Definitive Report - Report No 392, October 2020

1. 910. The complaint is contained in a communication from the Independent and Self-Governing Trade Union “Solidarność” (NSZZ “Solidarność”) dated 10 December 2018.
2. 911. The Government provides its observations in a communication dated 13 May 2019.
3. 912. 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. 913. In its communication dated 10 December 2018, the complainant denounces the lack of a proper application under Polish law of Convention No. 98 and of the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113). It states that the provisions of these instruments are implemented primarily through norms contained in the Trade Unions Act, 1991 and, in some cases, through special regulations which concern the principles of consultation on the salaries of certain professional groups. In particular, through the Regulation of the Minister of Health of 8 September 2015 on the General terms and conditions of contracts for providing healthcare services (the Regulation) the legislator specified the rules for determining the wages of nurses and midwives. Section 2(4)(1) of the Regulation states: “The service provider ... transfers the signed, amended contracts together with: 1) a copy of the agreement agreed with representatives of the trade unions of nurses and midwives associating solely nurses and midwives, operating at the service provider, detailing monthly distribution of funds for remuneration of nurses and midwives referred to in subparagraph 3 point 1, taking into account an average increase in remuneration along with other components and derivatives by 300 PLN per full-time post or full-time equivalent.” According to the complainant, this section grants the exclusive right to negotiate wages to the representatives of trade unions of nurses and midwives associating solely nurses and midwives operating with the service provider (the employer within the meaning of the Labour Code), which means that all other trade unions operating in Poland were deprived of the possibility to influence the rules of division and the amount of the remuneration for this professional group, even though their members also include nurses and midwives employed with the service provider and they are directly interested in the subject of consultations. The complainant thus denounces the statutory exclusion from consultations on wage increases of nurses and midwives, representatives of trade unions other than the Trade Union of Nurses and Midwives (which associates solely nurses and midwives operating with the employer). The complainant contends that through legislative activity, the legislator acted in violation of Article 4 of Convention No. 98, which encourages collective bargaining with a view to conclude collective agreements and alleges that the Regulation favours one trade union and discriminates, in terms of the pay negotiating procedure, against other trade unions, including representative ones, legally operating in Poland and associating, among other professions, also nurses and midwifes. Accordingly, the complainant has requested the Minister of Health to amend the said Regulation in September 2018 but no action has been taken and the complainant has not received any reply. It considers that the Regulation should be amended in a way not to discriminate between trade unions in the process of wage negotiations and to ensure wide participation of interested union organizations in wage negotiations in the health sector.
2. 914. Furthermore, the complainant denounces a discrepancy between the wording of Article 4 of Convention No. 98 and its Polish translation. While the Convention refers to collective agreements, the Polish version limits the term collective agreements to collective labour agreements, the two being distinct in the Polish legal order: collective labour agreements (uklady zbiorowe) are agreements concluded under the Labour Code and collective agreements (porozumienia zbiorowe) are those concluded, for instance, under the 2015 Regulation. According to the complainant, the Supreme Court of Poland rightly noted this problem of terminology when it considered that the Polish translation suggests that the agreements to be concluded are collective labour agreements, a notion that is less broad than that of collective agreements, and that it is the English and French versions of the Convention that should constitute the legal basis for all kinds of collective agreements concluded between the parties.
3. 915. The complainant also points out that Recommendation No. 113 provides for cooperation with interested workers’ organizations in order to support consultations at the sectoral level, such as the health sector in this case, and contends that consultation and cooperation between public authorities and employers’ and workers’ organizations, as well as between these organizations, should be applied without any kind of discrimination and should not derogate from freedom of association or from the rights of employers’ and workers’ organizations, including their right to collective bargaining. While the Recommendation refers to cooperation between public authorities and organizations at the level of legislative acts, according to the complainant, the rule should also apply to branch negotiations in the health sector and at the level of the workplace with representatives of all interested trade unions, since the current ILO standard is the requirement of equal treatment of interested trade union organizations in matters of wage bargaining, both at company and supra-company levels.

