Informe definitivo - Informe núm. 334, Junio 2004

1. 700. The complaint of NSZZ Solidarnosc is contained in a communication dated 5 November 2003.
2. 701. The Government sent its observations in a communication dated 17 February 2004.
3. 702. 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. 703. In its communication of 5 November 2003, NSZZ Solidarnosc alleges that the Government has not fulfilled its obligations related to promotion of collective bargaining and voluntary negotiations, as it has not negotiated in good faith. NSZZ is the biggest trade union in the coalmining sector, where it represents about 44,000 out of 134,000 workers.
2. 704. The complainant NSZZ Solidarnosc indicates that in 1992, the Government had reached an agreement with it on the rules to be followed for the settlement of disputes with the public administration. Under that agreement, in case of a dispute, the parties were to start immediately the dispute settlement process and, in particular, should schedule the first explanatory meeting within 14 days from the date of a party’s demand.
3. 705. By the end of 2002, the Government announced its restructuring programme for the hard coalmining sector in years 2003-06, which involved resorting to anti-crisis legislation and the privatization of some of the coalmines, including the closing of at least five mines. In November 2002, the complainant filed a notice of dispute, as provided in the 1992 Agreement, and presented its demands to the Council of Ministers. In spite of this, the Government has neither adopted an official position nor conducted any talks about the dispute. No answers were given to several communications sent in 2003 to the Prime Minister (15 and 30 January 2003; 29 August 2003) and to the Under-Secretary of State, Ministry of Economy, Labour and Social Policy (10 April 2003) to open discussions.
4. 706. Simultaneously, from December 2002, the Government conducted negotiations with other trade unions in order to give the impression that it was conducting social consultations and was trying to reach agreement with trade unions. However, no agreement has been concluded concerning the social cost of restructuring the hard coalmining industry. The complainant is therefore unable to protect the interests of workers since the Government has ignored the notice of dispute filed by NSZZ and its proposals to enter into discussions, while holding talks with other trade unions. This constitutes a breach of the 1992 Agreement and creates an impression of discriminatory treatment, as compared with other trade unions.
5. 707. Article 4 of Convention No. 98, ratified by Poland, provides for promotion of collective bargaining in both the private sector and nationalized undertakings. The restructuring and privatization of a formerly state-owned sector relate primarily to conditions of employment, which fall under the scope of collective bargaining that should be conducted in an atmosphere of mutual good faith and trust. Employers, including governmental authorities, should recognize for collective bargaining purposes the organizations representative of workers employed by them.

