Informe definitivo - Informe núm. 206, Noviembre 1980

1. 5. The Committee has already examined this case, in May and November 1979, when it submitted interim reports to the Governing Body.
2. 6. 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).
3. 7. During its earlier examination of the case in November 1979 the Committee stated that "the adoption of the necessary amendments to the Trade Union Act and the clarification of the situation with regard to the other aspects of the case could be facilitated by the establishment of direct contacts on these matters between the Government and the ILO" (paragraph 557 of the 197th Report). In February 1980, followed by a confirmation on 26 March, the Minister of Labour of Poland invited a representative of the Director-General to "make an official visit to Poland for a joint over-all review of the application of ratified Conventions in order to find solutions to the difficulties encountered in the application of certain of them". The Director-General appointed Mr. Nicolas Valticos, Assistant Director-General and Adviser for International Labour Standards, to represent him and to carry out this mission, which took place from 5 to 14 May 1980.
4. 8. During the mission the representative of the Director General had talks with the Minister of Labour, the Under-Secretaries of State for Labour and senior officials of the Ministry. He was received by the Vice-President of the Council of State and the Under-Secretary of State for Foreign Affairs. He also met the President of the Central Council of Trade Unions and had talks with trade union representatives in the various undertakings which he visited. Finally, he had talks with the President of the Polish Chamber of Foreign Trade and the President of the Bureau of Polish Employers for International Co-operation.
5. 9. The representative of the Director-General stated in his report that he had been received with great courtesy by everybody and that the most delicate problems had been discussed in a relaxed atmosphere. The persons whom he met, he added, all expressed their wish to co-operate fully with the ILO.
6. 10. More recently, the representative of the Director General, Mr. Valticos, with the agreement of the Government, spent two days in Warsaw, from 22 to 24 October 1980, and met in particular the Minister of Labour, Mrs. Milczarek and the Vice Minister of Labour, Mr. Obodovsky, who described to him in detail the developments of the last few months in the trade union situation and the prospects for its evolution. He was also received by the Chairman of the Committee entrusted with the preparation of a new Trade Unions Act, Professor Zawadski, who informed him of the stage reached in the Committee's work, the principles already agreed on in the Committee - which are based in particular on Convention No. 87 - and the proposed time-table.
7. 11. These discussions took due account of ILO standards and procedures and of the co-operation which the ILO can afford to States.
8. 12. In a communication of 30 October 1980, the Government stated that the representative of the Director-General's visits had been useful, and that they had provided an excellent opportunity to hold a series of meetings with the representatives of the government authorities, the trade unions and the organisations of the socialist sector of industry, in the course of which the respective positions with regard to the principal questions being examined were presented in full sincerity. The Government went on to express its appreciation to the representative of the Director-General for his benevolent attitude and his desire to make a sincere contribution to the search for appropriate means of solving the problems arising in the application of ratified Conventions.
9. 13. Since the first visit of the representative of the Director-General to Poland the ILO has received two communications from the International Confederation of Free Trade Unions (ICFTU) dated 21 August and 15 September 1980. For its part, the Government has sent information and observations in communications dated 2 September and 30 October 1980.
10. 14. In addition, the Chairman of the Committee twice met the Vice-Minister of Labour, Mr. Obodovsky, in Geneva, first during the International Labour Conference in June 1980 and secondly just before the Committee met, on 8 November 1980. Finally, the Committee invited the Vice-Minister of Labour to give it information orally, at its meeting of 11 November 1980, on the evolution of the trade union situation in Poland.
11. 15. The Committee wishes in the first place to express its appreciation of the manner in which the Government has collaborated in the proceedings. The Committee considers that the various contacts which have been maintained with the Government have been of great value and that they have made possible a broad exchange of views with the common objective of ensuring fuller implementation of trade union rights.
12. 16. The allegations referred on the one hand to the legislation on the registration of trade unions and on the other to measures taken against a number of members of organisations mentioned by the complainant.

