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The Committee recalls that in its previous observation it noted that, according to section 69(4) of the Law on Civil Service of 18 December 1998, civil servants were not allowed to perform functions within trade unions. The Committee requested the Government to clarify the manner in which public employees in the civil service corps who do not have policy-making, managerial or confidential functions (Article 1(2) of the Convention) were guaranteed the right to establish and join organizations for the purpose of furthering and defending their interests and, in particular, to indicate whether section 69(4) of the Law on Civil Service prevented public employees from running for office in their organizations and, in this case, to specify which category of public employees may perform functions in the organizations in question.

The Committee takes note of the Government’s indication concerning the adoption of the Act of 21 November 2008 on Civil Service. The Committee further notes that article 78 of the Act provides for the obligations of civil servants, and notes, in particular, that article 78(6) establishes that only civil service corps members in senior positions in the civil service cannot perform functions within trade unions. The Committee notes the Government’s indication that, with respect to the other provisions of the Convention, civil service corps members are subject to universally binding provisions of labour law (article 9 of the Act on Civil Service). The Committee understands that all civil servants are granted the right to establish or join a trade union but access to trade union office is forbidden to those civil servants in senior positions in the civil service.

The Committee recalls that in its previous observation it further requested the Government to indicate: (1) the provisions which would afford to public employees and their organizations protection against acts of discrimination or interference in accordance with Articles 4 and 5 of the Convention; (2) the facilities granted to representatives of recognized public employees’ organizations in accordance with Article 6; (3) the measures taken or contemplated to encourage the development of machinery for negotiation of terms and conditions of employment between the public authorities and public employees’ organizations or of such other methods as will allow representatives of public employees to participate in the determination of these matters in accordance with Article 7; (4) whether impartial machinery such as mediation, conciliation and arbitration has been established for the settlement of disputes arising in connection with the determination of terms and conditions of employment of public employees (Article 8).

The Committee notes that according to the Government’s indications: (1) an intense social dialogue between the Chancellery of the Prime Minister and the representative civil servant trade unions has been taking place with the aim of creating socially acceptable legal regulations and solving the current problems in the civil service corps; (2) discussions are also held with other unions active in the sector to obtain a comprehensive picture of the needs and expectations of the civil servants corps; (3) by Resolution No. 34 of 16 February 2009, an ad hoc team for local government and civil service employees was appointed within the Tripartite Commission for Social and Economic Affairs. This team is composed of employees and employers’ organizations, as well as by national and local governments. Its task consists of finding and agreeing on solutions concerning local government employees and civil servants with respect to remuneration, guidelines on competence assessment, job evaluation, specific provisions of labour law and funds for their functioning. The Government indicates that so far four meetings of the team have taken place. The Committee takes due note of this information. The Committee requests the Government to indicate whether, within the framework of this ad hoc team for local government and civil service employees, it is possible to establish facilities for civil service trade union representatives or elected representatives. The Committee also requests the Government to indicate whether impartial machinery such as mediation, conciliation and arbitration has been established for the settlement of disputes arising in connection with the determination of terms and conditions of employment of public employees.

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The Committee takes note of the Government’s report as well as the text of the Law on Civil Service of 18 December 1998.

1. The Committee notes from the Government’s report that according to section 69(4) of the Law on Civil Service, civil servants are not allowed to perform functions within trade unions. The Committee requests the Government to clarify in its next report the manner in which public employees in the civil service corps who do not have policy-making, managerial or confidential functions (Article 1(2) of the Convention) are guaranteed the right to establish and join organizations for the purpose of furthering and defending their interests and, in particular, to indicate whether section 69(4) of the Law on Civil Service prevents public employees from running for office in their organizations and in this case, to specify which category of public employees may perform functions in the organizations in question.