B. The Government’s reply

1. 708. In its communication of 17 February 2004, the Government indicates that Article 4 of Convention No. 98 provides that collective bargaining is to lead to the conclusion of collective agreements between employers or employers’ organizations, on the one hand, and workers’ organizations, on the other hand. Under Act No. 55 of 13 May 1991 on the settlement of collective labour disputes, a collective labour dispute is defined as a dispute between employees (whose rights and interests are represented by a trade union) and an employer or employers; such dispute may concern the conditions of work, pay and social benefits, and trade union rights and freedoms.
2. 709. Therefore, the question of the restructuring of the coalmining industry, and the Government’s 2003-06 programme which includes privatization plans for selected mines, does not fall within the scope of collective disputes, either in the meaning of Convention No. 98 or national legislation. The subject matters of the dispute, as expressed in NSZZ letter of 19 November 2002 to the Prime Minister were: lack of economic solutions for the functioning of the hard coalmining sector; lack of solutions to prevent the bankruptcy of hard coalmines; and guarantees for the continued application of collective agreements.
3. 710. Secondly, the governmental administration is not the employer in this case, nor can it be deemed a sui generis organization of employers, even where the legislative or executive activities of such agencies are directly linked with the activity of a given sector. It is thus impossible under Polish law to enter into a collective dispute with the Government.
4. 711. The 1992 Agreement invoked by the complainants cannot constitute a basis for a dispute with the Government since article 2.1 of the agreement provides that “subjects of dispute are limited to questions falling within the competencies of trade unions, unless the rules and procedures in such cases have been defined by provisions in the law”. Since 2001, the goals which were to be served by the agreement have been addressed by the Act of 6 July 2001 on the Tripartite Commission for Social and Economic Affairs and on Voivodship Commissions for Social Dialogue, jointly with the Rules of Order of the Commission. Under article 1.1 of this Act, the Commission constitutes the appropriate forum for social dialogue between workers and employers; its objective is to shape and maintain social dialogue and its terms of reference include the holding of social dialogue on questions of pay and benefits, and on other social or economic issues. Article 2.1 of the Act provides that each party may bring up before the Commission a matter of major social or economic importance when it considers that the solution of that issue is vital to the preservation of social peace. In such cases, the procedure is governed by article 20 of the rules: upon receiving notification, the Chairman must immediately convene a meeting of the Commission, which may review the case during that same meeting or refer it to a special team. That team must proceed to work immediately; it must be guided by the objective of assessing the economic and financial feasibility of implementation of requested actions, evaluating their social and economic consequences, and formulating a position. The Commission then adopts a resolution; if it cannot come to an agreement, it must present the positions of the parties.
5. 712. As a representative workers’ organization, NSZZ is a member of the Commission, which is the appropriate forum for disputes arising out of the problems of the hard coalmining sector, including restructuring, but it did not bring the issue before the Commission in 2002.
6. 713. Social dialogue regarding the hard coalmining sector is conducted within the Tripartite Team for Social Welfare of Miners, set up in 1992 and independent from the Tripartite Commission. That team follows certain rules of procedure, under which it includes 12 national trade unions of the mining sector, including NSZZ Solidarnosc Hard Coalmining National Section and the National Secretariat of Mines and Energy Workers’ Union ("Solidarnosc 80"). In 2002-03, the team held a total of 19 meetings devoted to the problems of the sector, namely: restructuring of hard coalmining, including the privatization of some mines; legal and organizational changes of the sector; financial situation and debt relief of mining companies; collective agreements; employees’ claims; restructuring employment and establishing safety nets; benefits for employees and former employees of liquidated undertakings; cost of coal production, transport, import and export.
7. 714. The Team discussed the 2003-06 programme adopted in November 2002 by the Council of Ministers, criticized it and requested that it be amended; as a result, an agreement was signed on 11 December 2002, concerning mine closures and the rehiring of employees of the closed mines, as well as the continued application of existing collective agreements. Solidarnosc 80 and the Kontra trade unions of Gliwice and Katowice refused to sign the agreement. On 28 January 2003, the Council of Ministers accepted the amendments to the restructuring programme reflecting the December agreement.
8. 715. Taking into consideration the fact that not all parties had signed the agreement, the rules of conduct for social dialogue were changed with a view to maintaining social peace. As a result, outside the framework of the tripartite team meetings, separate meetings were held with the signatories of the agreement on the methods of implementation of the programme, and with the NSZZ Solidarnosc Hard Coalmining National Section (on 7 and 12 November 2003). In accordance with the proposals of NSZZ, the discussions covered: the possibility of reducing external burdens, including tax, VAT and transport costs; external factors and their impact on the implementation of the programme; the continued application of collective agreements; the problem of miners’ pensions; the rationale for privatization of mining enterprises; and the situation of the mining sector following Poland’s accession to the EU.
9. 716. According to the Government, the complainant’s allegations of discrimination are unfounded because NSZZ Solidarnosc took part in the discussions concerning the implementation of the 2003-06 programme, although it refused to sign it. In spite of this, the Government continued the dialogue with the complainant on the question of restructuring, as shown by the list of meetings above. The Tripartite Commission took up the question of coalmines restructuring at a meeting on 17 June 2003, which was attended by, among others, the Chairman of NSZZ Solidarnosc National Commission and Chairman of Solidarnosc Hard Coalmining National Section.
10. 717. On 28 November 2003, the Parliament adopted the Hard Coalmining Restructuring Act, which provides safety nets for employees and make it possible to restructure employment in the sector. Representatives of trade unions active in the mining sector took part in the legislative process, including at the drafting stage, in accordance with article 19 of Act No. 79 of 23 May on Trade Unions, as well as during the examination by Parliament. Many proposals of these representatives have been incorporated in the text of the Act. The Government considers that the complainant’s allegations are unfounded. The question of restructuring of the hard coalmining sector has been and continues to be the subject of discussions and dialogue with social partners in the Tripartite Team for Social Welfare of Miners, in the Tripartite Commission for Social and Economic Affairs, and outside of these bodies. According to the Government, initiating now separate dialogue on this subject with the complainant would mean discrimination against the other parties of the Tripartite Team for Social Welfare of Miners and of the Tripartite Commission, and would violate the principles of social dialogue. The question of a multi-stream restructuring programme could not have become a subject matter of collective dispute with the Government due to the irreceivability of such a negotiation subject and also because the Government, not being an employer, could not hold such negotiations. Given the provisions of the Act on the Tripartite Commission for Social and Economic Affairs, it was not possible for NSZZ Solidarnosc to institute in November 2002 (at a time where the Tripartite Commission was already established and operating) a dispute with the Government under the terms of the 1992 Agreement. NSZZ Solidarnosc took part in the talks within the Tripartite Team for Social Welfare of Miners and was also involved in discussions in other forums.

C. The Committee’s conclusions

1. 718. The Committee notes that the complainant in this case alleges that the Government has not conducted negotiations in good faith, ignored the notice of dispute it served in accordance with a 1992 Agreement on the settlement of disputes, and ignored its requests to open discussions on the social consequences of the restructuring of the coalmining sector, thereby contravening Article 4 of Convention No. 98, ratified by Poland. The Government submits for its part that, since 2001, the 1992 Agreement has been superseded by the Act on the Tripartite Commission for Social and Economic Affairs and on the Voivodship Commissions for Social Dialogue, and that appropriate consultations and negotiations were held with social partners in that forum and within the Tripartite Team for Social Welfare of Miners, where the complainant organization participated.
2. 719. The Committee emphasizes at the outset that this complaint is filed in the context of a major restructuring of a whole industrial sector, involving privatization and the possible closure of a number of undertakings. The Committee has already underlined the importance it attaches to consultations between governments and trade unions to discuss the consequences of restructuring programmes on the employment and working conditions of employees [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 937]. It has pointed out however that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions [Digest, op. cit., para. 935].
3. 720. Based on the evidence adduced in the present case, the Committee cannot conclude that there have been such acts of discrimination or interference against NSZZ Solidarnosc and its members. In fact, there were lengthy and in-depth consultations with trade unions, including the complainant, on all the issues affecting the workers concerned; these discussions eventually led to an agreement being signed (although not by the complainant) in December 2002 incorporating amendments requested by trade unions to the 2003-06 Restructuring Programme and, in November 2003, to the adoption of the Hard Coalmining Restructuring Act, a process in which trade union representatives took part at all stages. The Committee further notes that additional discussions on all major issues were pursued separately with those organizations that had not signed the December 2002 Agreement. In the absence of evidence of discrimination and interference against the complainant organization, the Committee is bound to conclude that this case does not call for further examination.