Informe definitivo - Informe núm. 363, Marzo 2012

1. 1066. The National Commission of the NSZZ “Solidarnosc” submitted its complaint in a communication dated 28 July 2011.
2. 1067. The Government submitted its observations in a communication dated 30 September 2011.
3. 1068. Poland has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 1069. In its communication dated 28 July 2011, the complainant alleges that the Polish version of Convention No. 87 uses the term “employees” (pracownicy) as a translation of the English term “workers” or the French term “travailleurs” used in the text of the Convention. The complainant considers that the term “employee” may define any person performing paid work, however, in the legal language it has a narrower meaning referring only to workers as defined by the Labour Code. This, according to the complainant, may prompt a narrower interpretation of the term than the one used in the Convention. Referring to the principles of freedom of association, the complainant emphasizes that everybody performing paid work should have the right to establish and join trade unions of their choosing and that there must be no restrictions based on the existence of labour relations, which in practice, often do not exist, as in the case of agricultural workers, self-employed or freelancers.
2. 1070. The complainant indicates that the Labour Code defines the term “employee” as a person employed on the basis of a contract of employment, appointment, election, nomination or a cooperative contract of employment. Polish legislation, in defining the scope of the right to organize as set forth in the Act on Trade Unions of 1991 grants the right to establish and join trade unions exclusively to “workers” as defined by the Labour Code, members of agricultural cooperatives, persons performing work on the basis of agency contracts, homeworkers, pensioners, unemployed, functionaries and those engaged in the non combatant military service. The complainant therefore considers that by using a narrow definition of the term “employee” inspired by the Labour Code, the legislator denied freedom of association rights to persons employed on the basis of civil law contracts (contract for service), self-employed and other persons performing work but who are not employers. According to the complainant, the scope of the right to organize is therefore restricted only to selected categories of employees and the choice seems to be arbitral and does not reflect the reality of the Polish labour market where persons employed on the basis of civil law contracts and self-employed constitute a significant share of the workforce.
3. 1071. According to the complainant, the problem is even more visible in the case of self employed as according to the Polish law, such workers may not join employers’ organizations as they do not employ anyone and are not “employers” in the sense of the definition provided for in section 3 of the Labour Code. Pursuant to sections 1 and 2 of the Law on Employers’ Organizations of 1991, only subjects defined by the Labour Code may associate in employers’ organizations.
4. 1072. The complainant indicates, however, that according to the literature on the topic, self employed persons enjoy the right to organize as they can form other organizations and associations. The complainant nevertheless considers that working people who wish to participate actively in creation of better working and living conditions may do so only through activities of trade unions or employers’ organizations. These are legitimate bodies for representing and defending rights or interests and only those organizations are granted collective rights (collective bargaining and collective labour dispute). While the Act on Association of 1989 was adopted in order to fully guarantee constitutional rights stemming from the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights and to provide citizens with equal rights to fully participate in the public life, to express diverse opinions and to follow their individual interests, the form of association covered by this Act is different from those covered by Convention No. 87.
5. 1073. The complainant also alleges that section 2 of the Act on Trade Unions is in violation of Convention No. 87 as it makes a distinction between the rights of specific categories of workers. While the right to establish and join trade unions is granted to workers, members of agricultural cooperatives, persons employed on agency contracts and in non-combatant military service, only the right to join trade unions (without the right to establish them) is granted to homeworkers, pensioners and unemployed. State officers of uniform service may associate with restrictions as defined by specific legislation.
6. 1074. The complainant also alleges that the Act on Trade Unions is also in violation of Convention No. 135 under which the term “workers’ representative” refers not only to trade union members but also to other persons in accordance with the national law. The Act on Trade Unions, however, grants special employment protection only to selected persons. In this respect, the complainant indicates that according to the Act, an employer may not, without the consent of the company trade union board: (1) terminate the employment relationship either with or without notice with a member of the board of the company trade union referred by name in the board resolution or other employee who is a member of the company trade union entitled to represent the union before the employer or the authority, or a person who performs activities in the area of the labour law on behalf of the employer; and (2) unilaterally change working or pay conditions of the employee concerned, unless other is provided for in the regulations. This norm, however, includes only workers in the understanding of the Labour Code, i.e. employees. Moreover, home based work is regulated by a specific legislation (Decree of 31 December 1975 on Labour Rights of Home Workers) according to which, it is unlawful to terminate the employment relationship either with or without notice of a worker who is a member of a trade union board. Therefore, according to the complainant, the scope of the protection is different: while a worker who is not a member of a trade union board but is appointed by the union to represent the workers would enjoy protection against dismissal, a person performing home-based work would not.
7. 1075. The complainant also indicates that persons performing work on the basis of an agency (civil) contract, who have the right to organize pursuant to the Act on Trade Unions, if elected or nominated to a company trade union board, do not benefit from the same protection. Moreover, pursuant to the Act Implementing EU regulations on equal treatment of 3 December 2010, such persons have no right to compensation for suffered discrimination, because trade union membership is not included in the list of prohibited grounds of discrimination.