A. Allegations concerning trade union legislation

• (a) Earlier examination
  17. 17 The ICFTU referred to various provisions of the Trade Unions Act of 1 July 1949, which had been the subject of observations made by the Committee of Experts on the Application of Conventions and Recommendations, relating to the right of workers to establish Organisations of their own choosing without previous authorisation, and the right of these organisations to draw up their Constitutions and rules, to Organise their administration and activities and to formulate their programmes (Articles 2 and 3 of Convention No. 67).
  18. 18 The complainant organisation referred in particular to section 5 of the Trade Unions Act of 1949, which provides that the body centrally representing the trade union movement in Poland shall be the Federation of Trade Unions, and to section 9 of the Act, which delegates to the Central Council of Trade Unions the power to register every new trade union or to refuse registration.
  19. 19 The Government recalled the statements which it had made in the reports on Convention No. 87 presented under article 22 of the ILO Constitution, and stated that the amendment of the legislative provisions on trade unions was in progress with a view to bringing the relevant provisions formally into line with the provisions of Convention No. 87. The Government also stated that it was willing to communicate to the ILO information on the changes to be made and the amendments envisaged to the legislation on trade union activities.
  20. 20 At its November 1979 Session the Governing Body, on the recommendation of the Committee:
  1. (1) again noted the Government's statement that work on the amendment of the relevant legislation was continuing with a view to bringing it into line with the standards of Convention No. 87;
  2. (2) stressed the importance which it attached to promulgation of trade union legislation: in full harmony with this Convention and to its application in the very near future and, in the meantime, to the taking of measures to ensure that all organisations set up by workers for the promotion and defence of their occupational interests might carry on their activities in full freedom;
  3. (3) requested the Government to keep the Committee informed of any developments in the above matters;
  4. (4) brought the above conclusions to the notice of the Committee of Experts on the Application of Conventions and Recommendations.
• (b) Information received subsequently
  1. (1) Mission report of the representative of the Director-General
  21. 21 In his mission report the representative of the Director-General stated that discussions had been held on the necessary amendments to the legislation both with the representatives of the ministry of Labour, the Ministry of Foreign Affairs and the Vice-President of the Council of State and with the President of the Central Council of Trade Unions. In these discussions the interlocutors with the representative of the Director-General stressed the Government's desire to solve the problem of the application of Convention No. 87 within the national framework and its readiness to co-operate with the ILO. The President of the Central Council of Trade Unions also stated that the amendments to the trade union legislation were to be examined by the Congress of Trade Unions to be held in December 1980. For his part, the head of the International Relations Service of the Central Council of Trade Unions indicated that he favoured the harmonisation of the legislation with international standards on freedom of association. Lastly, at the final meeting at the Ministry of Labour, the representative of the Director-General received confirmation that steps were being taken to amend the Act and to bring it into line with the Convention. To this end, the representative of the Director-General indicated to the authorities that the TLC would be prepared to advise the Government on the draft of the new legislation, so as to avoid fresh incompatibilities with the Convention.
  2. (2) Communication of the Government
  22. 22 In its communication of 30 October 1980, the Government refers to its talks with the representative of the Director-General, during which the Government clearly confirmed that it is envisaging, with the co-operation of the trade unions, the introduction of amendments to the legislation so as to meet the comments of the supervisory bodies, without however affecting the position and role of the trade unions within the system of a socialist State. The Government also stressed that the measures taken with a view to bringing the National legislation into full conformity with Convention to. 87 were and still are totally independent of the complaint lodged with the ILO by the ICFTU. The Government adds that at the conclusion of these discussions a concordance of views had clearly emerged as to the heed to proceed with the appropriate amendments of the legislative provisions relating to trade unions as soon as possible, while leaving it to the competent Polish authorities to choose the most appropriate form for the implementation of the necessary changes.
  23. 23 The Government goes on to observe that the events which have taken place in Poland have introduced new elements into the previous situation, in particular in the trade union movement and in its relations with the administration of the economy and of the State. The Government refers in this regard to the agreements which it has signed with the representatives of the workers of certain undertakings in different regions of the country on the activities of new trade unions. The creation and activities of these new, independent and self-governing trade unions, the Government adds, is in accordance with Conventions Nos. 87 and 98. The plurality of the representation of trade unions and workers will require appropriate amendments to the legislation. To this end, the Government undertakes to take the necessary legislative initiatives, in particular in relation to the Trade Unions Act, the Self-Government Act and the Labour Code.
