Informe provisional - Informe núm. 194, Junio 1979

1. 293. The complaint of the International Confederation of Free Trade Unions (ICFTU) is contained in a letter dated 17 July 1978. The International Metalworkers' Federation (IMF) stated in a communication dated 24 July 1978 that it associated itself with this complaint. The Government furnished its observations in a communication dated 8 February 1979.
2. 294. Poland has ratified both 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 allegations

1. 295. The ICFTU claims that the Polish legislation has not been brought into harmony with the provisions of Convention No. 87, ratified by Poland in 1957. The complainant alleges in this connection that the Trade Unions Act of 1 July 1949 is still in force and that under the terms of this Act all trade unions must be registered with the Central Council of Trade Unions (which is the executive body and one of the two supreme authorities - the other being the Congress - of the Federation of Trade Unions of Poland). The Federation of Trade Unions, adds the complainant, is the principal body representing the trade union movement in Poland; every new trade union must join the Federation by registering in this way; any union failing to do so (unwilling or unable to do so) would be deprived of any legal existence as a trade union.
2. 296. The ICFTU goes on to quote several extracts from comments made by the Committee of Experts on the Application of Conventions and Recommendations with respect to the aforementioned Act of 1 July 1949. The complainant points out that the Committee of Experts has observed that section 9 of this Act empowers the Central Council of Trade Unions to grant legal personality to trade unions, which must of necessity be registered with it, and that the rules followed by the Council with respect to such registration have, both in fact and in law, the force of regulations governing the application of the Act in question. This Act, by prescribing a formality of a substantial nature which is indispensable to trade unions to enable them to exist as such and to further and defend the interests of their members, must be considered, in the opinion of the Committee of Experts, to have established a requirement of previous authorisation within the meaning of Article 2 of Convention No. 87.
3. 297. The Act of 1 July 1949 provides in section 5 that the body centrally representing the trade union movement in Poland shall be the Federation of Trade Unions, and delegates in section 9 to the Central Council of Trade Unions - which it designates by name as one of the supreme authorities of the Federation (section 6) - the power to register every new trade union or to refuse registration. The complainant recalls that the Committee of Experts has expressed the opinion that these provisions infringe the guarantees prescribed in Convention No. 87, according to which workers must have the right to establish organisations of their own choosing, and especially, if they so desire, a new organisation independent of all other existing organisations.
4. 298. The Committee of Experts has also pointed out, adds the complainant, that the Act of 1949 places every trade union under the supervision of a trade union federation designated by name to which it must necessarily adhere, and that its provisions may be regarded as constituting an interference by the State which is not compatible with Article 3 of Convention No. 87, since they result in a trade union being prohibited from drawing up its Constitution and rules, organising its administration and activities and formulating its programmes freely.
5. 299. The ICFTU recalls that these observations, made by the Committee of Experts in 1962, have been repeated year after year, and that the Government has been requested to bring its legislation into harmony with the Convention in order to ensure to all workers and their organisations the rights and guarantees accorded to them by this instrument; despite announcements by the Government to the effect that its trade union legislation is to be revised shortly, this revision has still not taken place. The ICFTU goes on to state that this infringement of Convention No. 87 has had adverse effects upon the conditions of life and employment of Polish workers, as evidenced by the outbursts of acute social dissatisfaction that have occurred on several occasions, and in particular in June 1956 (when the ICFTU lodged a complaint), in March 1968, in 1970 in the coastal area and in June 1976, when strikes broke out in numerous undertakings in the towns of Zran, Plock, Lódz, Szczecin, Gdynia, Olsztyn, Katowice, Bielsko, Sosnowiec, Wrocklaw, Gdansk, Elblag, Ksranik, Ursus, Radom, etc. According to the complainant, these strikes and demonstrations were followed by arrests and violence, particularly in Ursus and Radom, where many workers were arrested and thousands dismissed from their jobs. In September 1977, further strikes broke out in five mining districts in Silesia.
6. 300. The ICFTU adds that the workers arrested or dismissed could not look to the official trade unions for support; it was a "workers' defence Committee" (KOR) which, independently of the Federation of Trade Unions, undertook to defend them and provide assistance for their families. The members of this Committee, according to the complainant, are people who care about the defence of human rights and who have attempted to make up for the shortcomings of the official unions. In October 1977, this Committee became the "social self-defence Committee". With its help, Polish workers publish fairly regularly - albeit illegally, points out the complainant - a bulletin entitled "Robotnik". During the last few months of 1977 and in 1978, workers associated with this bulletin and with this Committee are alleged to have been arrested, interrogated, released, rearrested and harassed in a variety of ways.
