Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 316, Junio 1999

Caso núm. 1972 (Polonia) - Fecha de presentación de la queja:: 19-MAY-98 - Cerrado

Allegations: Refusal to consult with workers' organizations before the adoption of legislation; anti-union discrimination and dismissals of trade union leaders

1. 681. In communications dated 19 May and 16 September 1998 by the OPZZ, in communications dated 6 June, 27 and 29 July and 10 September 1998 by the trade union "Sprawiedliwosc" and in communications dated 3 August, 4 September and 1 October 1998 by the WZZPS, these unions presented complaints of infringements of trade union rights against the Government of Poland.
2. 682. In communications dated 5 and 16 November, 14 December 1998 and 27 January 1999, the Government provided its observations on the complaints.
3. 683. Poland has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) as well as the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

• Complaint of the OPZZ
  684. 684 In its communications dated 19 May and 16 September 1998, the All Poland Trade Union Alliance (OPZZ) alleges that the Polish Government is continuously violating trade union laws, in particular, by: (1) not consulting with the OPZZ concerning pieces of draft legislation, as required by article 19 of the Polish Trade Union Act; and (2) treating unequally all trade unions in violation of article 1(3) of the Polish Trade Union Act.
  685. 685 Concerning the first point, the OPZZ explains that in spite of the provision of article 19(2) of the Trade Union Act of 23 May 1991, the Government has not submitted to the OPZZ for consultation a draft regulation of the Minister of Finance on the setting of prices for heating which came into force in December 1997 and resulted in a radical increase in the price of heating as well as it did not consult the OPZZ on a draft amendment to the aforementioned regulation. Furthermore, the OPZZ complains about the shortening of the 30-day period of consultation provided for in article 19 of the Trade Union Act with regard to: a draft regulation by the Minister of Finance amending the regulation on specific rules and procedure of granting loans from the National Housing Fund; a draft Bill on thermal isolation projects; and a draft regulation of the Minister of Home Affairs and Administration on the specific scope of energy audit.
  686. 686 In addition, the OPZZ mentions another violation by the Government of the duty to consult with trade unions on draft legislation. The OPZZ cites the case of a shortened period of consultations with regard to a draft Bill on reforming the public administration. According to the OPZZ, the adoption of such pieces of legislation without consultation and economic analysis can result in economic and social threats.
  687. 687 Concerning the second point of the complaint, the OPZZ indicates that the Government has refused to subject itself to a dispute settlement procedure provided for in the Act of 23 May 1991 on collective dispute settlement with regard to disputes initiated by the OPZZ. The OPZZ alleges that the Government does follow this procedure of collective dispute settlement, but only with other trade unions, thus creating a discrimination between trade unions.
• Complaint of the WZZPS
  688. 688 In its communications dated 3 August, 4 September and 1 October 1998, the Warsaw Trade Union of Self-Government Employees (WZZPS) states firstly that the President of the capital city Warsaw, in connection with a collective dispute with the WZZPS, has not started negotiations in the period provided for by the Act of 23 May 1991 on the settlement of collective disputes. The WZZPS explains that it started a collective dispute with its employer, namely the President of the capital city Warsaw, on 25 August 1997. Once the deadline for settling the dispute expired, the WZZPS notified the District Public Prosecutor's Office, in accordance with the provisions of the Act of 23 May 1991. In response to this notification, the WZZPS states that the employer agreed to a request from a superior of the Chairperson of the Board of the WZZPS concerning the termination of her employment contract without notice in disciplinary proceedings. The Chairperson of the Board of the WZZPS, Ms. Sikorka-Mrozek, has since lodged a complaint before the Labour Court.
  689. 689 The WZZPS states further that the office of Ms. Sikorka-Mrozek was also used as an official head office for the trade union. The WZZPS claims that bookcases from that office were opened without its consent and that documents were looked through, then packed into carton boxes and put in a closet. The WZZPS goes on to explain that many objects were lost, including all trade union seals and that it had to request the police to safeguard certain documents. Furthermore, according to the complainant, after the Register Court was wrongfully notified in January 1998 of the WZZPS's non-existence, the Voivodship Court, in its decision of 29 June 1998, refused the deletion of the WZZPS from the trade union register. Finally the WZZPS states that for several months, it could not perform its statutory tasks, and until today is unable to function under its statutory address.
• Complaint of the trade union "Sprawiedliwosc"
  690. 690 In its communications of 6 June and 27 July 1998, the complainant explains that the trade union "Sprawiedliwosc" was created on 15 March 1998. On 25 March 1998, appropriate documents were submitted to the Voivodship Court for the registration of the union. Although article 32(1) of the Trade Union Act of 1991 provides for a six-month protective period for the founding committee of the union, on 30 March 1998, Mr. Marek Grabowski, chairman of the founding committee, received notice of termination of his employment contract on the same day that he informed the head of personnel of the creation of the trade union. The complainant also mentions that following a request from the trade union OPZZ to the State Labour Inspection concerning this matter, an investigation was carried out and the senior labour inspector confirmed on 22 April 1998 an infringement of the Trade Union Act by the employer, namely the Auxiliary Establishment of the Prime Minister's Chancellery.
  691. 691 In its communication of 29 July 1998, the complainant states that Mr. Grabowski is still without a job and has been deprived of the possibility of telephone communication with the other trade union members and has been prohibited from entering the trade union premises.
  692. 692 In its communication of 10 September 1998, the complainant provided a copy of the decision of 2 September 1998 by the District Labour Court in Warsaw, reinstating Mr. Marek Grabowski in the Auxiliary Establishment of the Prime Minister's Chancellery under previous conditions of work and pay.

