Effect given to the recommendations of the committee and the Governing Body - Report No 340, March 2006

Case No 2395 (Poland) - Complaint date: 09-NOV-04 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 173. The Committee examined this case, which concerns several freedom of association violations at the Hydrobudowa-6 S.A. company (decision to discontinue the deduction of trade union fees of the NSZZ “Solidarnosc” trade union in the enterprise and anti-union dismissals of the chairperson and a member of the executive committee of the abovementioned trade union in violation of the relevant legislation) as well as the indulgent attitude of the Government and the judicial authorities towards these acts of anti-union discrimination and the serious delays in the proceedings concerning the reinstatement of the abovementioned trade union officials, at its June 2005 meeting [see 337th Report, paras. 1150-1201]. The Committee made the following recommendations:
   • (a) Noting that the check-off facility in the Hydrobudowa-6 S.A. company has been allegedly unilaterally modified since January 2002, the Committee requests the Government to intercede with the parties (either in the framework of the renewal of the discontinued proceedings or otherwise) with a view to re-establishing the previously available check-off facility and to keep it informed of progress made in this respect.
   • (b) The Committee expects that the measures now taken by the Government will effectively speed up the judicial proceedings initiated for reinstatement by Sylwester Fastyn, chairperson of the NSZZ “Solidarnosc” trade union in the Hydrobudowa-6 S.A. company, and for recognition of dismissal as ineffective by Henryk Kwiatkowski, member of the executive committee of the trade union, and requests the Government to keep it informed of the progress of the proceedings as well as their final outcome.
   • (c) The Committee requests the Government to intercede with the parties with a view to enabling Sylwester Fastyn, who has kept his post as chairperson of the trade union, to exercise his trade union activities without any further interference by the employer, in particular, to be able to remain in the trade union office without having to be accompanied by an employee. The Committee requests to be kept informed in this respect.
   • (d) The Committee requests the Government to take all necessary measures as soon as possible with a view to establishing procedures which are prompt, impartial and considered as such by the parties concerned, in order to ensure that trade union officials and members have the right to an effective remedy by the competent national tribunals for acts of anti-union discrimination. The Committee requests to be kept informed of developments in this respect.
2. 174. In its communication of 21 October 2005, the Government indicates as regard the check-off facility in the Hydrobudowa-6 S.A. Company, that all the actions taken in connection with legal proceedings by the Prosecutor’s Office were in accordance with the binding law and all the possible steps related to the instance and service supervision were taken. Effectively, the District Court for Warsaw Pragapolnoc as well as the Appeals Prosecutor rejected the appeal and decided that there existed no grounds for resuming the proceedings, which had been validly discontinued.
3. 175. With regard to the progress of the cases of Henryk Kwiatkowski and Sylwester Fastyn before the competent tribunals, the Government first states that, concerning the action undertaken by Henryk Kwiatkowski, the District Court for Warsaw-Praga, on 28 July 2005, withheld the action and ordered the reinstatement of the plaintiff. However, the decision is still not enforceable, as the employer has decided to lodge an appeal against it. In respect of the case of Sylwester Fastyn, which was heard for the first time on 27 April 2005 and the second on 17 October 2005 (six months later), the hearing was finished but the Court had still not yet rendered its decision. The Government explains that the half-year’s interruption in the main proceedings was due to a special procedure instituted in connection with another motion raised by the defendant – Hydrobudowa-6 S.A. – to suspend the proceedings, but this motion was dismissed on 5 July 2005. The Government adds that, concerning these two cases, the legal proceedings are currently conducted without delay. It further states that the importance of the delay in proceedings depends on the motions and requests filed by the parties.
4. 176. With regard to the fourth recommendation of the Committee to take all necessary measures as soon as possible in order to establish procedures which are prompt, impartial and considered as such by the parties concerned, so as to ensure that trade union officials and members have the right to an effective remedy by the national tribunals for acts of anti-union discrimination, the Government affirms that under the polish law, public administration bodies are not authorized to interfere in bilateral disputes between employees and employers. According to the Government, independent courts are currently resolving those disputes. Moreover, the parties may decide, pursuant to the Act on the Settlement of Collective Disputes of 1991, to jointly appoint an external mediator who would guarantee an unbiased resolution of the dispute. The mediator may be selected from a list defined by the Minister of Labour, in cooperation with the organizations representing workers and employers, pursuant to the Act on the Tripartite Commission for Social and Economic Affairs. If the parties fail to reach a consensus within five days, further proceedings will be attended by a mediator appointed, following a request filed by any of the parties, by the Minister of Labour from the list of mediators.