7. 301. In this connection the ICFTU appends to its communication a statement issued by the "KOR" Committee and the editorial Committee of "Robotnik", and couched in the following terms:
8. During the past few months, workers on the editorial staff of the journal "Robotnik" and other persons associated with the Social Self-Defence Committee have been subjected to persecution by the police. On 15 November 1977, the police arrested Maximilian Mozdzynski and his wife in Grudziadz. Mozdzynski is one of the three signatories to the letter addressed to Edward Gierek written on 15 August on behalf of 43 workers dismissed from the Pomorska Odlewnin i Emaliernin Factory following strikes in June 1976. A few days after the arrest and release of the Mozdzynskis, the Grudziadz police rearrested Mr. Mozdzynski, together with Stanislaw Domagalski associated with the KOR - and his lodgers, Edmund Zadrozynski - associated with the KOR - and his daughter, as well as Renata and Broniskaw Nagiel (Mrs. Nagial is a signatory to the letter to E. Gierek). Domagalski's flat was searched by the police. While the Nagiels were in custody at the police station, a bugging device was installed in their flat. The detainees' fingerprints were taken, and during an interrogation which was not in conformity with the law, they were urged to work for the secret police and supply information on their contacts with the KOR.
9. In December 1977, B. Zadrozynski joined the editorial Committee of "Robotnik". On 2 January 1978, the police entered his flat with a search warrant made out in the name of his son Miroslaw, purportedly suspected of having taken part in a robbery. However, the searchers showed far more interest in the papers and books of Zadrozynski Senior. Father and son were taken to the police station, and during the interrogation the son was urged to give information about his father; he was questioned about his father's activities with the KOR and those of other workers in Grudziadz.
10. Wladyslaw Sulecki, a miner at the Glivice Mine, has been subjected to various forms of odious persecution. In May 1977 he was beaten up by the police in the presence of witnesses; in September 1977, the police refused to intervene when he was attacked by an unknown assailant. After W. Sulecki joined the editorial Committee of "Robotnik", the harassment was stepped up. His superior was replaced by Marian Plonka, a man known for his appalling attitude towards the miners. Mr. Plonka continually assigned Sulecki to other duties, which considerably reduced his earnings Sulecki did not receive the bonus due to him, his locker at the mine was forced and Plonka compelled him to submit to a body search. The local police refused to intervene or help in any way whatsoever.
11. In Radom, Leopold Gierek, a member of the editorial Committee of "Robotnik" and one of the founders of the Radom publishing enterprise, was arrested several times and attempts were made to interrogate him. When they entered his factory (ZREMB), the police warned his workmates not to associate with him. At the end of December 1977, his probation officer threatened to bring into effect the suspended prison sentence imposed on him for taking part in the strikes in June. In the factory where L. Gierek had been sentenced to work, records showing the number of hours he had worked disappeared ... As a result he was obliged to work overtime in order to complete his sentence.
12. On 13 December 1977 a bugging device was installed in the flat of Ewa Sobol and her parents. Ewa Sobol works for the publishers of "Robotnik" in Radom. We have the bugging devices in our possession.
13. The home of Kazimierz Switon, a television repairer in Katowice and an active member of the Human Rights and Civil Rights Movement, is watched day and night by the police and the secret police. They photograph and question visitors to his home. His wife receives telephone calls every day insulting and threatening her ...
14. These unlawful activities have a clearly defined purpose: the secret police wishes to paralyse all activities in connection with workers' rights, and is trying to frighten the workers' leaders, physically and morally.
15. 302. The ICFTU adds that the KOR has further stated that on 28 May 1978 the police forced their way into the home in Gdansk of Krzystop Wyszkowski, a member of the Founding Committee of the Baltic Coast Trade Unions. Ten persons are said to have been arrested, including K. Wyszkowski, Josef Sreniowski and Blazej Muszkowski of the KOR and Edwin Myszk, a worker at the Gdansk shipyard. The first three started a hunger strike; 48 hours later, Blazej Muszkowski was sentenced by a local judge to two months' imprisonment "without any form of trial", for having purportedly hindered the police in the discharge of their duties; after their release, J. Sreniowski and K. Wyszkowski decided to continue their hunger strike out of solidarity with their comrade.
