law on Trade Unions, in particular, through the addition of section 25 which permits persons performing work on the basis of a homework contract and officials of the police, frontier guards and prison guards to establish trade unions.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee notes the information supplied by the Government in its report.

1. Article 3 of the Convention. The Committee recalls that its previous comments concerned various prohibitions imposed upon civil service employees and civil servants by the Civil Service Act, namely: article 69(2), prohibition on manifesting publicly political beliefs; article 69(3), prohibition on participating in strikes or actions of protest; article 69(4), prohibitions on performing functions within trade unions.

(a)  The Committee notes with interest that the Government states that it will take measures to repeal article 69(4); it requests the Government to keep it informed of developments in this respect and to provide it with the amended text as soon as it is adopted.

(b)  The Committee notes the Government’s explanations regarding the restrictions on the right to strike (article 69(3)). The Committee recalls that, when the legislation deprives public servants who exercise authority in the name of the State or workers in essential services of the right to strike, such workers lose an essential means of defending their interests and thus should be afforded appropriate guarantees to compensate for this restriction. The Committee requests the Government to provide in its next report information on the compensatory procedures available to those employees whose right to strike, under the Convention, may be restricted or prohibited.

(c)  While noting the Government’s explanations regarding the prohibition on expression of political opinions, the Committee recalls that trade union activities cannot be restricted solely to occupational matters, since a government’s choice of a general policy may have an impact on workers in both the private and public sectors, and that public servants in the exercise of their trade union activities should be able to voice their opinions on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy. The Committee requests the Government to amend article 69(2) with a view to bringing the legislation into conformity with the Convention, and to provide information in its next report on progress in this respect.

2. Trade union assets. The Committee notes that, on 12 January 1999, the Council of Ministers issued an ordinance laying down the principles for discharging the state liabilities, resulting from the decisions of the Social Revendication Commission. Provisions were made in this respect in the 1999 and 2000 budgets, but due to budgetary difficulties, non-cash liabilities resulting from decisions of the Commission up to 31 December 2001 have been discharged with treasury bonds, and liabilities in respect of decisions made after 31 December 2001 are currently discharged in cash by the Voivods. According to the Government, there are only nine proceedings pending before the Supreme Administrative Court against decisions of the Commission. The Committee, once again, expresses the hope that these issues will be resolved in the very near future and requests the Government to keep it informed of further developments in this matter, including judicial decisions that may be issued thereon.

3. Articles 3, 5 and 6. Representativeness of trade unions. The Committee notes the adoption, on 9 November 2000, of the Act amending the Labour Code; it notes the disjunctive nature of the representativeness criteria at both national and enterprise level, as well as the subsidiary criterion whereby organizations regrouping the largest number of workers are recognized as representative for collective bargaining purposes. The Committee also notes the adoption, on 6 July 2001, of the Act on the Tripartite Commission for socio-economic issues and Voivodship social dialogue commissions, which establishes representativeness criteria for social dialogue at the national level. The Committee requests the Government to inform it in its next report of the operation of these Acts in practice.

4. The Committee takes notes of article 48 of the Act of 24 July 1999, which provides that customs officers may associate in trade unions.

5. The Committee notes the Government’s statement, in reply to earlier comments of the Trade Union of Medical Analysts and Technicians and the National Trade Union of Nurses and Midwives, that no legal provisions impose upon employees of the public health-care system the obligation to change conditions of employment from full-time employment into a civil law relationship.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee notes the information supplied by the Government in its report. It also takes note of the comments submitted by the Trade Union of Medical Analysts and Technicians and the National Trade Union of Nurses and Midwives.

1.  Articles 2 and 3 of the Convention. Right of workers without distinction whatsoever to establish and join organizations. With reference to its previous comments concerning the right to organize of public employees, the Committee notes the adoption in 1998 of a new law on civil service, which replaces the previous legislation on this subject. It notes that, according to the Government, the new legislation does not provide for any prohibition of association in the civil corps. The Committee notes however that the Civil Service corps now comprises two categories of employees: "Civil Service employees … employed on the basis of an employment contract" (article 3.1) and "Civil servants … employed by virtue of nomination" (article 3.2), with different rights:

(i) article 69(2) of the Civil Service Act provides that Civil Service corps members are not allowed to publicly manifest their political beliefs. The Committee recalls that trade union activities cannot be restricted solely to occupational matters, since a government’s choice of a general policy may have an impact on workers in both the private and public sectors, and that public servants in the exercise of their trade union activities should be able to voice their opinions on political issues in the broad sense of the term and, in particular, to express their views publicly on a government’s economic and social policy;

