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27 June 2012
The International Labour Organisation (ILO) has provided the Polish government with recommendations that it change the legislation concerning employees' freedom of association.
On July 28 2011 the national commission of Solidarity, the Polish independent self-governing trade union, submitted a complaint to the ILO against the government. The complaint alleged that Polish legislation restricted the rights of certain categories of worker to establish and join trade unions and did not effectively protect against acts of anti-union discrimination.
The complaint was investigated by the ILO Committee on Freedom of Association at the 313th session of the ILO governing body (which took place between March 15 and March 30 2012). Having considered the case, the committee requested that the government take necessary measures to ensure that all workers, without any distinction (including self-employed workers and those employed under civil law contracts), enjoy the right to establish and join trade unions. The government was also requested to amend the Act on Trade Unions to ensure that home-based workers can establish and join trade unions.
Moreover, the committee recommended that the government ensure that all workers and their representatives enjoy adequate protection against acts of anti-union discrimination (regardless of whether they fall under the definition of 'employee' under the Labour Code). The government was also requested to provide the committee with information on the measures that have been taken and envisaged in order to bring Polish legislation and practice into conformity with freedom of association principles, in line with the above-mentioned recommendations. All these recommendations were included in the committee's report.
According to Article 2 of Convention 87 on the Freedom of Association and Protection of the Right to Organise Conventions, "workers and employers, without distinction whatsoever, shall have the right to establish and… to join organizations of their own choosing". Nevertheless, following an inaccurate translation of the word 'worker' in the Polish version of this convention, Polish labour legislation uses the term 'pracownik' (ie, 'employee'), instead of 'worker' as used in the convention. Under Section 2 of the Labour Code, an 'employee' is a "person employed on the basis of a contract of employment, an appointment, an election, a nomination or a cooperative contract of employment". Such definition is, according to the complaint submitted by Solidarity, much narrower than the term 'worker' used in the convention.
Taking into account that the term 'employee' used in the Act on Trade Unions is to be read in the light of the definition provided for by the Labour Code, it restricts the right of many categories of workers to establish and join trade unions. In particular, persons employed on the basis of civil law contracts, those who are self-employed and others who perform work but are not employees in the sense of the Labour Code, do not enjoy the right to organise provided for in Convention 87, due to the lack of an employment relationship. However, by virtue of the principles of freedom of association (provided for in the convention), all workers should have the right to establish and join organisations of their own choosing - it should not depend on the existence of an employment relationship. Therefore, the committee has requested that the Polish government take the necessary measures (including amendment of the legislation) to ensure that all workers (without any distinction) enjoy the right to establish and join trade unions.
Solidarity's complaint also alleged that the narrow definition of 'employee' provided for in the Labour Code may, in practice, result in lower protection being granted to trade union representatives if they are not employees in the sense of the code. This follows from the fact that the provisions of Act on Trade Unions dealing with the protection of trade union representatives use the term 'employee' in the sense of the Labour Code and thereby exclude all other categories of worker or provide for a different scope of protection. The committee agreed and, stating that Convention 98 on the Right to Organise and Collective Bargaining protects all workers and their representatives against acts of anti-union discrimination, it requested that the government ensure that all workers and their representatives enjoy adequate protection against acts of anti-union discrimination (regardless of whether they fall within the definition of an 'employee' under the Labour Code).
The last allegation of the complaint was that the Act on Trade Unions made a distinction between those who can establish and join trade unions and those who can only join trade unions (eg, home-based workers, unemployed and retired persons). In this respect, the committee stressed that home-based workers are not excluded from the application of Convention 87 and should therefore have the right to establish and join trade unions. However the committee found that granting retired workers and unemployed the right solely to join trade unions is not contrary to the convention.
The outcome of the committee's proceedings had been expected, as Polish laws clearly infringe the relevant ILO conventions. Following the recommendations made by the committee, the government should amend Polish labour legislation to ensure that the right to establish and join trade unions is granted not only to 'employees' in the sense of the Labour Code, but also to other categories of worker (including home-based workers, those who are self-employed and those employed under civil law contracts).
The government has also been requested to ensure that the same degree of protection against acts of anti-union discrimination is provided to all categories of worker. Information regarding the measures taken by the government should be provided to the committee. The committee has no real ability to force the government to take such action. However, if the government does not follow the recommendations, the committee is entitled to publish the information about such defaults in Polish labour legislation.
Implementation of the committee's recommendations will materially strengthen Polish national trade unions, which already have a significant bargaining power and enjoy many privileges. The government will be under a certain degree of pressure from the public to amend the relevant laws, but it is as yet unclear how it will act.
For further information on this topic please contact Sławomir Paruch or Roch Pałubicki at Soltysiński Kawecki & Szlęzak by telephone (+48 22 608 7000), fax (+48 22 608 7070) or email (firstname.lastname@example.org or email@example.com).
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