  24. 24 The Government describes the characteristics of the present position of the trade union movement. It explains that the changes initiated in the existing trade unions have led to a change in their activity so that they may become a genuine partner of the administration. In numerous existing trade unions, a movement towards autonomy from the Federation of Trade Unions and towards the adoption of a structure based on self-government are emerging. When the workers so wish, fresh trade union elections are held in workplaces, leading to better conditions for self-government and renewed confidence of the workers in their representatives. In addition, wherever the workers so wish, new trade unions independent of the existing structure are being formed in a variety of undertakings, occupational sectors and regions of the country. The Government states in this regard that the choice of the form of the organisations, of their activities and of their trade union structure will depend on the workers and members themselves. One must, according to the Government, consider the developments which are currently taking place in the trade union movement in Poland as constituting a process which is still in the course of evolution.
  25. 25 Ordinary or extraordinary assemblies of the trade unions are taking place in this new climate. The Government goes on to state that 17 of them have already held their assembly and that the 6 remaining unions will hold theirs before mid-November 1980. The principal items on the agenda of these assemblies concern the declaration in favour of an independent, self-governing trade union, functioning outside the framework of the Federation of Trade Unions (Central Council of Trade Unions); the adoption of a new Constitution and of a programme of activities; and the election of a new executive Committee. The formal decision which will have to be taken on the future of the Central Council of Trade Unions will require solutions to be found to several questions of a legal and legislative nature, in view of the prerogatives enjoyed by the Central Council in a number of fields.
  26. 26 At the same time, a beginning has been made with the process of creating and registering new trade unions on the basis of the agreements mentioned above. The trade unions thus constituted have rights and duties equal to those of the existing organisations. In accordance with the agreements, trade unions can be created wherever the working class so wishes, with due respect for the principles of the Constitution and international undertakings.
  27. 27 With a view to enabling the new trade unions to be registered otherwise than in the register kept by the Central Council of Trade Unions, pending the adoption of legislation laying down the principles and manner of registration the Council of State has adopted a decision, which entered into force on 15 September 1980, by virtue of which the founding Committees of newly created trade unions can apply to Warsaw Voïdova Court for registration.
  28. 28 In addition, on 8 October 1980 the Diet adopted an Act amending the Trade Union Act of 1 -July 1949. This amendment does not amount to a new Act, but deals only with the question of registration and confirms, in legislative form, the decision of the Council of State of 13 September 1980. By virtue of this amendment, a trade union: or regional federation of trade unions acquires legal personality as from the date of its registration by the Warsaw Voïdova Court. The principle applied since 15 September 1980 has thus been confirmed by legislation and the Warsaw Voïdova Court has become the competent body for the registration of trade unions, otherwise than in the register kept by the Central Council of Trade Unions.
  29. 29 As at 27 October 1980, the Warsaw Voïdova Court has received 34 applications for registration. These have come from plant-level trade unions as well as unions representing occupational sectors at the regional or national levels. Decisions with the force of law have been pronounced by the Court concerning the registration of 15 trade unions, which the Government lists. The other applications for registration, the number of which is not yet finalised, are being examined one by one. Certain applications have been refused. Thus, for example, the Court has rejected the application of the Independent Self-Governing Trade Union of the Private Road Transport Workers of Zabrze. The objectives of the applicants are not in accordance, in the opinion of the Court, with the nature of trade union activities but correspond rather with those of an association. The applicants have the right of appeal to the Supreme Court.
  30. 30 The Court also has to examine some more complex applications. For example, it has adjourned until 29 October 1980 its decision in the case of the Independent Self-Governing Trade Union of Agriculturalists in Warsaw on the ground that it required further consideration. On 24 October 1980, the Court examined the application for registration of the independent self-governing trade union (ISGTU) "Solidarity" of Gdansk, whose activities cover the whole country. The Court decided to register this organisation with corrections to certain provisions of its Constitution. In reaching this decision, the Court was guided by considerations of a fundamental nature, the first of which was the question of the conformity of the organisation's Constitution with the principles of the national Constitution and the provisions of the Labour Code as well as with the spirit and letter of the agreements signed between the Government and the workers' representatives. Under the terms of the decision of the Council of State on the registration of new trade unions the ISGTU "Solidarity" can appeal to the Supreme Court.