B. The Government’s reply

1. 1076. In its communication dated 30 September 2011, the Government indicates that freedom of association rights are set out in article 12 of the Polish Constitution, according to which “the Republic of Poland shall ensure freedom for the creation and functioning of trade unions, socio-occupational organizations of farmers, societies, citizens’ movements, other voluntary associations and foundations”. This shall be interpreted as a guarantee of freedom of association in all aspects of social life, including employment relations. This provision does not contain a closed catalogue of forms of associations that persons may organize in: various and different kinds of organizations can be created. In the Polish legal system, trade unions are not the only organizations functioning in the field of broadly understood employment relations. Polish legislation establishes favourable conditions for the creation of different kinds of organizations. The characteristics of such organizations are regulated by specific legislation, such as the 1989 Act on Trade Unions of Individual Farmers, 1989 Law on Associations and 1984 Act on Foundations. The Government adds that associations and foundations can apply for the status of a public benefit organization on the basis of the 2003 Act on Public Benefit and Volunteer Work. Furthermore, self employed persons or independent professionals can establish their own organizations in order to represent their interests. The Government lists the following examples of such organizations: the Polish Journalists Association; Polish Association of Truck Drivers; Association of Taxi Drivers; Association of Polish Artists; etc.
2. 1077. The Government further indicates that trade unions have a special role in the social and economic life and enjoy collective bargaining rights and the right to strike. Thus, the legislation reflects the traditional view, according to which, trade unions are employees’ organizations pursuing the aim of protecting employees’ interests with regard to employers by determining remuneration and working conditions by means of bargaining with employers.
3. 1078. The Government considers that the right to associate does not literally accrue to everyone, but rather “for the protection of his or her rights” (the Universal Declaration of Human Rights), “in order to protect his or her interest” (the International Covenant on Civil and Political Rights) and “in order to protect his or her economic and social interests” (European Social Charter). In the case of trade unions, not just any interest, but only interests connected with labour are the subject of the trade unions’ activities. This leads to a narrower understanding of the scope of persons who have the right to associate in trade unions. The Government refers to a decision of the European Commission on Human Rights, according to which, it is a characteristic for an occupational organization that it sustains the ethics and discipline within the profession and protects the interests of its members in non-disputatious issues; a trade union, on the other hand, represents its members in disputes with an employer and negotiates with an employer. Thus, according to the Government, there is a clear difference between trade unions and other organizations, since trade unions have the right to conclude collective agreements.
4. 1079. The Government indicates that section 1 of the Act on Trade Unions describes a trade union as an organization of people who work, therefore, not only employees as set out in section 2 of the Labour Code have the right to create trade unions and to become its members. In accordance with its sections 2 and 5, the Act on Trade Unions also applies to members of agricultural production cooperatives and persons who perform work on a basis of agency agreements if they are not employers, as well as persons delegated to companies in order to serve their military duty. As to persons who perform home-based work, they have the right to join trade unions functioning at a company with which they have concluded a contract for home-based work (section 2(2) of the Act on Trade Unions).
5. 1080. The Government further indicates that different rights regarding the possibility of creating trade unions result from different links joining individual groups of people with their place of work. In accordance with the national tradition, as well as the national legislation, the basic organizational structure of a trade union is a company trade union organization. This model clearly points both to employer–employee relations in the working process and to parties of industrial relations, solving positional conflicts resulting from opposing interests by means of collective bargaining. Such relations, according to the Government, cannot, however, be determined in the case of self-employed persons or independent professionals.