B. The Government's reply

• Complaint of the OPZZ
  693. 693 In a communication dated 14 December 1998, the Government, with regard to the complaint presented by the "All Poland Trade Union Alliance" (OPZZ), acknowledges that under article 19 of the Trade Union Act and with regard to guidelines or draft legislation or regulations, it must consult with nationwide trade union organizations on matters of trade union concern. However, the Government points out that due to the enormous amount of reforms carried out as well as the magnitude of legislative work initiated by the Government, it happens occasionally that the Government must ask the social partners to shorten the period of consultations, but in the vast majority of cases legislation is adopted after regular and unshortened consultation with social partners.
  694. 694 Concerning the specific pieces of legislation referred to in the complaint, the Government admits that the draft regulation of the Minister of Finance on the setting of prices for heating had not been subjected for consultation with trade unions. The Government explains that it had a duty to limit the extent of the expected increase in heating prices since an uncontrolled liberalization of prices could have had a negative social impact. Since the Government had to free up heating prices as provided for in the Energy Act of April 1997, the aforementioned regulation limiting the scope of price increases had to be introduced without delay because of the forthcoming winter.
  695. 695 In the case of the draft regulation amending the procedures of granting loans from the National Housing Fund, the Government admits once again that the draft was submitted to trade union organizations for consultation on 19 January 1998, with a request for opinions by 22 January 1998. The Government indicates that the shortening of the consultation period was justified since it sought for the regulation to become law as early as March (before the end of winter), so that projects directed at more efficient production of heating energy sources could be financed and carried out over spring and summer. The Government also points out that the OPZZ never questioned the urgency of such a regulation since it submitted its comments on 20 January 1998.
  696. 696 In the case of the draft Bill introducing acts reforming public administration, the Government explains that the need to shorten consultations resulted, on the one hand, from the tight legislative calendar of the Parliament and, on the other hand, from the fact that the Bill could not be finalized before the adoption of other Bills determining spheres of competence of new organs to be created in relation with the reform of public administration.
  697. 697 Finally, concerning the issue that the Government treats unions unequally, it explains that the 1991 Act on the settlement of collective disputes does not allow for the Government to be a party to a collective dispute. However, the Government explains that it has reached agreements with several trade union organizations concerning settlement procedures in cases of conflict. In fact, on 29 May 1992, the Government signed an agreement of this type with the "Solidarnosc" trade union. However, the Government indicates that the OPZZ did not take up the offer and therefore does not have a similar agreement with the Government which entails that there are no legal nor contractual grounds for the OPZZ to enter into collective disputes with the Government.
• Complaint of the WZZPS
  698. 698 In a communication dated 5 November 1998, the Government, with regard to the complaint presented by the Warsaw Trade Union of Self-Government Employees (WZZPS), explains that the first matter concerning the collective dispute with the President of the capital city Warsaw, was resolved on 2 October 1998. In this regard, the Government states that an agreement with the plaintiff was concluded before the district court of Warsaw Labour Division by which the parties agreed to the termination of the employment contract on 31 December 1998 due to the liquidation of the work post of the plaintiff, with full payment of redundancy pay.
  699. 699 Concerning the termination of the employment contract of the Chairperson of the Board of the WZZPS, the Government explains that this termination was done in conformity with article 52, paragraph 1, of the Labour Code and that this decision was taken by the employer of Ms. Sikorka-Mrozek following her unacceptable conduct, consisting in using sick leave contrary to their designation. While using her sick leave, Ms. Sikorka-Mrozek was carrying out trade union activities on the work premises. According to the Government, Ms. Sikorka-Mrozek, as Chairperson of the Board of the WZZPS, decided unilaterally to use her work post in the Education Section of the Board of Zolibory District in room 315 as the head office of the trade union. Her employer acknowledged this fact and accepted it in order to ensure appropriate cooperation with the union. However, since the uncooperative conduct of the Chairperson and her trade union activity made difficult the work of the Education Section, her employer proposed the use of another room exclusively for trade union purposes. This was refused by the Chairperson who then took several months of sick leave taking with her the key to room 315. Since official documents were in that room and the lack of access paralysed the work of the Education Section, on 6 October 1997 room 315 was opened by a commission and the trade union documentation which was there was secured. Ms. Sikorka-Mrozek lodged a complaint against this action, which was rejected by the district prosecutor and by the Voivodship prosecutor in appeal. The Government also mentions that Ms. Sikorka-Mrozek has since lodged a complaint to the Labour Court concerning the termination of her employment contract and that the decision on that case is still pending.
• Complaint of the trade union "Sprawiedliwosc"
  700. 700 In a communication dated 6 November 1998, the Government, with regard to the complaint presented by the trade union "Sprawiedliwosc", explains that according to the Auxiliary Section of the Prime Minister's Chancellery, Mr. Marek Grabowski, chairman of the trade union "Sprawiedliwosc", created this trade union and took the function of chairman as a way to gain special protection against the receipt of the notice of termination of his employment contract. The Auxiliary Section of the Prime Minister's Chancellery states that from 9 January 1995 to 30 June 1998, Mr. Grabowski was the head of a publishing and editorial section. After an internal inquiry on 13 March 1998, Mr. Grabowski was informed of the negative appraisal of the work of his section and of the intention of his employer to terminate his employment contract. Since Mr. Grabowski was on sick leave from 17 March to 28 March 1998, the notice of termination was only submitted to him on 30 march 1998 (a Monday). On the same day, his employer received the information concerning the creation of the founding committee of the trade union "Sprawiedliwosc". In this context, the Government explains that Mr. Grabowski lodged a complaint to the Labour Court demanding that the notice of termination be annulled in view of the protection he was entitled to according to the Trade Union Act.
  701. 701 In a communication dated 27 January 1999, the Government indicates that an appeal was lodged by the Auxiliary Section of the Prime Minister's Chancellery against the decision of the Labour Court of 2 September 1998 which requested the reinstatement of Mr. Grabowski.

