Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 279, Novembre 1991

Cas no 1545 (Pologne) - Date de la plainte: 12-JUIL.-90 - Clos

1. 288. In communications dated 12 June and 31 July 1990, the Federation of Mining Unions (FMU) presented a complaint of violation of freedom of association and of trade union rights against the Government of Poland. In a communication dated 22 June 1990, the Polish National Alliance of Trade Unions (OPZZ) expressed its support of this complaint. The Government sent its observations on the case in a communication dated 28 February 1991.
2. 289. Poland has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. Allegations of the complainant federation

1. 290. In its communications of 12 June and 31 July 1990, the Federation of Mining Unions alleges that the Government refused, in spite of the request that had been made of it on 24 February 1990 and in violation of section 41 of the Act of 8 October 1982 as amended in 1985 and in 1989, to participate in conciliation proceedings in order to settle the collective inter-works dispute which has arisen between it and the Federation.
2. 291. Following this refusal, the Federation continued with the proceedings and, in accordance with section 42(1) of the above-mentioned Act, submitted the inter-works dispute to the Social Arbitration Chamber of the Supreme Court; however, the Federation points out that the Government did not make a similar request although in accordance with the Act it was bound to do so, and had therefore not appointed its members of the Arbitration Chamber, thus preventing the conciliation proceedings from taking place before this Chamber.
3. 292. The Federation therefore applied to the Chamber of Labour Administration and Social Security of the Supreme Court. The Court, on the basis of the provisions of paragraph 5(3) of the decision of the Council of Ministers dated 30 December 1982 setting out the rules of procedure for the social arbitration chambers, handed down on 23 May 1990 a decision certifying that it had not been possible to examine the dispute due to the fact that the office of the Council of Ministers, party to the dispute with the Federation of Mining Unions, had not appointed its members of the Arbitration Chamber.
4. 293. According to the complainant, this type of attitude, of refusing to participate in the procedures for settling collective inter-works disputes, in accordance with the legal provisions adopted by the Diet (Parliament) and the Government itself, leads to a situation where no collective disputes can be settled in accordance with the current legislation. The complainant considers this to be a violation of Article 8 of Convention No. 87.