B. The Government’s reply

1. 916. In its communication dated 13 May 2019, the Government provides background to the case, indicating that a crisis in the operation of the Tripartite Commission on Social and Economic Affairs – the national institution of inter-industrial social dialogue – coincided with a protest of nurses and midwives with the aim of obtaining an increase in remuneration, which prompted the Minister of Health to take action from the beginning of 2015 with the objective of reaching an understanding with this vocational group. The Minister thus engaged in talks with the representatives of the National Trade Union of Nurses and Midwives, the largest medical profession union with a membership of 80,000 nurses and midwives out of the total of 218,723, and came to an understanding which formed the basis of the 2015 draft Regulation. According to the Government, the 2015 Regulation was elaborated in accordance with legal requirements on the manner of conducting public consultations, in particular, by safeguarding the rights of trade unions to express their opinion on draft legislation under Article 19 of the Trade Unions Act. Public consultations prescribed under the law were also applied in the elaboration of an amending Regulation in October 2015 and in August 2018.
2. 917. The Government further informs that the activities of the Ministry of Health – including legislative work – are aimed at regulating the issue of salaries of nurses and midwives in a manner which satisfies any and all legal standards. Accordingly, the scheme provided under the Regulations was drafted as a special and incidental provision, dedicated to nurses and midwives practicing their profession among service providers, and was to have the effect of increasing their remuneration at a strictly defined time. This had the effect that the mechanism under section 2(4)(l) of the 2015 Regulation could be applied for the last time in July 2019 and, under the 2018 Regulation, the director of the relevant branch of the National Health Fund was obliged to present, at the latest in July 2019, the amount of additional funds for healthcare provided by nurses and midwives between September 2018 and August 2019. Furthermore, as a result of section 4a inserted by the 2018 Regulation, an obligation has been introduced for service providers to earmark, as of 1 July 2019, at least 1,100 Polish zloty (PLN) received from the National Health Fund for the increase of the basic salary of each nurse and midwife who meets the conditions set out by this provision. Every nurse and midwife should thus receive the raise in question and such a raise, up to the indicated amount, is not negotiable under the procedure for the distribution of funds transferred for healthcare provided by nurses and midwives. The Government also contends that since the 2018 Regulation has taken effect, the option of applying the mechanism provided under section 2(4)(1) of the 2015 Regulation has been eliminated for all intents and purposes. Additionally, in June 2017, an Act was adopted concerning the manner of determining the lowest basic salary for certain employees employed by healthcare entities. The 2017 Act introduces the lowest basic salary for healthcare personnel, including all nurses and midwives employed by healthcare entities, provides for the gradual increase of basic salaries and states that the procedure for determining the manner of increasing the salary is subject to annual negotiations between the employer (healthcare entity) and the trade unions at the establishment entitled to conclude collective labour agreements.
3. 918. The Government further indicates that the Minister of Family, Labour and Social Policy has regularly reminded the members of the Council of Ministers of the obligations to consult the social partners under existing legislation. In December 2015, following the establishment of the Social Dialogue Council, the Minister forwarded a letter to all members of the Council of Ministers, advising about the new forum of public consultation and new consulting responsibilities entailed by its establishment. The Minister also reminded that the rights of the Social Dialogue Council do not exclude the obligation of soliciting opinions on draft proposals and draft legislation from representative social partners’ organizations under section 19 of the Trade Unions Act and section 16 of the Employers’ Organizations Act. After the social partners had raised the issue of irregularities concerning consultations on draft legislation, the Minister of Family, Labour and Social Policy forwarded a letter in March 2017 to members of the Council of Ministers with a reminder as to the obligations of conducting consultations under existing legislation. In addition, once the Minister became the Chairperson of the Social Dialogue Council, she requested members of the Council of Ministers to take particular care in observing the provisions of the Social Dialogue Council Act, which imposed a number of obligations upon the Government.
4. 919. The Government concludes by affirming that the contested Regulation does not entail discrimination of other processional groups in the healthcare system or of trade unions which are members of representative unions at the national level, as these organizations are entitled to bring matters of great public or economic significance to the Social Dialogue Council with a view of expressing opinions or of initiating negotiations for reaching an understanding on a particular personal and material scope.