2. The Committee requests the Government to indicate in its next report: (a) the provisions which would afford to public employees and their organizations protection against acts of discrimination or interference in accordance with Articles 4 and 5 of the Convention; (b) the facilities granted to representatives of recognized public employees’ organizations in accordance with Article 6; (c) the measures taken or contemplated to encourage the development of machinery for negotiation of terms and conditions of employment between the public authorities and public employees’ organizations or of such other methods as will allow representatives of public employees to participate in the determination of these matters in accordance with Article 7; (d) whether impartial machinery such as mediation, conciliation and arbitration has been established for the settlement of disputes arising in connection with the determination of terms and conditions of employment of public employees (Article 8).

The Committee trusts that the Government will provide full information on the above questions.

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The Committee takes note of the information provided by the Government in its report. It proposes to examine the Act of 18 December 1998 concerning the civil service once it has been translated into one of the ILO official languages.

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The Committee notes that the Government's report has not been received. It notes, however, the detailed observations made by the National Board of Polish Doctors' Trade Union (PDTU) in a communication dated 1 May 1997 concerning the non-observance of Articles 7, 8 and 9 of the Convention in respect of doctors employed in the public health service, as well as the Government's reply thereto in a communication dated 3 November 1997.

The PDTU contends that the representation criteria set out for trade unions in the Labour Code (article 241.17, paragraphs 1.1 and 2) are unfavourable for public sector doctors since they grant exclusive bargaining rights to unions covering several branches of activity irrespective of the category of workers they represent thereby making it impossible for a trade union representing uniquely doctors to conclude a collective agreement. Moreover, such so-called "representative" trade unions could block the conclusion of a collective agreement for doctors even if such an agreement were accepted by 100 per cent of the doctors in the country. The PDTU contends that this is really what happened in practice. Hence, in June 1995 the PDTU suggested negotiating an over-factory agreement, in line with the procedure provided for in the Labour Code, which had been accepted by all the doctors in the country. However, other trade unions raised objections and the draft was not negotiated.

In its communication of 3 November 1997, the Government states that the PDTU demands the conclusion of a collective agreement of a mono-occupational character. The Government points out, however, that such an initiative can only be effective if it has the support of other representative trade unions, which are most frequently organized on a branch basis or even inter-branch basis (as the Independent Self-Governing Trade Union "Solidarnosc"). These representative trade unions consider that the different nature of the medical profession, including from the wage standpoint, should only be taken into account within the framework of the general branch agreement. According to the Government their position is reinforced by the fear, also shared by the Minister of Health and Social Welfare, that if the collective agreement for doctors were the first to be negotiated, it would absorb most of the financial means granted by the annual Budgetary Law for the section "health protection". The Government acknowledges that article 241, paragraph 1, of the Labour Code (which is called into question by the PDTU) attributes the most representative character to supra-enterprise trade unions associating: (i) at least 500,000 employees; or (ii) at least 10 per cent of the total number of employees to whom the statute applies but not less than 5,000 employees; or (iii) the largest number of employees for whom the supra-enterprise agreement is to be concluded. Although the PDTU is also against article 241, paragraph 2, of the Labour Code which allows all representative organizations to participate in negotiations concerning collective agreements for doctors, as well as to block the conclusion of an eventual agreement, the Government points out that in a decision dated 11 December 1996, the Constitutional Court declared the provisions of article 241, paragraph 1, to be in conformity with the Constitution of the Republic of Poland. The Government recognizes that Convention No. 151 does not cover the PDTU because the latter is subject to the more advantageous provisions of Convention No. 98.

After having examined the observations of the PDTU and the Government's reply thereto, and taking account of the specific nature of the public service which allows for the possibility of providing for special modalities of collective bargaining, the Committee considers that the PDTU, as long as it remains the unique or most representative union covering doctors, should have the possibility of participating in someway determining their terms and conditions of employment, though not necessarily in the context of a specific collective agreement for doctors.

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The Committee takes note of the Government's report and the new legislation on trade unions and the settlement of collective labour disputes, which came into force in 1991.

It notes with satisfaction that the new Trade Union Act ensures better application of the Convention to persons employed in the state administration by removing the obligation on public employees to belong to organisations of public employees and by restricting the scope of the provisions excluding certain public employees with highly confidential duties or managerial functions from the right to organise.