B. The Government's reply

1. 294. In its detailed reply supported by documents arguing its position in this matter, the Government states that in a letter dated 15 January 1990 addressed to the president of the Council of Ministers, the Federation had informed him that it wished to begin a collective inter-works dispute regarding the following claims: the need to fix remuneration levels in the mining industry in an equitable manner in order to (a) ensure appropriate remuneration for mineworkers, with respect to current wages in the processing industry as had been agreed during the "round table"; (b) recognise the true value of the allowance in kind (coal) which is an important part of remuneration in the mining industry; (c) abolish the supplementary taxation on remuneration earned for Saturday work, a public holiday in the mining industry, on the financial value of allowances in kind and on bonuses paid on Miners' Day. The Federation also asked the Government to fulfil its obligations regarding the mining industry as included in the state budget for 1989 and to include in the budget for 1990 financial measures to ensure a suitable reform of the mining industry. This letter also specified that if there was no reply by 20 January 1990 at the latest, the Federation would institute conciliation proceedings in accordance with the provisions of the Act respecting trade unions.
2. 295. On 20 January 1990, the Minister of Labour and Social Policy addressed to the president of the complainant Federation a letter in which he informed it that these claims did not lend themselves to a solution in accordance with the procedure established for inter-works disputes, because he believed these requests concerned changes in wages and other benefits for mineworkers and that in accordance with the current legislation, these claims should be settled by way of collective wage agreements between the union representatives and the relevant bodies in the enterprises. As for the second aspect of the claims concerning obligations with regard to the mining industry, as outlined in the 1989 state budget, the Minister of Labour stated that the competent department of the Ministry of Industry had been instructed to obtain detailed information in this respect as soon as possible from the Ministry of Finance and to communicate it to the Federation.
3. 296. The Government states that it had agreed to go ahead with negotiations with the Federation. The outcome was recorded in a document provided by the Government, dated 23 January 1990 and entitled "Decisions taken during negotiations on the subject of problems put forward by the Federation of Mining Unions in its letter dated 15 January 1990 addressed to the president of the Council of Ministers and proposals for solutions to the collective dispute".
   • It appears from this text that:
     • - the Government repeats its position whereby from the point of view of current legislation problems concerning wages cannot constitute a collective inter-works dispute;
     • - measures would be taken to improve, from 1990 onwards, the financial situation of mining enterprises so that the drop in wages recorded in 1989 would have no repercussions on the level of wage funds of the mining enterprises;
     • - proposals aiming to change allowances in kind will from now on be the subject of consultations with the trade union organisations concerned;
     • - the Minister of Industry will ask the Minister of Finance to amend the legislation in order to exempt from supplementary taxation for 1990 remuneration paid in accordance with decision No. 199/81 handed down by the Council of Ministers for work done on a public holiday;
     • - regarding the implementation of the 1989 budget, the parties note that the subsidies due in 1989 have been paid and that for 1990 the January instalments will be paid before the end of the month and the February ones at the beginning of the month;
     • - the Federation declares that it will suspend its action until it receives the decision of its statutory bodies.
   • 297. Following these negotiations, the Government confirms that the Presidium of the Federation of Mining Unions did in fact decide to suspend the collective dispute until 22 February 1990. However, adds the Government, after having noted that wages had not reached the level forecast, that the withdrawal of supplementary taxation had not been accepted by the Minister of Finance and that the subsidies corresponding to the real needs of the mining industry had not been paid in full, the Federation had decided, by a letter of 24 February 1990, to institute the conciliation proceedings in accordance with section 41 of the Act respecting trade unions.
4. 298. The Government indicates with regard to the question of supplementary taxation, that on 14 February 1990 it contacted the Ministry of Finance which, in a letter dated 6 March 1990, refused to give a favourable response to this request on the grounds that in the framework of the current taxation reform it was not appropriate to grant this exemption to one particular socio-professional group.
5. 299. Furthermore, the Government states that on 5 and 6 March 1990 the Minister of Industry held discussions with the coalminers' trade unions concerning changes in the components of remuneration, during which it was agreed that the changes would be the subject of consultation with all the trade union organisations concerned. This resulted in the signature on 6 March 1990 of an additional clause to the draft agreement concerning the system of remuneration in the coalmining industries, concluded on 26 March 1985 between the Ministry of Mining and Energy and the Federation of Mining Unions. This additional clause provides for the possibility of increasing the basic wage rates by 30 per cent for surface workers and 40 per cent for underground workers, and provides that remuneration for public holidays should be determined in accordance with the general principles in force regarding supplementary wages in the enterprises, which according to the Government would mean an improvement in the system of wages and wage ratios in the coalmining industry as compared to the processing industry.
6. 300. This being the case, in reply to the letter from the Federation dated 24 February 1990 requesting the opening of conciliation proceedings, the Government addressed to the Federation on 12 March 1990 a letter in which it reaffirmed that the wage negotiations requested by the Federation could not be the subject of an inter-works settlement. Furthermore, in this communication the Government emphasised that the question concerning remuneration for public holidays was no longer topical following the adoption of the additional clause dated 6 March 1990. It invited the Federation to discuss the new legal situation in the mining industry with the representatives of the ministries concerned once the level of wages in the industry becomes known after the changes have been introduced.
7. 301. The Government also states that on 21 March 1990 the Federation had sent it a letter informing it of the dispatch of the motion requesting the case to be brought before the Social Arbitration Chamber of the Supreme Court in order to institute conciliation proceedings and to resolve all the claims outstanding since 15 January 1990. This letter also mentions the acceptance by the Federation of the government proposal for a meeting to examine the problems concerning wages and collective agreements in the following branches: coal, lignite, ores, chemical and mineral substances, geology and boring.
8. 302. After the decision dated 23 May 1990 handed down by the presiding judge of the Supreme Court recording that it was impossible to examine the dispute due to the Government not having appointed its members of the Arbitration Chamber, the Government states that the negotiations did however take place. In fact, on 27 June 1990 a meeting took place in which the representatives of the Ministry of Industry, the Ministry of Finance and the Federation of Mining Unions participated. The discussions concerned the freeing of the price of coal, the export quotas for coal, the budgetary endowment for the mining industry, the allocation of the fees paid for the exploitation of mining deposits, the structure of wages in the mining industry, the financing of safety measures in the mines and the drawing up of a draft of a new collective agreement in the mining industry.
9. 303. The Government stresses that another meeting between the Minister of Industry and the representatives of the Federation took place on 12 September 1990 during which the parties studied and discussed certain points concerning the coal industry, such as the question of taxation on wage increases and the draft collective agreement for the mining industry. Furthermore they decided that changes in the system of remuneration in the enterprises should take the form of a supplementary clause, in accordance with the provisions of the Act respecting the creation of systems of remuneration in enterprises. The question of the relationship between wages in the mining industry and those in the processing industry was also studied as well as the matter of bonuses on Miners' Day and of the application of the Miners' Charter. Lastly, it was decided that the measures considered during the meeting with the Federation would be the subject of discussions with the other trade union organisations of the mining industry.
10. 304. With regard to the question of the adjustment of allowances in kind, the Government states that there is no legal obstacle to stop part of the wages being paid in the form of remuneration in kind. It is for each enterprise (that is, the trade union organisation and the management) in accordance with Act No. 69 of 1990 amending the Act of 1984 respecting the creation of systems of remuneration in enterprises, to decide upon the levels of the various components of remuneration, including the part to be paid in kind.
11. 305. Lastly, the Government considers that it demonstrated its willingness throughout the discussions held in 1990 to find solutions to the problems caused by the introduction of economic and social reforms. It regrets that with the difficult changes that are taking place whose inevitable and negative consequences must be borne by all sectors of industry, the Federation of Mining Unions did not think it opportune to withdraw its complaint. It declares that it is however prepared to make every possible effort to reach a solution to the dispute.

