Informe provisional - Informe núm. 197, Noviembre 1979

1. 534. The Committee has already examined this case, at its May 1979 Session, when it submitted interim conclusions in paragraphs 293 to 322 of its 194th Report. The Governing Body approved this report at its 210th Session (May-June 1979).
2. 535. 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. Previous examination of the case

1. 536. The allegations presented by the ICFTU refer firstly to various provisions of the Trade Unions Act of 1 July 1949, which were the subject of observations made by the Committee of Experts on the Application of Conventions and Recommendations in connection with 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. 87). The allegations also referred in detail to alleged 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.
2. 537. In this connection ICFTU quoted a statement of the KOR and the editorial Committee of the newspaper Robotnik, which contained the following passage:
3. ... Wladyslaw Sulecki, a miner at the Glivice mine, has been subjected to various forms of odious persecution. In May 1977 he was beaten up by the police in the presence of witnesses; in September 1977, the police refused to intervene when he was attacked by an unknown assailant. After W. Sulecki joined the editorial Committee of Robotnik, the harassment was stepped up. His superior was replaced by Marian Plonka, a man known for his appalling attitude towards the miners. Mr. Plonka continually assigned Sulecki to other duties, which considerably reduced his earnings ... Sulecki did not receive the bonus due to him, his locker at the mine was forced and Plonka compelled him to submit to a body search. The entire Sulecki family has been subjected to harassment. The local police refuse to intervene or help in any way whatsoever.
4. ...
5. The home of Kazimierz Switon, a television repairer in Katowice and an active member of the Human Rights and Civil Rights Movement, is watched day and night by the police and secret police. They photograph and question visitors to his home. His wife receives telephone calls every day insulting and threatening her ...
6. These unlawful activities have a clearly defined purpose: the secret police wishes to paralyse all activities in connection with workers' rights, and is trying to frighten the workers' leaders, physically and morally.
7. The ICFTU added that the KOR had further stated that on 28 May 1978 the police had forced their way into the home in Gdansk of Krzystop Wyszkowski, a member of the Founding Committee of the Free Trade Unions of the Baltic Coast, which had been formed just before May Day 1978. Ten persons were said to have been arrested, including K. Wyszkowski, Jósef Sreniowski and Blazej Muszkowski, of the KOR, and Edwin Myszk, a worker at the Gdansk shipyard. The first three started a hunger strike; 48 hours later, Blazej Duszkowski was sentenced by a local judge to two months' imprisonment "without any form of trial", for having purportedly hindered the police in the discharge of their duties; after their release, J. Sreniowski and K. Wyszkowski decided to continue their hunger strike out of solidarity with their comrade.
8. 538. In connection with the trade union legislation, the Government, after describing the role and the rights of trade unions in Poland, 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 under consideration with a view to bringing the relevant provisions formally into line with the provisions of Convention No. 87 it added that a major reform of this kind would take a certain amount of time, since it concerned the general activities of trade unions and their role in the economic and social life of the country.
9. 539. The Committee recalled that, as early as November 1956, when it examined Case No. 58, also relating to Poland, it had analysed the provisions of the Trade Unions Act of 1 July 1949 and had expressed the view that it would appear at first sight that only the Federation of Trade unions was entitled, at the national level, to represent the Polish trade union movement (section 9), to define jointly with the unions affiliated to in the functions, objects and sphere of action of the trade unions (section 3) and to confer legal personality on trade unions by entering them in the register (section 9). Thus, it added, within the meaning of this Act, it would not seem possible to constitute a trade union organisation without the consent of, or in a manner contrary to the provisions prescribed thereon by, the competent organs of the Polish Federation of Trade Unions. The Committee went on to refer to the Constitution and Rules of the Federation. It was provided therein that the Constitution and rules of each trade union should be based on those of the Federation. Consequently, pointed out the Committee, unions wishing to become registered with the Federation must accept the various basic principles enunciated in the Constitution and Rules of the Federation, including, in particular, the recognition of the guiding role of the United Polish Workers' Party. The Constitution of occupational associations would appear, therefore, to be subject to certain conditions of a political nature.
10. 540. The Committee had recalled, inter alia, that according to the provisions of Convention No. 87 workers, without distinction whatsoever, should have the right to establish organisations of their own choosing without previous authorisation, and that while in exercising this right workers must - like other persons or organised collectivities - respect the law of the land, the law of the land should not be such as to impair (nor so applied as to impair) these fundamental principles. Freedom of workers to constitute - and join - organisations of their own choosing could not be said to exist , unless such freedom was fully established and reflected in law and in fact.