C. The Committee's conclusions

1. 702. The Committee notes that this case relates to three different sets of allegations by three different plaintiffs, concerning namely, the refusal to consult with workers' organizations before the adoption of legislation, anti-union discrimination and dismissals of trade union leaders.
   • Complaint of the OPZZ
2. 703. Concerning the first complaint, the Committee notes that the Government acknowledges in all cases cited by the complainant that it did not consult or had to shorten the consultation periods relating to various pieces of draft legislation. In each case, the Government invokes compelling reasons on his side for not fully respecting its obligations of consultation with the social partners. On this aspect of the case, the Committee recalls the importance of consulting organizations of employers and workers during the application of legislation which affects their interest. While taking due note of the Government's explanations and the fact that in the vast majority of cases, the principle of consultation seems to be respected, the Committee draws nevertheless the attention of the Government to the provisions of the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113), which provides that measures should be taken to promote effective consultation and cooperation between public authorities and employers' and workers' organizations without discrimination of any kind against these organizations (see Digest of decisions and principles of the Freedom of Association Committee, 4th ed., paras. 928 and 929). The Committee expresses the hope that the Government will do its utmost to respect these principles in the future.
3. 704. Concerning the second aspect of the complaint by the OPZZ, the Committee notes that according to the Government, no agreement exists between the OPZZ and itself regarding procedures for the settlement of collective disputes while such agreements do exist with other unions. In these circumstances, the Committee can only encourage the parties to start negotiations with a view of concluding such an agreement. The Committee requests the Government to keep it informed of any developments concerning this aspect of the case.
   • Complaint of the WZZPS
4. 705. With regard to the complaint formulated by the WZZPS, from the information contained in the file, the Committee understands that the first aspect of the complaint, which concerned the lack of negotiations with regard to a collective labour dispute, was solved when an agreement with the plaintiff was concluded before the District Court of Warsaw/Labour Division.
5. 706. Concerning the second aspect of the complaint, namely the termination of the employment contract of Ms. Sikorka-Mrozek and the violation of trade union premises by the employer, the Committee notes the conflicting versions of the two parties. The Committee recalls firstly that one of the fundamental principles of freedom of association is that workers, as well as trade union officials, should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. But the principle that a worker or trade union official should not suffer prejudice by reason of his or her trade union activities does not necessarily imply that the fact that a person holds trade union office confers immunity against dismissal irrespective of the circumstances. The Committee has pointed out in the past that one way of ensuring protection of trade union officials is to provide that these officials may not be dismissed either during their period of office or for a certain time thereafter, except, of course, for serious misconduct (see Digest, op cit. paras. 724, 725 and 727). The Committee notes that the case of Ms. Sikorka- Mrozek is still pending in the Labour Court. In this regard, the Committee requests the Government to send it a copy of the judgement as soon as it is handed down and, if it appears from the Court decision that the dismissal is found to be related to the exercise of legitimate trade union activities, to obtain the reinstatement in her job of Ms.Sikorka-Mrozek and to keep the Committee informed of the measures taken in this respect.