(ii) article 69(3) provides that "Civil Service corps members are not allowed to participate in strikes or actions of protest, which will interfere with the normal functioning of the office". The Committee recalls that the prohibition of the right to strike in the public service should be limited to public servants exercising authority in the name of the State and that, in borderline cases, one solution might be to provide for the maintaining by a defined and limited category of staff of a negotiated minimum service when a total and prolonged stoppage might result in serious consequences for the public;

(iii) article 69(4) provides that "Civil servants are not allowed to perform functions within trade unions". The Committee recalls that the autonomy of organizations can only be effectively guaranteed if their members have the right to elect their representatives in full freedom, which does not appear to be the case under this provision.

The Committee requests the Government to amend these provisions with a view to bringing the legislation into full conformity with the Convention, and to provide information in its next report on progress in this respect. The Committee further requests the Government to provide in its next report information on the application in practice of this new legislation, including judicial decisions, if any.

(b)  The Committee notes the entry into force of the Act of 24 July 1999 concerning the customs service which provides in article 48 that customs officers may associate in trade unions, and requests the Government to send a copy of this legislation.

(c)  The Committee notes the comments made by the Trade Union of Medical Analysts and Technicians and the National Trade Union of Nurses and Midwives, regarding the obligation imposed upon employees of the public health care system, under threat of redundancy, to change conditions of employment from full employment in relation to the civil law regime, which allegedly aims at the reduction of its members and eventual liquidation of the organizations. The Committee requests the Government to provide in its next report information concerning the right of these employees to establish and join organizations of their own choosing.

2.  Trade union assets.  Referring to the need to amend the Act of 25 October 1990 concerning the restitution of trade union assets, the Committee notes the Government’s statement that the Social Revendication Commission is competent in this domain, but is bound to observe that no material progress has been made as regards the draft amendments which were to be examined by the Council of Ministers in the autumn of 1998. The Committee, once again, expresses the hope that these issues will be resolved in the very near future; it requests the Government to keep it informed of any developments in this matter and to provide a copy of the relevant text as soon as it is adopted.

3.  Articles 3, 5 and 6. Representativeness of trade union organizations. Referring to the need to amend the provisions of trade union legislation on the representative nature of trade union organizations, the Committee notes that two draft pieces of legislation are currently being debated in Parliament: the Act concerning the change of the Labour Code and the change of some Acts, which introduces the criteria of representativeness in social dialogue and collective bargaining at an enterprise level, and eliminates any doubts concerning representativeness at the supra-enterprise level; and the Act concerning the Commission for Socio-Economic Issues, which provides for criteria of representativeness for organizations of social partners in social dialogue at the national level. The Committee requests the Government to inform it in its next report of progress made in this regard and to provide it with a copy of these Acts as soon as they are adopted.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee notes the information supplied by the Government in its report.

1. Articles 2 and 3 of the Convention. Right of workers without distinction whatsoever to establish and join organizations. With reference to its previous comments and the comments of the "Solidarnosc" trade union, the Committee noted that the Government had given assurances that a Bill was being examined to amend the Trade Union Act of 23 May 1991 which imposed restrictions on the right to organize of officials holding senior posts (sections 40 and 42), so as to ensure that this category of public servants had the right to form and join organizations for the defence of their interests. In this regard, the Committee notes with satisfaction the Act of 21 May 1997 on the amendment of the Act concerning the Supreme Chamber of Control and on the change of the Trade Union Act which provides, in its article 1, that article 86 of the Act of 23 December 1994 on the Supreme Chamber of Control now reads as follows: "1. Employees of the Supreme Chamber of Control, with the exception of the president, deputy presidents, director-general, directors and deputy directors of organizational units and advisers to the President, have the right to associate in trade unions;" and that "2. Employees who supervise or perform control functions may become members of a trade union associating exclusively with employees of the Supreme Chamber of Control. In the Supreme Chamber of Control only trade unions may function with associates employees, referred to in the previous sentence."

In addition, the Committee notes the Government's statement according to which legislative work is being carried out in order to draft a new Act concerning the civil service, which would not provide for the prohibition of the trade union membership of civil servants (even at higher levels). The Committee requests the Government to send it a copy of the new Act as soon as it is adopted.