  31. 31 The Government states that, independently of the judicial procedures and the act of registration, the founding Committees of the new trade unions are carrying out a broad range of activities throughout the country. By way of example, the Government refers to the creation of "Solidarity" trade union Committees in Jelenia Góra, Przemysl and Wroclaw as well as of smaller organisations for particular occupational groups such as workers in external trade, in the courts of justice and in veterinary services. In several voïdovas, lawyers have set up advisory services to assist the founding Committees in drawing up their Constitutions in conformity with the national Constitution and other provisions of the law. Services of this kind have been established in Zielona Góra, Bialystok, Katowice, Opole and Warsaw, where legal assistance is provided by judges, procurators, lawyers, specialists of the Polish Academy of Science and representatives of the Ministry of Justice. In addition, on 27 October 1980 a meeting was held in Warsaw between the chairmen of the executive Committees of the trade unions, during which it was decided to create a trade union co-ordinating Committee composed of the chairmen of the executive Committees. The main tasks of this Committee will be to exchange experience, to undertake mutual consultations and to draw up a common position or questions concerning the workers as a whole. This constitutes a new form of co-operation between trade unions.
  32. 32 With respect to the Trade Unions Act of 1 July 1949, the Government states that on 23 September 1980 the Council of State adopted a decision concerning the establishment of a group to be entrusted with the preparation of a Trade Union Bill. This group, chaired by Professor Sylwester Zawadzski, President of the Supreme Administrative Court and of the Diet Committee for Legislative Action, consists of 9 academic specialists in labour law, social policy, sociology and economics, 12 representatives of the ISGTU "Solidarity", 5 representatives of the old trade unions and 8 practising lawyers.
  33. 33 The opening meeting of the group took place on 17 October 1980 in Warsaw. During the meeting, the Chairman indicated that it had been entrusted with two essential tasks: first, to draw up and adopt detailed principles for the trade union legislation and submit them to public consultation; and, secondly, to draw up - on the basis of the results of this consultation - a Trade Unions Bill and submit it to the Legal Committee of the Council of State. He described the general principles which should be included in the Bill and indicated that it was essential to ensure that the Act would be in conformity with the standards of international law. During the discussion of the theses presented by its Chairman, the members of the group gave their approval to the general principles of the new legislation, although differing points of view emerged on certain questions. These differences related in particular to trade union membership - only for employees within the meaning of labour law or also for other categories of workers - the representation of workers in an undertaking in which there is more than one trade union, the establishment of better systems for settling collective labour disputes by means of mediation and arbitration and, on this basis, the right to strike and questions relating to it. The group in addition adopted an outline plan for its future work, taking account of the need to prepare the preliminary principles for the Bill on the basis of the different opinions held on the controversial questions.
  34. 34 In conclusion, the Government expresses the view that the information it has provided is a full response to the recommendations of the Committee and the Governing Body. It adds that as a result of the measures taken by the authorities, particularly in the field of trade union legislation, the allegations made by the ICFTU in July 1978 are no longer of current concern. The Government goes on to say that it would seem just to consider the question closed. It affirms in addition that it will keep the Director-General of the ILO and the Committee of Experts on the Application of Conventions and Recommendations informed of the progress being made in the work on the preparation of the new trade union legislation.
  3. (3) Statement of the Vice-Minister of Labour
  35. 35 The Vice-Minister of Labour was concerned first of all to recall that the Government had always sought to facilitate the work of the Committee as much as it could. He stated that this was the purpose behind the visits of the representative of the Director General to Warsaw and his presence before the Committee.
  36. 36 The Vice-Minister went on to refer to information already supplied by the Government, in particular on the establishment of a group entrusted with the preparation of a Trade Unions Bill. He stated that the establishment of this group formed part of an evolutionary process which should result, in the course of the next few months, and probably at the beginning of 1981, in the adoption of a new Trade Unions Act.