11. 541. In the present case the Committee observed that in May 1979 the Committee of Experts on the Application of Conventions and Recommendations had commented on this point in connection with the application by Poland of Convention No. 87. The Committee of Experts had examined this problem, among others, at its March 1979 session, and had expressed its views in an observation in the following terms:
12. The Committee... must refer back to the... issue it raised earlier in connection with the Trade Unions Act of 1 July 1949 - namely the right of all workers, irrespective of the branch of activity they are in, to establish organisations of their own choosing without previous authorisation. In the Committee's opinion the Labour Code of 1974 - which several times (see in particular section 240, concerning collective agreements) mentions by name the Central Council of Trade Unions - likewise does not appear to leave open to workers the possibility, should they so wish, of forming trade union organisations outside the Central Council of Trade Unions, nor to offer any such organisation the guarantees provided for in the Convention.
13. ...
14. The Government states once again that work on the preparation of the new Trade Unions Act is continuing. The Committee trusts that this work will be completed in the very near future and that the provisions adopted will take into account the above comments and the observations made previously by the Committee concerning points which were not in conformity with the Convention.
15. 542. The Committee on Freedom of Association also noted in May 1979 the Government's statement to the effect that the legislative provisions of trade unions were being revised with a view to bringing these provisions formally into line with those of Convention No. 87. The Committee recalled that since 1973 the Government had been referring to its intention to modify its legislation in its reports supplied under article 22 of the ILO Constitution on the application of Convention No. 87. To enable it to reach its conclusions in full knowledge of the facts, the Committee considered it desirable to obtain additional information on any developments which might take place in this connection, particularly as concerned the text of the amendments provided for in the Act now being drafted in order that the Committee might be able to comment on them, and the date on which the Government expected the final text to be adopted and implemented.
16. 543. With regard to the measures taken, according to the allegation's, 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 area, the Government stated in general terms that these organisations were engaging in activities of a political rather than a trade union character. According to the complainant, however, the purpose for which these various organisations had been founded was to defend the interests of the workers in view of the alleged inefficacy of the country's trade unions, particularly on the occasion of the arrest, sentencing or dismissal of workers following strikes and demonstrations. The complainant had also supplied particulars as to the identity of the members of these organisations against whom reprisals were said to have been taken and the nature and date of the action taken against them. The Government had furnished no concrete information in answer to these allegations.
17. 544. The Committee recalled that Article 10 of Convention No. 87 contained a very broad definition of the term "organisation", namely "any organisation of workers or of employers for furthering and defending the interests of workers or of employers". The Committee added that according to available information it appeared that the organisation concerned pursued objectives which were included in Article 10. Moreover, the Committee considered that a workers' organisation ought to be considered as such even if it were not in a position to fulfil functions that were typically associated with trade unions, for example collective bargaining. In consequence, the Committee considered it necessary, to enable it to examine this aspect of the case in full knowledge of the facts, to have before in the Government's observations concerning the action said to have been taken against Messrs. K. Switon, W. Sulecki and the other persons named by the complainant, on the reasons for the arrest of Messrs. K. Wyszkowski, J. Sreniowski and E. Myszk and the sentencing of Mr. B. Muszkowski to two months' imprisonment, and on the present situation of these various persons.
18. 545. In these circumstances, and on the recommendation of the Committee, the Governing Body decided:
19. (a) as concerns the legislative provisions on trade unions:
20. (1) to note the Government's statement to the effect that these legislative provisions were being revised - as it had stated over many years - with a view to bringing them formally into line with those of Convention No. 87;
21. (2) to urge the Government to supply information on any developments which might take place in this connection, particularly with regard to the text of the amendments provided for in the Act now being prepared in order to enable the Committee to comment on them, and the date on which the Government expected the final text of this Act to be adopted and implemented;
22. (b) as concerns the allegations regarding the fate of a number of members of the Committees mentioned by the complainant, to draw the attention of the Government to the principles and considerations set forth in paragraphs 543 and 544, and to request the Government to forward its observations on the action allegedly taken against Messrs. K. Switon, W. Sulecki and the other persons named by the complainant, on the reasons for the arrest of Messrs. K. Wyszkovski, J. Sreniovski and E. Myszk and the sentencing of Mr. B. Muszkowski to two months' imprisonment, and on the present situation of these various persons.