C. The Committee’s conclusions

1. 920. The Committee notes that the complainant in this case alleges the statutory exclusion of trade unions other than trade unions associating solely nurses and midwives from negotiating collective agreements setting the remuneration for this category of workers, as well as a discrepancy between the wording of Convention No. 98 and its Polish version concerning the term “collective agreement”.
2. 921. The Committee notes in particular the complainant’s allegations that the 2015 Regulation which sets the rules for determining the wages of nurses and midwives working at service providers is not in line with Convention No. 98 as it gives the exclusive right to negotiate collective agreements concerning wage remuneration of nurses and midwives to trade unions solely representing this category of workers. The Committee also observes that while the complainant alleges that this leads to favouritism and discriminatory treatment through the exclusion of other trade unions from the process, even though they have a representative status and have among their members nurses and midwives employed with the service provider, the Government contends that the Regulation was elaborated following public consultations and does not entail discrimination of other trade unions – members of representative unions at the national level – as these organizations are entitled to bring matters of great public or economic significance to the Social Dialogue Council with a view of expressing opinions or of initiating negotiations for reaching an understanding on a particular personal and material scope. The Committee understands from the above that the issue at hand relates to the determination of the trade unions entitled to participate in wage negotiations in the health sector under the 2015 Regulation, in particular with regard to the remuneration of nurses and midwives practicing at healthcare providers. The Committee wishes to recall in this regard the importance it attaches to the fact that workers and employers should in practice be able to freely choose which organization will represent them for purposes of collective bargaining. [see Compilation of decisions of the Committee on Freedom of Association, sixth edition, 2018, para. 1359]. Should bargaining rights be an exclusive prerogative of the most representative union at the bargaining level, the determination of its representative character should be made by virtue of objective and pre-established criteria.
3. 922. The Committee further observes that there are differences of opinion between the complainant and the Government as to whether the contested provision of the 2015 Regulation continues to apply or whether it has been fully replaced by further legislative acts. On the one hand, the complainant alleges that the Regulation is applicable and requests its amendment so as to allow wide participation of interested trade unions in wage negotiations in the health sector. On the other hand, the Government affirms that the scheme proposed by the 2015 Regulation was an incidental provision aimed at increasing the remuneration of nurses and midwives practicing among healthcare providers at a strictly defined time – up to July 2019 – and that as a result of the 2018 Regulation, the mechanism provided under the contested section 2(4)(1) has been eliminated. In addition, an Act from 2017 now provides the minimum wage for healthcare providers and also states that the procedure for determining the manner of increasing the salary is subject to annual negotiations between the employer (the healthcare entity) and the trade unions at the establishment entitled to conclude collective labour agreements. Taking due note of the legislative developments reported by the Government, the Committee trusts that the laws and regulations currently in force allow workers in the health sector, in particular nurses and midwives, to freely choose which organization will represent them for purposes of collective wage negotiations both at the level of the establishment and at sectoral level. The Committee expects that, should the bargaining rights be an exclusive prerogative of the most representative union at the bargaining level, the determination of its representative character will be made by virtue of objective and pre-established criteria.
4. 923. While further noting that the complainant denounces a discrepancy between the wording of Convention No. 98, which refers to collective agreements, and its Polish translation which mentions a more restrictive notion of collective labour agreements, the Committee considers that this is a matter that falls within the mandate of the Committee of Experts on the Application of Conventions and Recommendations and will not pursue the examination of this allegation.