  37. 37 On the registration of the new trade unions, the Vice Minister stated that the Warsaw Voïdova Court had so far registered 21 new trade unions. The old trade unions, which already had legal personality, did not need to be registered. The Vice-Minister indicated that the difference which had arisen concerning the registration of the Independent, Self-Governing Trade Solidarity of Gdansk did not affect the other new trade unions.
  38. 38 As regards this particular case, the Vice-Minister indicated that, on 10 November 1980 the Supreme Court heard the appeal of the founding Committee of the Independent, Self-Governing Trade Union "Solidarity" against the decision of the Warsaw Voïdova Court. It decided to confirm the registration of the trade union on the basis of the Constitution as drawn up by the union with certain amendments introduced by the organisation itself. These consisted of the appending to the Constitution of the first part of the Gdansk agreements and of the text of the ILO freedom of association Conventions, Nos. 87 and 98. This part of the Gdansk agreements contains in particular the recognition of the leading role of the party in the State, of the principles of the political system and of the international agreements concluded by Poland.
  39. 39 The Government had received with satisfaction the decision of the Supreme Court, which put an end to the tension created around the registration of the ISGTU "Solidarity". This decision makes it possible to ensure all the conditions necessary for normal activity by the trade union. The Government for its part will take the essential measures to ensure practical co-operation at all levels, namely in each undertaking, in each industry and at the level of the ministry.
  40. 40 The Vice-Minister also stated that there was collaboration between the old and new trade unions in certain sectors. He added however that trade union plurality was recent in Poland, and that score time would be needed before collaboration was established in all sectors. The Vice-Minister indicated that in the Government's view the division of the trade union movement was regrettable and that the different organisations should make every effort to maintain the solidarity of all the workers in accordance with a long tradition in Poland.
  41. 41 On the subject of collective bargaining, the Vice Minister informed the Committee that Poland was now going through a transitional phase in the course of which labour relations were taking new forms. He stated that negotiations were being carried on with the new trade unions.
  42. 42 The Vice-Minister finally declared his conviction that the situation which had been the subject of the complaint was now completely overtaken by events and that consequently the case before the Committee should be finally concluded.

B. Allegations concerning reprisals against officials of certain organisations

• (a) Earlier examination
  47. 47 Certain allegations referred to reprisals by the authorities against a number of members of the Social Self-Defence Committee (KOR), the Founding Committee of the Free Trade Unions of the Baltic Coast and a similar Committee in the Katowice region. In particular, ICFTU referred to the alleged harassment of Wladyslaw Sulecki, a miner at the Glivice mine and a member of the editorial Committee of the newspaper Robotnik, and Kazimierz Switov, a television repairer in Katowice and a member of the KOR. Ten persons were said to have been arrested following the storming by the police of the home in Gdansk of Krzystop Wyszkowski, a member of the Founding Committee of the Free Trade Unions of the Baltic Coast. Among those arrested the ICFTU mentioned the names of K. Wyszkowski, Jósef Sreniouski, Blazej Wyszkowski (later sentenced to two months' imprisonment for obstructing the police in the discharge of their duties) and Edwin Myszk.
  48. 48 In its observations concerning these allegations the Government affirmed that these persons were punished not for trade union activities but for offences involving penal or administrative liability. The Government specified the grounds (theft, drunkenness, unjustified absence, threats of knifing, embezzlement of state funds, etc.) on which disciplinary, administrative or penal sanctions had been imposed, sometimes several years earlier, on the persons mentioned in the complaint.
  49. 49 It appeared, however, from the information supplied by the Government, that in recent cases certain persons had been arrested and prosecuted for breach of the peace, assault and insulting behaviour to officers of the civic militia. The Committee did not have precise information on the facts constituting the basis for these offences, but noted that the persons concerned were linked with the Committees mentioned by the ICFTU and constituted shortly beforehand outside the framework fixed by the current legislation
  50. 50 At its November 1979 Session the Committee recalled that the mere fact of carrying on a trade union activity or holding a trade union office did not guarantee immunity from ordinary criminal law. It added that any sentences passed on trade unionists on this basis should not induce the authorities to take a negative attitude to the organisation itself, of which these persons and others were members. In the present case the Committee noted that the Government had not replied to the allegations that several active members of these organisations had been subjected to harassment. In any case, the Committee continued, it was important that workers belonging to these organisations should be able to do so in a climate of full security.