2. Trade unions' assets. Referring to the need to amend the Act of 25 October 1990, entered into force in August 1996, concerning the restitution of trade union assets, the Committee notes the Government's statement that the Minister of Labour and Social Policy prepared and submitted on 29 June 1998, for interministerial consultations, the necessary draft amendments of the Act and that this draft text should be examined by the Council of Ministers in autumn 1998. The Committee expresses the hope that these issues will be resolved in the near future so that the trade unions may exercise their activities effectively, in full independence and on an equal footing. In addition, the Committee requests the Government to send it a copy of the relevant text when it is adopted.

3. Articles 3, 5 and 6 of the Convention. Representativeness of trade union organizations. Referring to its previous comments with regard to the need to amend the provisions of trade union legislation on the representative nature of trade union organizations, the Committee notes the Government's information that the criteria of representativeness will be predetermined and impartial. The Committee asks the Government to keep it informed in its next reports of any developments in this field.

Direct Request (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information contained in the Government's report.

Articles 2 and 3 of the Convention. With reference to its previous comments and the comments of the "Solidarnosc" trade union, the Committee notes that the Government had given assurances that a Bill was being examined to amend the Trade Union Act of 23 May 1991 which imposed restrictions on the right to organize of officials holding senior posts (sections 40 and 42), so as to ensure that this category of public servants had the right to form and join organizations for the defence of their interests.

The Committee notes the contents of the text of the Act of 5 July 1996 on the civil service. Under section 49(3) of this Act, civil servants classified in category A are not allowed to establish trade unions nor to participate in trade union activities; their membership in trade unions ceases by virtue of the law as soon as they are incorporated into the A category which, according to section 28 of the Act, comprises persons exercising high-level managerial positions.

In this regard, the Committee considers that barring public servants holding managerial or supervisory positions of trust from the right to join trade unions which represent other workers is not necessarily incompatible with freedom of association provided that they are entitled to establish their own organizations for the defence of their interests and that the legislation limits these restrictions or prohibitions to public servants exercising senior managerial or policy-making responsibilities (see 1994 General Survey on freedom of association and collective bargaining, paragraph 57).

The Committee requests the Government to indicate whether the senior public servants classified in category A have the right to establish associations for the defence of their interests.

Articles 3, 5 and 6 of the Convention. The Committee also noted that further to the amendment of the Trade Union Act, provisions on the representative nature of trade union organizations would be adopted which would enable the Government to provide further information on the structure and functioning in practice of inter-union national organizations and their relationship with first-level unions.

The Committee had expressed the hope that the provisions that were being drafted would be consistent with the principles of freedom of association and that they would contain objective, precise and predetermined criteria for determining the most representative organizations to which facilities would be granted, so as to preclude any possibility of partiality or abuse.

The Committee asks the Government to provide information in its next report on any developments in these matters and to send it the text of the amendments once they are adopted.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the Government's report and the follow-up given to the recommendations of the Committee on Freedom of Association in Case No. 1785 (see 305th Report of the Committee on Freedom of Association, paragraphs 57 to 59), approved by the Governing Body in November 1996.

The Committee notes that the Committee on Freedom of Association refers to the amendments which entered into force on 4 August 1996, to the Act of 25 October 1990 concerning restitution of trade union assets. The Act will allow the Government to institute a procedure for transfer of assets under which the assets of the former Central Council of Trade Unions will be shared equally between NSZZ Solidarnosc and the All-Poland Trade Union Alliance (OPZZ). The draft agreement for distribution of assets between the two bodies has not been concluded and the Minister of Labour must, under the new law, draw up a list of assets and determine by Order, in consultation with the two unions, which shall be the exclusive property of each. The Order should be issued before 30 June 1997.

The Committee notes this information and expresses once again the hope that the Government and the trade unions concerned will continue to seek an equitable solution through negotiation and consultation, so that the trade unions may exercise their activities effectively, in full independence and on an equal footing.

The Committee requests the Government to send it a copy of the text of the Order as soon as it is issued.

The Committee is addressing a direct request to the Government on certain other points.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information contained in the Government's report and the comments of the independent self-governing trade union "Solidarnosc".

Articles 2 and 3 of the Convention. With reference to its previous comments and the comments of "Solidarnosc", the Committee notes with interest the Government's assurance in its report that a Bill is being examined to amend the Trade Union Act of 23 May 1991 which imposes restrictions on the right to organize of officials holding senior posts (sections 40 and 42), so as to ensure that this category of public servants has the right to form and join organizations for the defense of their interests. The Committee also notes from the Government's report that the amendment of the Trade Union Act contains provisions on the representative nature of trade union organizations and that once it has been adopted, the Government will be able to provide further information on the structure and practical functioning of inter-union national organizations and their relationship with first-level unions.

