Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 368, Junio 2013

1. 811. The complaint is contained in a communication from the National Commission of NSZZ “Solidarnosc” and the All-Polish Alliance of Trade Unions (OPZZ), dated 10 July 2012.
2. 812. The Government sent its observations in a communication dated 29 October 2012.
3. 813. 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 complainants’ allegations

1. 814. In their communication dated 10 July 2012, the complainants allege that, on 23 March 2012, the District Court in Warsaw, in closed session without the presence of the parties, declared the strike action conducted at LOT Aircraft Maintenance Services (LOT AMS) illegal, that this decision was made in violation of Convention No. 87 and led to the dismissal of ten trade union activists who organized the strike (Marcina Choluj, Miroslaw Jankowski, Michal Kniazewski, Jacek Mikulski from NSZZ “Solidarnosc”, and Robert Skalski, Grzegorz Grzybowski, Andrzej Tomczak, Andrzej Michel, Krzysztof Kaczorek, Pawel Sznajder from Aircraft Land Personnel Trade Union). The complainants indicate that, on 20 March 2012, the employer LOT AMS had applied to the civil court for determination that the announced and organized strike was illegal in the light of the common law, especially with the Act of 23 May 1991, on the settlement of collective labour disputes and for prohibiting the unions from organizing and conducting the strike.
2. 815. According to the complainants, the actions taken by the trade unions were legal in the light of the national laws: (i) on 6 October 2011, the unions announced the demand for an increase of remuneration by 2,000 Polish Zloty (PLN) and the employer refused to fulfil the demand in a letter dated 12 October 2011; (ii) on 26 October 2011, the National Labour Inspection registered the collective dispute; (iii) the parties followed the obligatory procedure of negotiations and mediation; (iv) on 21 February 2012, the parties signed the records of divergences as no agreement was reached; (v) on 27 January 2012, the unions organized a two-hour warning strike; and (vi) the strike was announced on 18 March 2012 at midnight, having the legally demanded support vote of at least 50 per cent of the workers (488 out of 836 workers took part in the ballot, 415 voted for the protest action, 62 against and 11 votes were invalid).

