Effect given to the recommendations of the committee and the Governing Body - Report No 344, March 2007

Effect given to the recommendations of the Committee and the Governing Body

1. 184. The Committee last examined this case, which concerns several freedom of association violations at the Hydrobudowa–6 SA company (decision to discontinue the deduction of trade union fees of the NSZZ “Solidarnosc” trade union in the enterprise and anti-union dismissals of its chairperson and a member of the executive committee in violation of the relevant legislation) and the serious delays in the proceedings concerning the reinstatement of the abovementioned trade union officials, at its March 2006 meeting [see 340th Report, paras 173–180]. The Committee urged the Government: (a) to intercede with the parties with a view to re-establishing the previously available check-off facility; (b) to keep it informed of the progress of the proceedings instituted by the dismissed trade union leaders Henryk Kwiatkowski and Sylwester Fastyn; (c) to intercede rapidly with the parties with a view to enabling Sylwester Fastyn to exercise his trade union activities without any interference by the employer; (d) to take all necessary measures as soon as possible with a view to establishing procedures which are prompt, impartial and considered as such by the parties concerned, in order to ensure that trade union officials and members have the right to an effective remedy by the competent national tribunals for acts of anti-union discrimination.
2. 185. In its communication dated 10 October 2006, the Government indicates, with regard to the proceedings initiated by Henryk Kwiatkowski, that the Warsaw–Praga District Court reinstated, by means of a sentence of 28 July 2005, the plaintiff to work at his previous post and adjudicated compensation for the time off work under the condition of his resuming work within seven days after the sentence had become valid. After examination of the defendant’s appeal, the Warsaw–Praga District Court reversed the appealed sentence by means of a judgement dated 26 January 2006 and dismissed the case. On 9 May 2006, the plaintiff lodged a revocation claim against the sentence of the appeals court. The files of the case will be submitted to the Supreme Court for examination.
3. 186. With regard to the proceedings initiated by Sylwester Fastyn, the Government indicates that they are pending before the court of first instance. The Government provides detailed information on the successive adjournments of the case and adds that, although the judicial proceedings have been lengthy, this situation is not caused by tardiness of the litigation bodies but from the need to hear vast amounts of evidence. At present, the dates of hearings are set at short intervals. The Government adds that it seemed that progress in the case would allow the trial to be terminated and a judgement to be handed down on a hearing set for 31 August 2006.
4. 187. With regard to the re-establishment of the check-off facility at the Hydrobudowa–6 SA company in favour of the NSZZ “Solidarnosc” trade union, the Government reiterates that the Warsaw–Praga North District Prosecutor found that there was no violation of the law and decided to discontinue the investigation. This decision was confirmed by the Warsaw–Praga District Court and the Warsaw Appellate Prosecutor. The present complaint was considered as a subsequent application for renewal of the discontinued proceedings. The files of the case have been examined once again in the District Public Prosecutor’s Office in Warsaw with particular attention paid to issues raised in the complaint. On the basis of this analysis, the Public Prosecutor in Warsaw acknowledged that the complaint did not contain any new circumstances, which would have provided grounds to resume the discontinued proceedings. The trade union was informed of the outcome by letter on 24 February 2005.
5. 188. With regard to the establishment of procedures ensuring an effective remedy against anti-union discrimination, the Government indicates that it maintains its earlier position that the legislation in force contains the instruments sufficiently protecting the interests of the trade union members, including trade union militants, inter alia against unjustified termination of employment and discrimination on account of trade union membership.
6. 189. With regard to the Committee’s recommendation to intercede with the parties with a view to re-establishing the previously available check-off facility, the Committee notes that, according to the Government, the files of the case were examined once again by the Warsaw District Public Prosecutor’s Office pursuant to the present complaint. The Public Prosecutor did not find any new circumstances which would justify a resumption of the discontinued proceedings and the trade union was informed of this decision by letter on 24 February 2005. The Committee takes note of this information. It also observes with regret, however, as it did in the previous examination of this case, that the Government has not indicated the exact grounds justifying the unilateral termination of this facility. The Committee requests the Government to provide information in this respect and to transmit the text of the decision of the Warsaw District Public Prosecutor’s Office.
7. 190. With regard to the Committee’s request to be kept informed of the progress of the proceedings instituted by the dismissed trade union leaders Henryk Kwiatkowski and Sylwester Fastyn, the Committee notes with regret from the Government’s report that these proceedings, which have been pending since 2002, have still not been concluded. The Committee notes, moreover, that whereas the court of first instance ordered the reinstatement of Henryk Kwiatkowski, the Court of Appeal reversed this judgement and the case is currently pending before the Supreme Court. With regard to Sylwester Fastyn, the case is still pending at the first instance due to the need, according to the Government, to hear vast amounts of evidence. Emphasizing once again that justice delayed is justice denied, the Committee firmly trusts that the proceedings concerning Henryk Kwiatkowski and Sylwester Fastyn will be concluded without further delay and requests the Government to keep it informed of the progress of the proceedings and to transmit the decision of the Appellate Court in the case of Henryk Kwiatkowski.
8. 191. With regard to the Committee’s request for the establishment of prompt procedures against anti-union discrimination, the Committee notes with regret that the Government merely reiterates its previous position according to which the legislation in force sufficiently protects the interests of trade union members and leaders against unjustified termination of employment and discrimination on account of trade union membership. The Committee once again recalls that the basic regulations that exist in the national legislation prohibiting acts of anti-union discrimination are inadequate when they are not accompanied by speedy procedures to ensure that effective protection against such acts is guaranteed. The Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 818 and 817]. The Committee observes that in the particular circumstances of this case, although the possibility to have recourse to penal procedures against those responsible for acts of anti-union discrimination would appear at first sight as a guarantee of protection, in the absence of appropriate institutional measures, the penal procedures might prove to be overly lengthy and complicated, precisely because of their penal nature; in such a case, the effective protection of workers is obstructed in practice. The Committee therefore once again requests the Government to give consideration in full consultation with the social partners concerned to the establishment of prompt and impartial procedures, in order to ensure that trade union officials and members have the right to an effective remedy by the competent national tribunals for acts of anti-union discrimination. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.