23. B. Additional information communicated by the Government
24. 546. The Government sent additional information in a letter of 7 September 1979. It confirms that work on the amendment of the trade union legislation is continuing with a view to bringing the relevant provisions formally into line with the standards of Convention No. 87. It also confirms its willingness to communicate to the ILO information relating to any changes that may take place and to the amendments envisaged in the legislation on the activities of trade unions.
25. 547. The Government also states that the persons or "organisations" cited in paragraphs 319, 320 and 322 of the 194th Report of the Committee are not engaged in any trade union activities for the purpose of supporting or protecting the interests ,of the workers in the sense of Article 10 of Convention No. 87. It repeats that these persons or "organisations", while endeavouring to give their action the appearance of trade union activities, are in fact pursuing aims totally contrary to a legitimate conception of such activities. The Government stresses that no person and no trade union militant may be arrested or imprisoned by reason of trade union activities in conformity with the provisions of Convention No. 87. The persons mentioned in paragraph 322 of the 194th Report of the Committee were prosecuted for acts involving administrative or criminal liability, not for their trade union activities but for disturbances of the public order within the meaning of the Penal Code.
26. 548. Kazimierz Switon, says the Government, a radio mechanic by occupation, was the holder of a private permit for the supply of services in the radio and television sector. Following numerous complaints - some of which appeared in the press - of the poor quality of his work and his discourtesy to customers, his permit was withdrawn in December 1977. Despite a number of offers by the employment services, Mr. Switon has not resumed any occupational activity since that date. On a number of occasions he was found guilty of disturbing the public order and was given penal and administrative sentences, in particular:
27. - for contravening traffic safety regulations in July 1977 and January 1978;
28. - for disturbing the peace in November 1978;
29. - for assaults on and insulting behaviour towards officers of the civic militia in February 1979.
30. 549. Wladyslaw Sulecki, continues the Government, joined the civic militia in 1954. In 1956 he was dismissed for disciplinary reasons (for possessing himself of objects deposited by detainees). His subsequent behaviour became increasingly depraved; he underwent compulsory treatment for alcoholism in a specialised institution on 15 October 1975 and 15 September 1976. In his undertaking, the Glivice mine, his behaviour was highly undisciplined; he created disturbances, was absent from work without justification and on a number of occasions arrived at work in a state of intoxication. After he had threatened the mine foreman with a knife in the presence of other miners, Mr. Sulecki was arrested and placed at the disposal of the public prosecutor's department until investigations were completed. He presented an application for emigration and has left for the Federal Republic of Germany with his family.
31. 550. The Government further states that, although inquiries have been made, it has not been possible to identify a person of the name of Blazej Muszkowski. The person meant is probably Blazej Wyszkovski, domiciled in Gdansk. Blazej Wyszkovski, together with Jósef Sreniovski and Edwin Myszk, were arrested for disturbing the peace on 28 May 1978 by the civic militia on the territory of Gdansk. After making statements, Jósef Sreniovski and Edwin Myszk were released after 48 hours. Blazej Wyszkovski, however, was brought before the court (Offences Division of the President's Office of the City of Gdansk) on 30 May 1978 and sentenced to two months' imprisonment for acts of hooliganism committed in Gdansk Oliva on 28 May 1978, disturbing the peace and resisting the members of the civic militia in the performance of their duty. Blazej Wyszkovski is at present employed as site foreman at the transport material and equipment service of the Building and Repair Centre of the State Forestry Agency in Gdansk.
32. 551. Edwin Myszk, adds the Government, began his occupational activity at the Gdansk publishing house in 1971. He has changed his job eight times in the past eight years, working successively as a laboratory assistant at the Gdansk Construction Complex, as a cashier at the Power Supply Undertakings, as a salesman at the food store of the Malmor Undertaking in Gdansk, as an employee at the Gdansk Refineries and finally at the Lenin Shipyard, from which he was dismissed in 1978 for disciplinary reasons on the grounds of absenteeism. In 1973 he was sentenced to 2 1/2 years' imprisonment for embezzlement of state funds but served only part of his sentence because he was granted an amnesty. He is at present working at the Budimor Undertaking in Gdansk.