The Committee hopes that the provisions that are being drafted will be consistent with the principles of freedom of association and, in particular, that they will ensure that all workers, without distinction whatsoever, including officials holding high-level posts, have the right to form organizations for the defense of their interests, and that they will contain objective, precise and predetermined criteria concerning the facilities granted to the most representative organizations, so as to preclude any possibility of partiality or abuse.

The Committee asks the Government to provide information in its next report on any developments in these matters.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the Government's report, the comments of the independent self-governing trade union "Solidarnosc" and the latter's representation submitted under article 24 of the ILO Constitution (Case No. 1785) (see 295th Report of the Committee on Freedom of Association, November 1994, paragraph 11).

The Committee notes that the Committee on Freedom of Association has decided to adjourn its examination of Case No. 1785 and has asked the Government to keep it informed of the results of the round table to be held shortly with representatives of the complainant organization and of the All-Poland Trade Union Alliance (OPZZ) concerning the distribution of the assets of the Central Council of Trade Unions, on which, according to the Government, it should be possible to reach a common agreement.

The Committee again expresses the hope that the Government and all the trade union organizations concerned will continue to seek, by negotiating in good faith, an equitable solution so as to ensure that all the trade unions, on an equal footing, are able effectively to exercise their activities in full freedom.

The Committee is also addressing a direct request to the Government concerning some other points.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes that the Government's report contains no reply to its previous direct request. It hopes that the next report will provide full information on the following two points:

1. Article 2: Right of workers and employers, without distinction whatsoever, to establish organizations. The Committee notes that, under the new Trade Union Act, officials holding senior posts which involve initiation or management functions and workers whose tasks are largely confidential (section 42 of the new Act of 1991) are still excluded from the right to form or join trade unions.

The Committee recalls that agents of the public authority who hold managerial or supervisory posts or perform tasks of a confidential nature should have the right to organize. It therefore asks the Government to supply information on the manner in which the officials referred to in section 40 of the Act of 1982 defend their professional interests in practice, in view of the fact that former section 41 of the Act, which provided for the possibility for such officials to establish workers' councils, has been repealed by the new Trade Union Act.

It also asks the Government to indicate in its next report the reasons why members of youth brigades serving in the civil defence service are prohibited from forming unions (section 40 of the Trade Union Act). It recalls that under Article 9 of the Convention, only the armed forces and the police may be excluded from the right to organize.

2. Article 3: Right of trade unions to organize their administration and activities and to formulate their programmes. In accordance with the Trade Union Act of 23 May 1991, the national inter-trade union organization and the national union that is representative of workers in the majority of establishments enjoy more rights to defend the interests of their members than base-level unions.

The Committee requests the Government to indicate how the national inter-trade union organization and the national union that is representative of workers in the majority of establishments are defined and composed and how they function in practice. It also requests the Government to provide information on the relations between the above unions and the base-level trade unions.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes the Government's report and its reply to the comments of the NSZZ "Solidarnosc" on the application of the Convention, which referred in particular to the restitution of the assets of the former Central Council of Trade Unions (CRZZ).

The Committee notes that the NSZZ "Solidarnosc" referred to the inadequacy of the provisions of the Act of 25 October 1990 on the restitution of property and assets expropriated from trade unions and social organizations as a result of the introduction of martial law on 13 December 1981, and of section 45 of the Trade Union Act of 23 May 1991 which provides that the inter-union organization and the national trade union representative for workers of the majority of enterprises shall determine before 30 September 1991, by agreement, the principles of utilization and distribution of the assets of the Central Council of Trade Unions and that, in the absence of an inter-union agreement, these principles are to be established by Order of the Council of Ministers. The NSZZ "Solidarnosc" considered that the implementation of these provisions was ineffective and that the All-Poland Trade Union Alliance (OPZZ) had engaged in obstructive conduct to prevent the return of the assets it had acquired following the re-establishment of trade union monopoly in 1982 and which belonged to the NSZZ "Solidarnosc", constituted in 1980, and to the CRZZ.

