Facts
Applied procedure
Justification
Comment
In July 2011 Polish trade union Solidarity filed a complaint against the government with the International Labour Organisation (ILO) concerning alleged infringement of workers' freedom of association. Solidarity alleges that the Act on Trade Unions 1991 does not comply with ILO Convention 87, "Freedom of Association and Protection of the Right to Organise Convention", as it wrongfully limits the freedom of association of workers. Solidarity is demanding the cancellation of the limitations imposed by the law on the right to establish and join trade unions. It argues that such right should be guaranteed not only to selected categories of worker (particularly those in an employment relationship), but to all workers without distinction. In particular, Solidarity asks that such right be guaranteed to self-employed persons, free professions, outworkers or workers employed under civil law contracts. In the union's opinion, such request is justified under Convention 87.
Under the ILO Constitution, there are two systems of supervision regarding the application of ILO's conventions by member states:
- the evaluation of the reports filed by member states; and
- representations of non-observance of conventions as set out in Articles 24 to 25, and complaints of non-observance under Article 26.
However, in regard to two ILO conventions (Convention 87 and Convention 98, "Right to Organise and Collective Bargaining"), special control procedures are in place. As the recent complaint concerns Convention 87, such special procedure applies.
In 1950 the ILO governing body, following negotiations with the United Nations Economic and Social Council, set up the Fact Finding and Conciliation Commission on Freedom of Association. The commission was established to investigate all complaints regarding infringements of trade unions' rights. Complaints should be filed first to the governing body and are then transferred to the commission. Complaints can be filed by member states' governments, trade unions and employer organisations. Solidarity used this mechanism to raise its complaint against the Polish government.
In 1951 the ILO governing body established the Committee on Freedom of Association. Over time, the committee has taken over the commission's areas of competence and is now the only body competent to investigate all complaints concerning trade unions' rights. After the investigation, it makes its recommendations to the governing body. Such recommendations are subsequently communicated to the member state and should be followed by the government. If the government fails to comply with the recommendations, the governing body is entitled to publish information regarding the infringements.
Pursuant to Article 2 of Convention 87:
"workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organization concerned, to join organizations of their own choosing without previous authorization."
The words 'without distinction whatsoever' mean that freedom of association should be guaranteed to all workers without discrimination based on, among other things, occupation, sex, colour, beliefs or nationality. It also means that this freedom concerns all categories of worker, particularly public servants, security agents, agricultural workers, plantation workers, temporary workers, workers in cooperatives, domestic workers, retired workers, dismissed workers, self-employed workers and liberal professions. These conclusions follow from the explanations included in the ILO's 1972 publication Freedom of association: Digest of decisions and principles of the Freedom of Association Committee of the Governing Body of the ILO.
The Polish Act on Trade Unions contains a limited list of categories of worker entitled to join trade unions. The list includes all workers in an employment relationship, members of agricultural production cooperatives, commercial agents (if they are not employers), retired workers, the unemployed and outworkers. The list of persons who can establish a trade union is even narrower).
The list of persons entitled to establish or join a trade union is linked to the Polish definition of an 'employee'. The Labour Code states that an 'employee' is a person who is in an employment relationship with an employer. Thus, large groups of persons who are 'workers' under the definition adopted by the ILO do not enjoy the right to establish and join trade unions under Polish law. This situation is being questioned by Solidarity.
In light of the ILO's rule that all workers shall have the right to establish and join trade unions, the Polish list of workers entitled to do so appears too narrow. Taking that into account, it is likely that Solidarity's complaint will be judged favourably by the ILO. If this is the case, the Polish government will receive a recommendation to change the national regulations. Although it should comply with such recommendation, the ILO governing body has no power to enforce its recommendation. If the Polish authorities fail to amend the regulation, the only available penalty is publication of information about the infringements.
The issue is of material practical significance as if the regulation is changed, the national unions will be able to solicit large groups of new members and their bargaining position and political influence will be strengthened.
For further information on this topic please contact Sławomir Paruch at Soltysiński Kawecki & Szlęzak by telephone (+48 22 608 7000), fax (+48 22 608 7070) or email ([email protected]).