16. 303. The Founding Committee of the Free Trade Unions of the Baltic Coast, explains the complainant, is composed of K. Wyszkowski, Andrzej Gwiazda and Antoni Sokolowski and was formed in Gdansk just before May Day 1978. It issued a statement (a translation of which is appended to the complaint), part of which reads as follows:
17. The trade union movement in Poland ceased to exist 30 years ago. The liquidation of the Polish Socialist Party, the Peasants' Party and other social movements in 1947, together with the "centralisation" of the trade unions, have led to the transformation of the latter into a monopolistic structure representing the State, i.e. the employer; the trade unions are no longer workers' organisations. The United Polish Workers' Party has turned the trade union movement into an extension of itself, thus creating a docile medium for the organised representation of all social strata.
18. ....
19. The task of the free trade unions is to organise the defence of the workers. The free trade unions hereby offer their aid and assistance to all workers, whatever their convictions or their qualifications.
20. ....
21. We are in sympathy with the aims of the journal "Robotnik", and it is in its columns and through our own publications that we intend to inform the public about our activities.
22. ....
23. We call on all workers - wage earners, salaried employees and professional workers - to found independent organisations to represent the workers. The road to the goal we have set ourselves may also pass through the works councils, to which it would be necessary to elect independent militants who would really represent the workers who had elected them and defend their interests. We hope that our initiative will serve as a point of departure for various independent campaigns in the social field ...
24. 304. The ICFTU goes on to state that a similar initiative was taken in February 1978 by other workers in the Katowice area; the members of the Katowice Committee are: Kazimierz Switon, television repairer and member of the Social Self-Defence Committee (KOR), Wladislaw Sulecki, miner and editor of "Robotnik", Tadeusz Kicki, who has a degree in law but is working as a welder, and Roman Kscluszek, electrician.
25. 305. In the opinion of the ICFTU it is clear from the events described above that the defence of the workers' interests is no longer assured by the official trade unions, which are imposed upon the workers since only unions registered with the Central Council of Trade Unions are allowed legally to exist. The complainant demands that all workers be guaranteed the right to establish and choose organisations which represent them and are capable of defending their interests. It also demands the release and reinstatement of the workers arrested and sentenced for having taken part in strikes and demonstrations and the cessation of the pestering of workers endeavouring to defend their own interests. Lastly, it requests that the matter be referred to the Fact-Finding and Conciliation Commission on Freedom of Association.
26. B. The Government's reply
27. 306. The Government begins by emphasising that Polish legislation ensures respect for the fundamental principles and standards embodied in Convention No. 87, and that in practice it guarantees the prerogatives of trade unions and the rights of all workers more fully than the Convention. The Polish Constitution guarantees citizens the right to organise, inter alia, in trade unions (article 84, paragraphs 1 and 2), and specifies that the latter are called upon to play a special social role in that they constitute an organisation of a general nature, participating in the drawing up and implementation of the country's economic and social development plans; the trade unions represent the interests and rights of the workers and they are a school for participation and civic activity in the edification of a socialist society (article 85). The Government adds that the Labour Code of 1974 confirms this Constitutional principle.
28. 307. Polish legislation, continues the Government, accords to trade unions and their organisations in undertakings substantial prerogatives in respect of the representation of the workers and the protection of their interests. One of the major functions of trade unions is supervision of the application of the labour law by works councils and trade union bodies and labour inspection from a social and occupational standpoint, which is the responsibility of the trade unions. The latter also participate in the framing of the provisions of labour and social security law by submitting proposals in this respect and by expressing their views on the draft provisions submitted by the organs of the State. Furthermore, they co-operate in the enforcement of the labour law. Trade unions carry on activities with a view to the avoidance of litigation in the field of industrial relations and arbitration in disputes between workers and management. Particular significance is attached in this connection to participation by trade unions in the conciliation bodies appointed to examine matters in dispute and grievances on the part of the workers (arbitration Committees, labour appeals Committees, supervisory councils attached to the Social Insurance Institution, labour and social security courts), and to representation of the workers during the proceedings of these bodies, including the Supreme Court. Supervision and intervention by trade unions are institutional in character; a special role is entrusted to works councils, which are bodies representing the entire staff of an establishment or institution; this shows that the trade unions exercise their rights fully.