With regard to the implementation of the Act of 25 October 1990, the Government explains that, under this Act, a Social Revindication Committee supervised by the Administrative High Court was set up to institute legal proceedings concerning the restitution of the trade union assets. It adds that, owing to material difficulties (a lack of documentation and information, the number of applications for restitution) and legal difficulties (the Constitutional Tribunal found that certain provisions of the Act of 25 October 1990 were incompatible with the Constitution) the aforementioned Committee has fallen behind with its work.

With regard to the redistribution of the assets of the former Central Council of Trade Unions, which were transferred to the OPZZ in 1982, the Government indicates that the national inter-union organization and the national trade union representative for workers of the majority of enterprises did not reach an agreement as to the principles of utilization and distribution of the assets of the CRZZ in accordance with section 45 of the Trade Union Act of 23 May 1991. Although, as a result, the Council of Ministers became authorized under section 45 to issue an Order establishing such principles, the Government preferred such decisions to be based on an agreement between the unions concerned. Accordingly, since February 1992 meetings of representatives of national trade unions have taken place at the Ministry of Labour. However, joint activities have been interrupted due to difficulties in determining membership of various trade unions, which is necessary for deciding on the proportions of the assets to be distributed. The Government adds that, in any event, the Ministry will endeavour to ensure that a draft of the Order provided for in section 45 of the Trade Union Act of 23 May 1991 is prepared within a reasonable period. The Government indicates in conclusion that the legal regulations were prepared with the participation of the NSZZ "Solidarnosc" and that excessive demands by one organization could lead to justified criticism on the part of the other trade unions concerned.

The Committee takes note of this information. It considers that it would be desirable for the Government and all the trade union organizations concerned to pursue efforts to find a solution, at the earliest possible date, to settle the distribution of the assets referred to in the Act of 25 October 1990 and section 45 of the Trade Union Act of 23 May 1990 in such a way as to ensure that all the trade unions, on an equal footing, are able effectively to exercise their activities in full freedom. It therefore asks the Government to provide information on any progress made in this respect in its future reports.

The question of sanctions against violations of trade union rights will be dealt with in the context of the application of Convention No. 98.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the Government's report and the new Acts of 23 May 1991 concerning trade unions, employers' organisations and the settlement of collective labour disputes.

It nevertheless requests the Government to supply information in its next report on the application of the following Articles of the Convention.

1. Article 2. Right of workers and employers, without distinction whatsoever, to establish organisations. The Committee notes that, in accordance with the new Act concerning trade unions, officials in highly responsible positions, whose activities are considered to be related to the formulation of policy or who exercise functions of direction, and workers whose tasks are largely confidential (section 42 of the new Act of 1991) still do not have the right to establish or join trade unions.

The Committee recalls that agents of the public authority who are in responsible positions, who exercise functions of direction or whose tasks are confidential, should have the right to organise. It thus requests the Government to supply information on the manner in which the officials referred to in section 40 of the Act of 1982 defend their professional interests in practice, in view of the fact that former section 41 of that Act, which provided for the possibility for such officials to establish works councils, has been repealed by the new Act concerning trade unions.

It also requests the Government to indicate in its next report the reasons for which members of youth brigades serving in the Civil Protection Service are prohibited from establishing trade unions (section 40 of the Act concerning trade unions). It points out that under the terms of Article 9 of the Convention, only the armed forces and the police may be excluded from the right to organise.

2. Article 3. Right of trade unions to organise their administration and activities and to formulate their programmes. In accordance with the Act of 23 May 1991 concerning trade unions, the national inter-trade union organisation and the national union that is representative of workers in the majority of establishments enjoy more rights to defend the interests of their members than base-level trade unions.

The Committee requests the Government to indicate how the national inter-trade union organisation and the national union that is representative of workers in the majority of establishments are defined and composed and how they function in practice. It also requests the Government to provide information on the relations between the above unions and the base-level trade unions.

3. Noting that the new Act concerning trade unions provides, in section 45, that the national inter-trade union organisation and the national union that is representative of workers in the majority of establishments shall determine by agreement, until 30 September 1991, the principles governing the use and division of transferred property of the association of trade unions and that, in the absence of an agreement within the specified period, the principles in question shall be determined by order of the Council of Ministers, the Committee requests the Government to indicate whether such an agreement was concluded or whether the Council of Ministers determined the question by order, and to supply any relevant text.

Observation (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the Government's report and the new Acts of 23 May 1991 concerning trade unions, employers' organisations and the settlement of collective labour disputes.