C. The Committee's conclusions

1. 306. This complaint concerns the alleged refusal of the Government of Poland to take part in proceedings to settle collective inter-works disputes as provided in sections 40, 41 and 42 of the 1982 Act respecting trade unions, as amended in 1985 and 1989.
2. 307. It is acknowledged by the parties that, on 15 January 1990, the Federation addressed to the Government a letter in which it declared the existence of a collective inter-works dispute and requested the Government to give its reply by 20 January at the latest to the list of claims set out in paragraph 7 of this document; that, on 20 January, the Minister of Labour communicated the Government's refusal to consider this dispute as an inter-works dispute and therefore to take action concerning the Federation's request because, according to the Government, the claims concerned changes in the wages and other benefits of mineworkers, matters which could be settled by way of collective agreements at the enterprise level in accordance with the legislation in force.
3. 308. The Government maintained its point of view and the Federation continued with the procedure in conformity with the legislation: it requested the opening of conciliation proceedings, then requested the Supreme Court to pronounce its decision in the Court of Labour Administration and Social Security, which recorded that it was impossible to examine the dispute due to the fact that the office of the Council of Ministers, a party to the dispute with the Federation of Mining Unions, had not appointed its members of the Social Arbitration Chamber.
4. 309. In view of the above and of the information available, the Committee is not in a position to reach a decision on the soundness of the reason that led the Government to refuse to participate in the procedures to settle disputes, established by the decision of the Council of Ministers dated 30 December 1982 setting out the rules of procedure of the social arbitration chambers. Besides, the Supreme Court, in its decision dated 23 May 1990, did not come to a decision on the substance of the dispute concerning the plea of inadmissibility put forward by the Government, but instead handed down a decision "by default" recording the Government's non-respect of the rules of procedure which had made it impossible to examine the dispute.
5. 310. However, in view of sections 40, 41 and 42 of the Act respecting trade unions and the documents provided, the Committee observes that it appears prima facie that the claims presented by the complainant Federation seem to concern more than one establishment, that these claims do not seem to have produced the outcome the Federation had wished, because of the Government's refusal to negotiate the question of altering the wages of mineworkers within the framework of the procedure to settle inter-works disputes.
6. 311. The Committee notes however that, even though the Government has not designated the members of the Social Arbitration Chamber having jurisdiction over inter-works disputes, discussions always continued between the Federation and the Government through the intermediary of the Minister of Labour and Social Policy and the Minister of Industry and Finance; the most recent documents mentioning this dialogue date from the month of September 1990 and also anticipate subsequent meetings. Moreover, the Government has stated once again, in its communication dated 28 February 1991, that it will do everything in its power to reach a solution satisfying the two parties to the dispute.
7. 312. In the light of all the documents provided, the Committee observes that the negotiations that have taken place throughout the year have concerned a wide range of problems, including several aspects of the claims presented by the Federation: supplementary taxation affecting the remuneration for work done on public holidays, budgetary endowments for the mining industry, a draft collective agreement and the wage structure in this industry. Agreements in principle have also been concluded on the remuneration system for the coalmining industry and on the question of changes in the system of remuneration in enterprises. Given the Government's willingness to conduct negotiations in this sector, the Committee considers that there was no violation of Conventions Nos. 87 and 98. However, the Committee hopes that the current negotiations will continue in order to reach a favourable outcome to the problems affecting the mining industry.
8. 313. In the Committee's opinion, the difficulties met in the settlement of the dispute which is the subject-matter of the present case seem to reveal a certain lack of clarity in the existing industrial relations system. The Committee stresses the necessity of having a stable and efficient industrial relations system, in which all affected parties may participate. It reminds the Government that it may call upon the services of the International Labour Office for any assistance it might deem necessary in this field.

The Committee's recommendations

1. 314. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee notes that the Government continued negotiating with the Federation of Mining Unions throughout the whole of 1990, about a number of questions concerning the mining sector, including several aspects of the claims presented by the Federation. The Committee requests the Government to keep it informed of the outcome of the bargaining which is taking place in this sector.
   • (b) The Committee draws the Government's attention the fact that the services of the ILO are at its disposal for any assistance that it might deem necessary for the establishment of an efficient and stable industrial relations system.