B. The Government’s reply

1. 816. In its communication dated 29 October 2012, the Government indicates that, on 28 November 2011, the Ministry of Labour and Social Policy received a request to indicate a mediator for conducting mediation proceedings in relation to the collective dispute between the Trade Union of Airport Ground Staff (Zwiazek Zawodowy Naziemnego Personelu Lotniczego – ZZNPL), the Mazovia Region Inter-Enterprise Committee of NSZZ “Solidarnosc” at PLL LOT SA (Komisja Miçdz.yzakladowa NSZZ “Solidarnosc” Region Mazowsze at PLL LOT SA) and the Management Board of LOT AMS Sp.z o.o. According to the records of divergences prepared pursuant to article 9 of the Act of 23 May 1991 on the settlement of collective labour disputes, the matter in dispute was the demand to raise the basic salary of all employees by the net amount of PLN2,000 as of 6 October 2011. The Government further indicates that a mediator from the list kept by the Minister of Labour and Social Policy was indicated to conduct mediation proceedings pursuant to article 11(2) of the aforementioned Act. No agreement being reached in the course of the mediation proceedings, the parties – pursuant to article 14 of the Act –prepared records of divergences in the presence of the mediator and with the indication of respective standpoints of the parties which constitutes an authorization to undertake a strike action.
2. 817. A strike organized by ZZNPL and NSZZ “Solidarnosc” began on 18 March 2012. On 20 March 2012, an attorney of LOT AMS filed a request at the District Court in Warsaw to secure the claims by prohibiting the ZZNPL and NSZZ “Solidarnosc” trade unions from organizing and conducting a strike at LOT AMS. In its decision of 23 March 2012, the District Court in Warsaw granted security to LOT AMS in the form of a prohibition against organizing and conducting the strike that began on 18 March 2012 and defined a 14-day time limit for filing a petition to determine that the strike was organized in breach of the provisions of the Act on the settlement of collective labour disputes. Within the time limit set out by the District Court in Warsaw, the attorney of LOT AMS filed a petition to determine whether the abovementioned strike was announced and organized in breach of the provisions of the Act on the settlement of collective labour disputes. The Government indicates that the date of the hearing in that case has not yet been set.
3. 818. The Government further indicates that the ZZNPL and the Inter-Enterprise Committee No. 205 of NSZZ, “Solidarnosc” filed complaints to the Court of Appeal against the decision of the District Court in Warsaw of 23 March 2012 to grant security in the form of a prohibition against organizing and conducting the strike. By way of its decision of 11 July 2012, the Court of Appeal in Warsaw revoked the challenged decision in relation to the Inter-Enterprise Committee No. 205 of NSZZ “Solidarnosc” due to the lack of that entity’s capacity to act as a party in civil cases and it rejected the petition of LOT AMS in relation to that entity; it also dismissed the petition of LOT AMS to grant security in relation to the ZZNPL in Warsaw.
4. 819. NSZZ “Solidarnosc” charged the challenged decision with violating the provisions of the procedural law (the Civil Proceedings Code), which consisted in, inter alia, assuming that the absence of security might hinder LOT AMS from attaining the objective of the proceedings to determine unlawfulness of the strike and in assuming that the petition that the entitled party intends to file, that is the petition to determine the illegality of the strike, is a civil case, as well as with violating the provisions of the substantive law by not applying article 59(3) of the Constitution of the Republic of Poland, which consisted in prohibiting the organization and conducting of the strike, despite the absence of the prerequisite infringement of the public good. On the other hand, the ZZNPL charged the challenged decision with violating the norms of the procedural law by way of, inter alia, unjustified assumption that the applicant had substantiated its entitlement to make claims despite the fact that neither legal theory nor jurisprudence have as yet worked out a view according to which the employer should be entitled to request the court to determine whether a strike organized at the employer’s establishment complies with the provisions of the Act on the settlement of collective labour disputes, and by unjustified assumption that the applicant had demonstrated the existence of its legal interest in the granting of security, which consisted in the fact that the absence of security would prevent, or seriously hinder, the performance of the ruling issued in the case or that it would prevent or seriously hinder the attainment of the objective of the proceedings.
5. 820. When revoking the challenged decision, the Court of Appeal pointed out that the Civil Proceedings Code stipulates two conditions for granting security, that is substantiation of the existence of a claim subject to security and substantiation of a legal interest in obtaining security. The Court of Appeal recognized that the collected evidence did not substantiate the legal interest in the establishing of a claim of LOT AMS – that is in determining whether the strike that began on 18 March 2012 violated the provisions of the common law and, particularly, the provisions of the Act on the settlement of collective labour disputes. The Court of Appeal decided that LOT AMS had an economic interest in claiming the security and not a legal one. Moreover, the Court of Appeal also found that the requested manner of securing the claim was also subject to reservations. The purpose of security in this case would be to normalize the rights and obligations of the parties to the proceedings for the period of their duration. As a manner of security, LOT AMS indicated the prohibiting of the obligated parties from organizing and conducting the strike at the establishment of the entitled party. However, article 59(3) of the Constitution grants trade unions the right to organize strikes within statutory limits. On the other hand, an act of law may establish a prohibition of strike actions on account of the public good in relation to specific categories of employees or in specific fields. The Court of Appeal observed that at the given stage of proceedings it was not possible to find, in an unambiguous manner, whether the reasons indicated by the employer the disproportion of the employee demands in relation to the potential losses of the entitled party caused by the strike, and the defective way of conducting the strike referendum – were factually accurate. First and foremost, the applicant failed to substantiate that the strike action could lead to the non-performance of the employer’s obligations and did not supply the number of employees who eventually took part in the strike that had begun. For that reason, at the current stage of the proceedings, and in the light of the reasons furnished by the employer, it was not possible to find in an unambiguous manner that the strike was illegal, even for the purposes of the proceedings to secure claims where the legislator does not require that a claim is demonstrated but only made plausible (substantiated).
6. 821. According to the Government, considering the current state of affairs, there is neither legal nor factual basis for a claim that Poland has violated ILO Convention No. 87. The State ensures the right to a fair trial from which it arises that rulings issued by independent courts can be subject to a review by courts of higher instance which makes it possible for quashing those court rulings which give grounds for their withdrawal from legal circulation. The Government further states that it is not possible to accept a complaint that is based on a ruling which, in effect of its verification in the course of appeal proceedings, has lost its legal validity. On the basis of a single situation in which the complainant exercised its right to a review by a court of higher instance – in effect of which the original ruling lost its legal validity – it is not possible to accuse the Judiciary Branch of infringing the freedom of association and their right to organize.