6. 707. As regards the use of Ms. Sikorka-Mrozek's office in the Education Section as the trade union head office and the subsequent intrusion by her employer in that office during her absence, while the Committee takes note of the Government's explanations, it still recalls the importance it attaches to the principle that the property of trade unions should enjoy adequate protection and that the occupation or sealing of trade union premises should be subject to independent judicial review before being undertaken by the authorities in view of the significant risk that such measures may paralyse trade union activities (see Digest, op. cit. paras. 183-184). Finally, the Committee requests the Government to confirm that the trade union WZZPS can perform its legitimate trade union activities in appropriate premises and to keep it informed in this regard.
   • Complaint of the trade union "Sprawiedliwosc"
7. 708. Concerning the complaint of the trade union "Sprawiedliwosc", the Committee notes that with regard to the dismissal of Mr. Marek Grabowski, chairman of the founding committee of "Sprawiedliwosc", a decision of 2 September 1998 of the Warsaw District Labour Court requested that Mr. Grabowski be reinstated in his post under previous conditions of work and pay. The Committee also notes that Mr. Grabowski's employer, the Auxiliary Section of the Prime Minister's Chancellery, has lodged an appeal against this court decision. While the employer declares that Mr. Grabowski was dismissed solely on grounds of incompetence and that the creation of the union was merely a protection against an imminent dismissal, the complainant emphasizes the fact that he received his notice of termination of employment contract on the same day he informed his employer of the creation of the union "Sprawiedliwosc". In view of the contradictory statements as to the reasons for terminating the employment contract of Mr. Grabowski, the Committee can only recall that no person should be dismissed or prejudiced in his or her employment by reason of legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment (see Digest, op. cit., para. 696). The Committee requests the Government to keep it informed of the outcome of the appeal judgement in this case and to take measures to reinstate Mr. Grabowski if his dismissal is proven discriminatory. The Committee also requests the Government to indicate if the union "Sprawiedliwosc" is able to perform its activities normally.

The Committee's recommendations

1. 709. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) Concerning the complaint of the OPZZ, the Committee requests the Government to ensure that measures are taken in the future to promote effective consultation and cooperation between the public authorities and the social partners before adopting legislation affecting workers' or employers' interests; the Committee also encourages the Government and the OPZZ to start negotiations in view of reaching an agreement on procedures for the settlement of collective disputes and requests the Government to keep it informed in this regard.
   • (b) Concerning the complaint of the WZZPS, the Committee asks the Government to send it a copy of the judgement concerning the dismissal of Ms. Sikorka-Mrozek and, if it appears from the court decision that the dismissal is found to be related to the exercise of legitimate trade union activities, to obtain her reinstatement. The Committee requests the Government to keep it informed of the measures taken in this respect. The Committee also requests the Government to confirm that the WZZPS can perform its legitimate trade union activities in appropriate premises and to keep it informed in this regard.
   • (c) Concerning the complaint of the trade union "Sprawiedliwosc", the Committee asks the Government to keep it informed of the outcome of the appeal judgement in the case of the dismissal of Mr. Grabowski and to take the measures to reinstate him if his dismissal is proven discriminatory. The Committee also requests the Government to indicate if the trade union "Sprawiedliwosc" is able to perform its activities normally.