33. 552. Jósef Sreniovski, says the Government, completed his higher education in 1971. He carried on no occupation, but in 1974 began a doctorate thesis at the Institute of Philosophy and Sociology of the Polish Academy of Science, which he did not complete. On 18 November 1975 he started work at the cultural Centre of the Lódz hosiery undertaking, but left on 29 November 1975. On 2 December 1975 he was engaged as a cultural instructor by the Lokator Workers' Housing Co-operative. In January 1977 the Cooperative informed Jósef Sreniovski that he was to be assigned to an identical post in the same locality without loss of remuneration; the district labour court rejected his appeal against the employers' decision and recognised the legality of the latter. Jósef Sreniowski continued to work in his new post for some time, but on 22 May 1977 he took his paid annual leave and terminated his employment contract. Since then he has not resumed work.

C. Conclusions of the Committee

1. 553. In its additional observations and information the Government repeats that the various „organisations" mentioned by the complainant and the members of these organisations are not engaged in any trade union activity for the purpose of furthering and defending the interests of the workers within the meaning of Article 10 of Convention No. 87. However the Committee does not have sufficient information at its disposal to enable it to conclude that these organisations are not pursuing such aims or that they are engaged in activities outside the trade union sphere in the sense of the freedom of association Conventions. Reference is made in this connection to the statement by the rounding Committee of the Free Trade Unions of the Baltic Coast to the effect that "the task of the free trade unions is to organise the defence of the workers. The free trade unions hereby offer their aid and assistance to all workers, whatever their convictions or their qualifications". More generally, it should also be pointed out that certain national legislative provisions relating to trade unions would imply a more restrictive definition of workers' organisations than that given in Article 10 of Convention No. 87. The Committee refers in particular to the provisions which, in mentioning only the Polish Federation of Trade Unions, appear to exclude trade union organisations which are not affiliated to this Federation and which are not registered with it.
2. 554. As regards the alleged measures taken by the authorities against several members of the Committees mentioned in the allegations, the Government remarks that these persons were punished not for trade union activities but for offences involving penal or administrative liability; it gives details of the sentences. The Government specifies the grounds (theft, drunkenness, unjustified absence, threats of knifing, embezzlement of state funds) on which disciplinary, administrative or penal sanctions were imposed, sometimes several years ago, on the persons mentioned in the complaint. It nevertheless appears from the information supplied by the Government to the Committee that in recent cases certain persons have been arrested and prosecuted for disturbance of the peace, assault and insulting behaviour to officers of the civic militia. The Committee does not have precise information on the facts constituting the basis for these offences but notes that the persons concerned are linked with the above-mentioned Committees, which were constituted shortly beforehand outside the framework fixed by the current legislation. Shortly after the establishment of the Founding Committee of Free Trade Unions of the Baltic Coast, for example, the forces of order intervened at a meeting in the home of one of the members of the Committee and arrested a number of persons; one of these persons was held under arrest and sentenced to two months' imprisonment for resisting officers of the civic militia.
3. 555. The Committee has recalled on a number of occasions that the mere fact of carrying on a trade union activity or of holding a trade union office does not guarantee immunity from ordinary criminal law. Moreover, 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 are members. In the present case the Committee notes that the Government has not replied to the allegations that several active members of these organisations have been subjected to harassment. In any case, it is important that workers belonging to these organisations can do so in a climate of full security.
4. 556. The Government states that work on the amendment of the trade union legislation is continuing with a view to bringing the legislative provisions formally into line with the standards of Convention No. 87. The Committee recalls in this connection that since 1973 the Government has been referring in its reports supplied under article 22 of the ILO Constitution on the application of Convention No. 87 to its intention to modify its legislation. The Committee would have hoped, as stated in its 194th Report, that the Government would have supplied more detailed information on the envisaged amendments in order to enable the Committee to comment on them or on the date on which it contemplates the adoption and application of the Act now in preparation. It hopes that this information will shortly become available and that, as the Government itself has stated, the Government will maintain appropriate contact with the International Labour Office to ensure that this information is communicated rapidly.
5. 557. In the meantime, the Committee must recall that the Committee of Experts on the Application of Conventions and Recommendations has since 1959 been making observations on the Trade Unions Act of 1 July 1949. The Committee on Freedom of Association itself, as mentioned above, set forth certain considerations and principles as early as November 1956 after an examination of the Act. In view of the time which has elapsed since that date, it considers that, pending the adoption of the legislative amendments which have been announced, there is an urgent need for provisions to ensure that all organisations set up by workers for the promotion and defence of their occupational interests may carry on their activities freely. At the same time the Committee considers, in the light of the problems raised in this case and the repeated promises of the Government to bring its legislation in line with the provisions of Convention No. 87, 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.