29. 308. The Government goes on to state that trade unions representing the different occupational groups participate in the negotiation and conclusion of collective agreements with state economic units, organisations of co-operatives and federations of owners of non-nationalised undertakings. These agreements determine the workers' conditions of remuneration and the benefits payable as well as the conditions of work specific to the different branches of the economy and the different occupational groups. Collective agreements form an integral part of the labour law; in most cases they prescribe conditions which are more advantageous, in relation to the work performed, than those required under the general provisions. According to the Government, trade unions also engage on behalf of all occupational categories in a multitude of activities with a view to satisfying the material and cultural needs of the workers, inter alia by participating in the distribution of sums drawn from the social fund and the housing fund existing at every workplace. The trade unions also have a say in decisions on social and economic planning, national development, protection of the environment and all matters connected with the increasing and distribution of the national income and the improvement of the conditions of work and life of the workers and their families. The trade unions also play a substantial role in operating the system of workers' self-management in work establishments, whereby decisions are taken on matters of fundamental importance to the staff and to the community. The trade unions determine the trend to be taken by the activities of the workers' self-management bodies (at the national level and in the different branches of economic activity), and participate in the examination of disputes between the workers' self-management bodies and the management of work establishments and economic units. The Government emphasises the point that 96.6 per cent of the 11.6 million workers belong to trade union organisations, which exist in all undertakings, and membership of which is voluntary.
30. 309. The Government states that the freedom of action of trade unions is illustrated above all by the fact that they are not subject to the control of the public authorities and that they determine, within their own area of competence, their tasks, their aims and their fields of activity. The statutory provisions and the prevailing practice in Poland create conditions which allow the trade union movement full autonomy, as evidenced by the non-interference by the public authorities in their internal affairs, which are governed by the provisions of the rules adopted by the competent trade union organs; all trade union authorities are answerable to their electorate for their actions in the discharge of their functions under the rules.
31. 310. The only requirement to be fulfilled by a trade union in order to obtain legal personality, explains the Government, is the obligation to have its name entered in the register of trade unions kept by the Central Council of Trade Unions. This obligation, laid down in section 9 of the Trade Unions Act of 1 July 1949, has been the subject of observations by the Committee of Experts on the Application of Conventions and Recommendations; the Government recalls that in its periodical reports on the application of Convention No. 87 it has stated that the amendment of the legislative provisions on trade unions is now under consideration with a view to bringing the relevant provisions formally into line with the provisions of Convention No. 87. It has also pointed out that in principle legislative work of this kind takes a certain amount of time, especially when it involves a matter as important as the general activities of trade unions and their role in the economic and social life of the country.
32. 311. The Government observes that the information cited in the ICFTU's complaint relates to activities of a political nature which the suppliers of this information are endeavouring to pass off as trade union activities. According to the Government the statement by the "Committee" appended to the complaint attests to the fact that the grievances of its authors are mainly of a political nature and so are the aims they pursue. The Government has accordingly come to the conclusion that the organisation in question is not a trade union, and points out that the Committee on Freedom of Association has referred on a number of occasions to a resolution adopted by the International Labour Conference in 1952 concerning the independence of the trade union movement. The Committee has expressed the opinion, adds the Government, "that it is desirable that employers' and workers' organisations, on the one hand, should limit the field of their activities, without prejudice to the freedom of opinion of their members, to the occupational and trade union fields, and that the Government, on the other hand, should refrain from interfering in the operation of trade unions". Political activities, continues the Government, cannot be examined within the framework of the national and international standards respecting labour law. Moreover, all the rights of citizens of the People's Republic of Poland are guaranteed by the Constitution and by the relevant laws.

C. The Committee's conclusions

1. 312. The allegations made by the ICFTU refer first to various provisions of the Trade Unions Act of 1 July 1949, which have been the subject of comment by the Committee of Experts on the Application of Conventions and Recommendations in relation to the right of workers to establish organisations of their own choosing without previous authorisation and the right of these organisations to draw up their Constitutions and rules, to organise their administration and activities and to formulate their programmes (Articles 2 and 3 of Convention No. 87). The allegations also refer specifically to reprisals said to have been taken by the authorities against a number of members of the Social Self-Defence Committee (KOR) and of the Founding Committee of the Baltic Coast Trade Unions and a similar Committee in the Katowice area.
