Informe definitivo - Informe núm. 336, Marzo 2005

1. 686. The complaint was presented by the Building Workers Trade Union (BUDOWLANI) in a letter dated 23 March 2004. The complainant sent additional information in a letter dated 4 May 2004.
2. 687. The Government sent its observation in a letter of 25 October 2004.
3. 688. 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. The complainant’s allegations

1. 689. In its communication of 23 March 2004, the complainant refers to the law of 26 July 2002 “on the amendment of the Labour Code and on the amendment of some other acts”, which introduced a new section 25/1 to the Trade Union Act. According to an unofficial translation, this section provides that: “the rights of the establishment trade union organizations are exercised by the organizations associating at least ten members being:
2. (1) employees or persons performing work on the basis of home work contract with the employer where the organization is active;
3. (2) officials of the police, frontier guards and prison service, who are on duty in the unit where serving for units covered by the activity of this organization.
   • Such a trade union organization is obliged to provide the employer or unit commander (in case of officials) on a quarterly basis – and on the last day of the quarter – by the tenth day of the month following a given quarter, with information on a total number of members of this organization. In accordance with section 34 of the Trade Union Act, this provision is also applicable to multi-establishment trade union organizations.”
4. 690. The complainant submits that section 25/1 deprives organizations with less than ten members working for a particular employer of the rights of establishment trade union organizations. According to the complainant, this provision implies that trade unions will not be able to carry on their activities if they regroup less than ten members, or in particular enterprises which employ less than ten employees. It also gives the employers an opportunity to eliminate trade union organizations by simply reorganizing their companies and creating smaller divisions. The complainant considers that section 25/1 discriminates against smaller trade union organizations as it defines the scope of trade unions’ rights on the basis of the number of their members.
5. 691. The complainant also indicates that it made some representations to national authorities on the question of compatibility of section 25/1 with the Constitution and with the ILO Conventions ratified by Poland. It received replies, which are summarized in its communication. In particular, the complainant submits that, on 23 May 2003, the “Bureau of Research of the Parliament of the Republic of Poland Chancellery” answered that depriving organizations which associate less than ten members of rights of trade union organizations should be considered as the introduction of another grade in the organizational structure of the trade union movement. No particular rights are recognized for trade unions associating less than ten members and the rights resulting from the interpretation of the Trade Union Act can only be very general. The new “trade union structure” creates a distinction between organizations associating less than ten members, which have no power to enter legal action, and larger organizations. The Bureau finally concludes that this distinction does not limit the worker’s freedom to associate, but marginalizes organizations with less than ten members.
6. 692. Furthermore, the complainant also indicates that the Trade Union Organization NSZZ Solidarnosc (hereafter NSZZ Solidarnosc) has addressed a complaint to the Constitutional Tribunal of the Republic of Poland to verify the constitutionality of section 25/1 of the Trade Union Act with article 12 of the Constitution of the Republic of Poland [1]. In its communication of 4 May 2004, the complainant indicates the Constitutional Tribunal ruled on 12 March 2004 that section 25/1 of the Trade Union Act is not inconsistent with article 12 of the Constitution of Poland.
7. 693. The complainant adds that, in fact, the Constitutional Tribunal considered that, by raising only the question of compatibility of section 25/1 with article 12 of the Constitution, NSZZ Solidarnosc chose the wrong Constitution article in its complaint. Article 12 is a general rule, which does not give either collective or individual legal rights, and cannot be substituted for other, more detailed articles of the Constitution. According to the complainant, the Constitutional Tribunal underlined that NSZZ Solidarnosc omitted to invoke articles 59 (concerning freedom of association in trade unions as a right of persons and citizens) and 31 (concerning admissibility of limitations of constitutional freedoms and rights) of the Constitution and that, because of this omission, it could not answer the question whether section 25/1 of the Trade Union Act was in conformity with those two articles.
8. 694. The complainant also indicates that the Constitutional Tribunal stated that the complaint of NSZZ Solidarnosc also raised the question of conformity of section 25/1 with ILO Conventions and that this problem could only be resolved by the Committee on Freedom of Association.