The Committee notes that the new legislation applies the Convention to a large extent. In particular, it notes with satisfaction that: (1) the possibility of trade union pluralism is set out in the law (the Labour Code, as amended, and the Act of 23 May 1991 concerning trade unions); (2) workers have the right to strike (Act of 1991 concerning the settlement of collective labour disputes); and (3) trade unions no longer exercise functions related to labour discipline (Act of 7 April 1989 to amend the Labour Code, which provided in section 19 that "trade unions shall take part in formulating and carrying out the tasks connected with (...) the exertion of influence on the standards of social awareness and socialist human relationships"). In particular, it notes with interest that the number of persons excluded from the right to establish trade unions has been reduced in comparison with the previous situation.

The Committee also notes the comments of NSZZ "Solidarity" on the application of the Convention and requests the Government to reply to them.

In view of the fact that the Government has not yet had the time to reply to the comments of NSZZ "Solidarity", the Committee will deal with these specific questions at its next meeting once it has examined the Government's observations.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

With reference to its previous comments, the Committee notes from the Government's report that draft legislation on trade unions and employers' organisations is currently being examined by the Seym and that this draft legislation takes account of the comments of the Committee of Experts as regards the necessity of fully recognising the right to organise of prison officers and restricting the scope of restrictions on the right to strike.

The Committee requests the Government to keep it informed of any progress made in these fields.

Observation (CEACR) - adopted 1990, published 77th ILC session (1990)

The Committee notes the information supplied by the Government to the Conference Committee on the Application of Standards in June 1989 and the discussion which followed, as well as the Government's reports.

In its previous observation, the Committee noted that the Round Table committee responsible for dealing with questions related to trade union pluralism recognised the need to amend the legislation on trade unions as regards the establishment of unions, the choice of trade union structures, trade union rights in the agricultural sector, the scope of trade union legislation and the settlement of disputes, including the right to strike.

The Committee notes with satisfaction that Act No. 105 of 7 April 1989, amending the Trade Union Act, 1982, introduces the possibility of trade union pluralism by repealing section 60 which imposed the existence of a single trade union for each enterprise, by recognising the right of workers to establish trade unions with structures of their own choosing (enterprise, branch, occupational or national unions) and to join them (sections 1 and 2 of Act No. 105). It also notes that the Act guarantees the equality of all trade unions (sections 6, 8, 10 and 11 of Act No. 105).

In the area of agriculture, the Committee notes with satisfaction that the new Act No. 106 of 7 April 1989 on trade unions of individual farmers also introduces the possibility of trade union pluralism, gives individual farmers and the active members of their families the right to establish organisations of their own choosing, the right to draw up their constitutions and rules and to formulate their programmes without supervision by the State, which must refrain from any interference which would restrict their independence, and guarantees equality of rights of the new trade unions with the socio-occupational organisations of farmers.

In this new context, the Committee notes the registration on 17 and 20 April 1989 of the Independent Self-Governing Trade Union "Solidarity" and the organisation in the agricultural sector, "Rural Solidarity".

The Committee also notes the creation in January 1989 of the Association of Employers of Poland, which covers employers from the state, co-operative and private sectors.

Finally, the Committee notes with satisfaction the adoption of Act No. 104 of 7 April 1989 which grants all citizens, whatever their religion or opinion, the right to establish associations of their own choosing.

With regard to the other matters on which the Round Table committee voiced the need for change and which have been the subject of the comments of the Committee of Experts for several years, namely the denial of trade union rights to officials in prison establishments and restrictions on the right to strike, the Government indicates that amendments to the relevant provisions of the Trade Union Act of 1982 will be introduced, since the principle was recognised during the Round Table. The Government indicates that work has started on bringing the legislation into conformity with the provisions of Convention No. 87 and that the ILO will be kept informed of the outcome.

In this respect, the Committee notes that, according to the Government's most recent report, provisional occupational organisations for prison staff and members of the militia have been created, namely the Initiative Group of the Independent Self-Governing Trade Union of Officials in prison establishments and the Independent Self-Governing Trade Union of Militia Personnel. It adds that steps aimed at the amendment of their legal status will enable these officials to organise in trade unions.

The Committee takes due note of this information and in particular notes with satisfaction that Act No. 179 of 29 May 1989 annuls all convictions imposed in respect of strikes or other protest actions committed after 31 August 1980. It hopes that in the near future it will be possible to amend the legislation along the lines of the recommendations of the Round Table committee and the comments of the Committee of Experts in order to recognise the trade union rights of officials in prison establishments and to make the provisions concerning strikes more flexible. It requests the Government to supply detailed information in this connection.