• (b) Information received subsequently
  51. 51 During his mission the representative of the Director General expressed the wish to meet certain of the persons who had been arrested and later released. Finally, it was not possible for these meetings to take place. Nevertheless, the Government told the representative of the Director-General that the persons were all at liberty and that those who had been prosecuted had a bad record. It was also stated that no sentences had been imposed as long as the demonstrations took place in an orderly manner without riots.
  52. 52 Since this mission took place the ICFTU announced in a telegram of 21 August 1980 that the authorities had arrested trade unionists and leaders of the Social Self-Defence Committee (KOR) on 20 August 1980, for having taken part in strikes called by the Polish workers in defence of their purchasing power and respect for trade union rights. Subsequently, in its letter of 15 September 1980, the ICFTU indicated that the KOR trade unionists and leaders had been released.
  53. 53 In its communication of 30 October 1980 the Government reaffirms that no individual and no activist can be arrested or detained by reason of his trade union activity, in accordance with the provisions of Convention No. 87.
  54. 54 In an appendix to its communication the Government provides information on certain persons mentioned in the ICFTU complaint. It thus indicates that Kazimierz Switov is resident in Katowice and acting as secretary of the Inter-undertaking Workers' Committee of the iron foundries Huta Katowice. The information supplied previously concerning him remains unchanged. Wladyslaw Sulecki is at present living with his family in the Federal Republic of Germany where he went on 4 March 1979 for permanent residence. Blazy Wyszkowski is living temporarily in Koscierzyn and working for the regional public road works corporation as a worksite manager. Józef Srenicwski is resident in Lodz where he is active in the independent self-governing trade union "Solidarity". Edwin Myszk is resident in Gdansk Mrena. In June 1980 he voluntarily terminated his contract of employment in the Budimor undertaking and has not so far taken up other employment.

A. Allegations concerning trade union legislation

• c) The Committee's conclusions
  43. 43 The Committee notes the information provided by the Government during the visits of the representative of the Director General, in its communications and in the statement of the Vice Minister of Labour it notes with interest in particular the evolution which has taken place in the trade union situation in Poland over the last few months. In this connection, the Committee observes that in May 1980 the Government had already evidenced its desire to co-operate with the ILO and to solve the problem of the application of Convention No. 87 by amending the Trade Unions Act. Subsequently, the movements launched by the workers in various regions of the country led to major modifications in the Polish trade union movement. In order to allow the newly created organisations to be registered a substantial amendment affecting the registration of organisations was made to the Trade Unions Act, 1949.
  44. 44 The Committee notes with satisfaction that, following the adoption of this amendment, a significant number of trade union organisations acquired legal personality by registering with a judicial authority and without the need to register with the Central Council of Trade Unions.
  45. 45 The Committee has also noted with satisfaction that the Supreme Court decided on 10 November 1980 that, the trade unions having exclusive competence to draw up their Constitutions, the Warsaw Voïdova Court had exceeded its powers in introducing amendments to the Constitution of an organisation which had applied for registration. The Committee noted with keen interest that, at the request of this organisation, the text of Conventions Nos. 67 and 98 was included as an appendix to its Constitution.
  46. 46 As regards the preparation of a new Trade Unions Act, the Committee notes that a group, with a very wide membership, has been entrusted with the drawing up of a Bill and has already started working on this task. The Committee expresses the hope that this group will be able to conclude its work in the near future, in full compliance with the Conventions ratified by Poland. For this purpose, it would certainly be desirable for the Government to remain in contact with the International Labour Office which is ready to provide any assistance which may be required. In addition, the Committee would wish to be kept informed of future developments.

B. Allegations concerning reprisals against officials of certain organisations

• c) The Committee's conclusions
  55. 55 The Committee notes with interest the detailed information supplied by the Government on the present position of certain individuals mentioned by the ICFTU, from which it appears that the persons concerned are now all at liberty, some of them holding a trade union position. It appears in addition, from the statement made by the ICFTU, that all the persons alleged to have been arrested in August 1980 have been released.