C. The Committee’s conclusions

1. 822. The Committee recalls that this case concerns allegations that a civil court (the District Court of Warsaw), in closed session, without the presence of the parties, declared the strike action conducted at LOT AMS illegal, and that this decision was made in violation of Convention No. 87 and led to the dismissal of ten trade union activists who organized the strike.
2. 823. The Committee notes that, according to the Government, after the filing of the complaint before the Committee, the complainants filed complaints to the Court of Appeal against the decision of the District Court in Warsaw of 23 March 2012. By way of its decision of 11 July 2012, the Court of Appeal in Warsaw revoked the challenged decision in relation to the Inter-Enterprise Committee No. 205 of NSZZ “Solidarnosc” due to the lack of that entity’s capacity to act as a party in civil cases and it rejected the petition of the company in relation to that entity; it also dismissed the petition of the company to grant security in relation to the ZZNPL. The Court of Appeal indicated that, at the current stage of the proceedings, and in the light of the reasons provided by the employer, it was not possible to find in an unambiguous manner, that the strike was illegal, even for the purposes of the proceedings to secure claims where the legislator does not require that a claim is demonstrated, but only made plausible (substantiated). Therefore, the Committee duly notes that the decision which gave rise to the complaint in this case has been overturned by the Court of Appeal of Warsaw.
3. 824. However, the Committee notes that, according to the complainants, following the decision of the District Court of Warsaw, the company dismissed ten trade union activists who organized the strike (Marcina Choluj, Miroslaw Jankowski, Michal Kniazewski, Jacek Mikulski from NSZZ “Solidarnosc” and Robert Skalski, Grzegorz Grzybowski, Andrzej Tomczak, Andrzej Michel, Krzysztof Kaczorek, Pawel Sznajder from Aircraft Land Personnel Trade Union). The Committee deeply regrets that the Government has not replied to this allegation, nor has it provided any information concerning the situation of the ten trade unionists dismissed. The Committee recalls that no one should be penalized for carrying out, or attempting to carry out, a legitimate strike. When trade unionists or union leaders are dismissed for having exercised the right to strike, it can only conclude that they have been punished for their trade union activities and have been discriminated against [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 660 and 662].
4. 825. The Committee observes from the Government’s reply that in its decision of 23 March 2012, the District Court of Warsaw had defined a 14-day time limit for filing a petition to determine that the strike was organized in breach of the provisions of the Act on the settlement of collective labour disputes and that the attorney of the company filed a petition within this time limit, but no date had yet been set for the hearing. The Committee requests the Government to keep it informed of the status of these proceedings and to provide a copy of the judgment once it is handed down. In the meantime, the Committee observes that ten trade union activists have been dismissed allegedly for organizing industrial action which was initially prohibited due to the employer’s request to secure its claims, but that this decision was subsequently overturned on appeal and, since then, there has yet to be a judgment on the legality of the strike. In these circumstances, and given the apparent delay in the court proceedings challenging the lawful nature of the industrial action (no hearing had been sent at the time of the Government’s reply of 29 October 2012), the Committee urges the Government to review immediately the situation of the dismissed workers and should it be found that their dismissal was indeed due to their organization of the industrial action, to take the appropriate measures for their reinstatement in their posts without delay pending the final determination by the courts. The Committee requests the Government to keep it informed of the steps taken in this regard.