C. The Committee’s conclusions

1. 1081. The Committee notes that the complainant in this case alleges that, following an inaccurate translation of the word “worker” in the Polish version of Convention No. 87, the Polish labour legislation uses the term “pracownic” (“employee”), instead of “worker” as used in Convention No. 87 and considers, in particular, that the Labour Code, by limiting its scope of application to employees and providing for a narrow definition of the term “pracownic” restricts the right of many categories of workers to establish and join trade union organizations. The Committee notes that under section 2 of the Labour Code, a “pracownic” is a “person employed on the basis of a contract of employment, an appointment, an election, a nomination or a cooperative contract of employment”. Such definition is, according to the complainant, much narrower than the term “worker” used in Convention No. 87. According to the complainant, the term “pracownic” used in the Act on Trade Unions is to be read in the light of the definition provided for in the Labour Code. While this Act, in addition to employees, grants the right to organize to a larger category of workers (such as members of agricultural cooperatives, persons performing work on the basis of agency contracts, homeworkers, pensioners, unemployed, functionaries and those engaged in the non-combatant military service), persons employed on the basis of civil law contracts (contract for service), self-employed and other persons performing work but who are not employers do not enjoy the right to organize in the sense of Convention No. 87.
2. 1082. The Committee further notes the complainant’s allegation that the narrow definition of the term “pracownic” provided for in the Labour Code, may result in practice in lower protection granted to trade union representatives if they are not employees in the sense of the Labour Code. In this respect, the complainant indicates that the provisions of the Act on Trade Unions dealing with the protection of trade union representatives use the term “pracownic” in the sense of the Labour Code, i.e. “employee”, and thereby exclude all other categories of workers or provide for a different scope of protection. For instance, persons performing work on the basis of an agency (civil) contract, if elected or nominated to a company trade union board, do not benefit from the same protection as those employed and working at the company.
3. 1083. The Committee notes that the Government refers to article 12 of the Polish Constitution dealing generally with freedom of association and explains that various kinds of organizations can be freely established in Poland, including trade union organizations. According to the Government, the purpose of an organization is what qualifies a given organization. In the case of trade unions, such organizations deal with labour interests and represent employees in collective bargaining and collective labour disputes with employers. Hence, labour relationship is a key aspect. In the case of self-employed persons or independent professionals, there is no labour relation with an employer. While such persons cannot establish and join trade unions per se, they can establish their own organizations in order to represent their interests. The Committee notes that the Government lists examples of existing professional associations in Poland, which represent the interest of various categories of self-employed and independent professionals such as artists, journalists, taxi drivers, etc. The Committee also notes that in its 2010 report to the Committee of Experts on the Application of Conventions and Recommendations on the application of Convention No. 87, the Government indicated that the right to form and join trade unions is not granted for those individuals who have undertaken to provide employment on the basis of civil law contracts, since they cannot be considered employees under section 2 of the Labour Code.
4. 1084. The Committee recalls that the term “organization” used in Convention No. 87 means any organization of workers or of employers for furthering and defending the interests of workers or of employers (Article 10), such organizations should therefore have the possibility of engaging in collective negotiations in the interest of its members. The Committee notes, however, the Government’s indication that the model of labour relations in the country does not permit self-employed or independent professionals to enter into negotiations. The Committee recalls in this regard that, by virtue of the principles of freedom of association, all workers – with the sole exception of members of the armed forces and the police – should have the right to establish and join organizations of their own choosing. The criterion for determining the persons covered by that right, therefore, is not based on the existence of an employment relationship, which is often non-existent, for example in the case of agricultural workers, self-employed workers in general or those who practise liberal professions, who should nevertheless enjoy the right to organize [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 254]. The Committee therefore, like the Committee of Experts, requests the Government to take the necessary measures, including where necessary, the amendment of the legislation in order to ensure that all workers, without distinction whatsoever, including self-employed workers and those employed on the basis of civil law contracts, enjoy the right to establish and join organizations of their own choosing within the meaning of Convention No. 87. Further, recalling that Convention No. 98 protects all workers and their representatives against acts of anti-union discrimination and that the only possible exceptions from its scope of application are the police, armed forces and public servants engaged in the administration of the State, the Committee requests the Government to ensure that all workers and their representatives enjoy adequate protection against acts of anti-union discrimination regardless of whether they fall into the definition of employees under the Labour Code or not.
5. 1085. The Committee further notes the complainant’s allegation, not disputed by the Government, that the Act on Trade Unions makes a distinction between those who can establish and join trade unions and those who can only join trade unions. With regard to the latter case, the complainant refers, in particular, to the following categories of workers: home-based workers, unemployed and retired persons. The Committee stresses that home-based workers are not excluded from the application of Convention No. 87 and should therefore be governed by the guarantees it affords and have the right to establish and join occupational organizations. The Committee therefore requests the Government to amend the Act on Trade Unions in this respect. The Committee does not however find that granting retired workers and unemployed solely the right to join a trade union and participating in its functioning subject to the rules of the organization concerned is contrary to the principles of freedom of association.
6. 1086. The Committee requests the Government to provide information on the measures taken or envisaged to bring its legislation and practice into conformity with the freedom of association principles to the Committee of Experts on the Application of Conventions and Recommendations to which it refers the legislative aspects of this case.