B. The Government’s reply

1. 695. In its communication of 25 October 2004, the Government takes the view that the allegations of the complainant are groundless and do not constitute a violation of Conventions Nos. 87 and 98.
2. 696. The Government indicates that the principle of freedom for the creation and functioning of trade unions in Poland is enshrined in the Constitution of Poland (article 12) and that this principle corresponds to the standards set out in Conventions Nos. 87 and 98.
3. 697. The Government indicates that the question of conformity of section 25/1 of the Trade Unions Act with the Constitution of Poland was examined by the Constitutional Tribunal, which decided, on 24 February 2004, that the provisions of this section were not inconsistent with the Constitution.
4. 698. The Government submits that the principal ground for the Constitutional Tribunal’s ruling was the following: the Constitutional Tribunal stated that the general principle contained in article 12 of the Constitution is specified in the provisions of article 59 of the Constitution, which stipulate that the scope of freedom of association in trade unions and in employers’ organizations may only be subject to such statutory limitations as are permissible in accordance with international agreements to which the Republic of Poland is a party. According to the Constitutional Tribunal’s decision, making the rights of the establishment trade unions dependent on the number of members does not limit the basic right of trade unions to freedom of association.
5. 699. The Government further explains that the provisions of section 25/1 of the Trade Union Act take into consideration the protection of entrepreneurs’ rights and freedom of association, deriving from article 20 of the Constitution which stipulates that a social market economy, based on the freedom of economic activity, private ownership, solidarity, dialogue and cooperation between social partners, shall be the basis of the economic system of the Republic of Poland. According to the Government, the lack of any conditions would lead in practice to the limitation of freedom of economic activity, inconsistent with the role of a trade union.
6. 700. On the other hand, the Government indicates that it has noticed that, if read in conjunction with section 25/1, the meaning of section 34 of the Trade Union Act could be unclear. For this reason, the Government proposed an amendment to the Trade Union Act, which was adopted by the Parliament on 8 October 2004 and sent on the same date for the President’s signature. The amendment is to enter into force in November 2004. According to the amended Act, the process of determining the number of members of a multi-establishment trade union organization will take into consideration the total number of members employed in all the establishments covered by the trade union in question. The Government indicates that this amendment allows for better protection of multi establishment trade union members associated in small and medium enterprises.
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     • Footnote [1]: Article 12 of the Constitution states that: “the Republic of Poland shall ensure freedom for the creation and functioning of trade unions”.

C. The Committee’s conclusions

1. 701. The Committee notes that in this case the complainant alleges that the Government has violated Conventions Nos. 87 and 98 by imposing, through the adoption of section 25/1 of the Trade Union Act, a legal requirement of a minimum membership of ten workers in order for an organization to exercise the rights recognized to establishment trade unions, thus giving the opportunity to employers to eliminate trade union organizations simply by reorganizing their companies and creating smaller divisions.
2. 702. The Committee understands, in particular in light of the answer submitted to the complainant, on 23 May 2003, by the “Bureau of Research of the Parliament of the Republic of Poland Chancellery”, that the minimum membership requirement applies to the recognition of certain rights and not to the creation of trade unions at the level of the enterprise; an organization which has less than ten members can be recognized as a trade union, but will not be able to exercise the rights recognized by the Trade Union Act to the establishment trade unions. Furthermore, the Committee notes that, according to the Government, an amendment to the Trade Union Act was adopted by the Parliament on 8 October 2004, clarifying section 25/1 so as to ensure that the process of determining the number of members of a multi-establishment trade union organization will take into consideration the total number of members employed in all the establishments covered by the trade union in question. Consequently, the Committee notes that the present complaint raises the question whether the imposition of a minimum requirement of ten members for a trade union to exercise the rights recognized to an establishment trade union under the Trade Union Act constitutes a violation of the right of workers to establish and join organizations of their own choosing, as provided by Article 2 of Convention No. 87.
3. 703. In this respect, the Committee recalls that, while a minimum membership requirement is not in itself incompatible with the Convention, the number should be fixed in a reasonable manner so that the establishment of organizations is not hindered. What constitutes a reasonable number may vary according to the particular conditions in which a restriction is imposed [see 324th Report of the Committee on Freedom of Association, Case No. 2090, para. 198].
4. 704. In the present case, the Committee considers that the minimum requirement of ten members to exercise the rights recognized to establishment trade unions would not appear to be excessive since, according to the Government’s explanations on the amendment to the Trade Union Act adopted on 8 October 2004, workers from an enterprise of less than ten employees can form a multi-establishment trade union with other workers from different enterprises and such a trade union will be considered as having met the minimum requirement of ten members by taking into account the total number of members employed in all the establishments covered by the trade union. The Committee can therefore conclude that the minimum membership requirement set out in section 25/1 of the Trade Union Act does not jeopardize the right of workers to establish and join organizations of their own choosing.