5. 177. The Committee takes note of the information provided by the Government. Regarding the issue of the unilateral modification of the check-off facility, the Committee notes with regret that the Government reiterates previously provided information and does not indicate any measure taken or contemplated so as to intercede with the parties with a view to re-establishing this facility, as requested by the Committee. The Committee takes due note of the fact that the District Court for Warsaw Pragapolnoc as well as the Appeals Prosecutor rejected the complainant’s appeal and decided that there existed no grounds to resume the proceedings, but it observes once again that neither the judicial texts previously provided by the Government, nor the Government’s response contain any indication as to the grounds justifying the unilateral termination of this facility. The Committee once again recalls that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conductive to the development of harmonious industrial relations and should therefore be avoided [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 435]. It therefore once again urges the Government to intercede with the parties with a view to re-establishing the previously available check-off facility and to keep it informed of progress made in this respect.
6. 178. As regards the action filed by Henryk Kwiatkowski, the Committee notes with interest from the Government’s report that on 28 July 2005, the District Court for Warsaw-Praga upheld it and ordered the reinstatement of the plaintiff to work. However, the decision is still not enforceable, as the employer has decided to lodge an appeal against it. Furthermore, the Committee notes that, in respect of the case of Sylwester Fastyn, at the date of the last communication of the Government (21 October 2005), the hearing had ended but the Court had still not rendered its decision. The Committee regrets to observe that although the Government indicates that the proceedings initiated by Messrs. Fastyn and Kwiatkowski are currently conducted without delay, these proceedings have been pending since April and March 2002 respectively and have still not been concluded. The Committee recalls once again that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective, and that justice delayed is justice denied [see Digest, op. cit., paras. 105 and 749]. The Committee requests the Government to ensure that the proceedings initiated by the two union leaders will be concluded without further delay, and requests the Government to keep it informed of the progress of the proceedings as well as their final outcome.
7. 179. Concerning the interference in the exercise of Sylwester Fastyn’s functions as chairperson of the trade union in the enterprise and full-time union officer after his dismissal, the Committee notes with regret that the Government provides no information in this respect. The Committee once again emphasises that the dismissal of Sylwester Fastyn, for which the employer has already been sentenced and fined, as well as the long delay in the reinstatement proceedings, should not hinder the activities of the trade union by enabling the employer to prohibit the presence of the chairperson in the trade union office unless he is accompanied by an employee. Therefore, the Committee requests once again the Government to intercede rapidly with the parties with a view to enabling Sylwester Fastyn to exercise his trade union activities without any interference by the employer and to keep it informed in this respect.
8. 180. With regard to the allegation of an indulgent attitude towards anti-union discrimination on behalf of the authorities and the serious delays in proceedings concerning reinstatement in cases of unlawful dismissal, the Committee notes with regret that the Government does not indicate any measures aimed at establishing prompt and impartial procedures leading to an effective remedy. The Committee observes that the issue of a possibly indulgent attitude towards anti-union discrimination, which can be largely attributed to serious delays in the administration of justice, has also been raised in the framework of Case No. 2291 concerning Poland. The Committee had noted in its previous examination of this case, the Government’s affirmation that the problem of delay in the administration of justice is a generalized one. The Committee once again recalls that the Government is responsible for preventing all acts of anti-union discrimination and that it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned. The existence of legislative provisions prohibiting acts of anti-union discrimination is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice [see Digest, op. cit., paras. 738 and 742]. The Committee therefore once again urges the Government to take all necessary measures as soon as possible with a view to establishing procedures which are prompt, impartial and considered as such by the parties concerned, in order to ensure that trade union officials and members have the right to an effective remedy by the competent national tribunals for acts of anti-union discrimination, and to keep it informed of developments in this respect.