2. 313. As regards the legislation on trade unions, the Government (after describing the role and the rights of trade unions in Poland) recalls statements it has made in the reports on Convention No. 87 supplied under article 22 of the ILO Constitution, indicating that the amendment of the legislative provisions on trade unions is now under consideration with a view to bringing these provisions formally into line with those of Convention No. 87. It adds that such a far-reaching reform, being concerned with the general activities of trade unions and their special role in the economic and social life of the country, necessitates a certain amount of time.
3. 314. The Committee has already had occasion to examine the provisions of the Trade Unions Act of 1 July 1949 when Case No. 58 relating to Poland came before it for consideration at its November 1956 session. Citing sections 3 and 5 to 9 of this Act, the Committee expressed the view that it would appear at first sight that only the Federation of Trade Unions was entitled, at the national level, to represent the Polish trade union movement (section 5), to define jointly with the trade unions affiliated to in the functions, objects and sphere of action of the trade unions (section 3), and to confer legal personality on trade unions by entering them in the register (section 9). Thus, it added, within the meaning of this Act, it would not seem possible to constitute a trade union organisation without the consent of, or in a manner contrary to the provisions prescribed thereon by, the competent organs of the Polish Federation of Trade Unions.
4. 315. The Committee went on to refer to the Constitution and rules of the Federation of Trade Unions (adopted in 1954). It was provided therein that the Constitution and rules of each trade union should be based on those of the Federation. Consequently, pointed out the Committee, unions wishing to become registered with the Central Council of Trade Unions must accept the various basic principles enunciated in the Constitution and rules of the Federation, including, in particular, the recognition of the guiding role of the United Polish Workers' Party. The Constitution of occupational associations would appear, therefore, to be subject to certain conditions of a political nature.
5. 316. The Committee recalled, inter alia, that according to the provisions of Convention no. 87 workers, without distinction whatsoever, should have the right to establish organisations of their own choosing without previous authorisation, and that while in exercising this right workers must - like other persons or organised collectivities - respect the law of the land, the law of the land should not be such as to impair (nor so applied as to impair) these fundamental principles. Freedom of workers to constitute - and join - organisations of their own choosing could not be said to exist unless such freedom was fully established and respected in law and in fact.
6. 317. The Committee also observes that the Committee of Experts on the Application of Conventions and Recommendations has commented on this point in connection with the application by Poland of Convention No. 87. The Committee of Experts examined this problem among others, at its last session (March 1979), and expressed its views in an observation in the following terms:
7. The Committee... must refer back to the... issue it raised earlier in connection with Trade Unions Act of 1 July 1949 - namely the right of all workers, irrespective of the branch of activity they are in, to establish organisations of their own choosing without previous authorisation. In the Committee's opinion the Labour Code of 1974 - which several times (see in particular section 240, concerning collective agreements) mentions by name the Central Council of Trade Unions - likewise does not appear to leave open to workers the possibility, should they so wish, of forming trade union organisations outside the Central Council of Trade Unions, nor to offer any such organisations the guarantees provided for in the Convention.
8. ....
9. The Government states once again that work on the preparation of the new Trade Unions Act is continuing. The Committee trusts that this work will be completed in the very near future and that the provisions adopted will take into account the above comments and the observations made previously by the Committee concerning points which were not in conformity with the Convention.
10. 318. The Committee on Freedom of Association notes the Government's statement to the effect that the legislative provisions on trade unions are now being revised with a view to bringing these provisions formally into line with those of Convention No. 87. The Committee recalls that since 1973 the Government has been referring in its reports supplied under article 22 of the ILO Constitution on the application of Convention No. 87 to its intention to modify its legislation. To enable it to reach its conclusions in full knowledge of the facts, the Committee considers it desirable to obtain additional information on any developments which may take place in this connection, particularly as concerns the text of the amendments provided for in the Act now being drafted in order that the Committee may be able to comment on them and the date on which the Government expects the final text to be adopted and implemented.
11. 319. With regard to the reprisals taken, according to the allegations, by the authorities against a number of members of the Social Self-Defence Committee (KOR), the Founding Committee of the Baltic Coast Trade Unions and a similar Committee in the Katowice area, the Government states in general terms that these organisations are engaging in activities of a political rather than a trade union character. According to the complainant, however, the purpose for which these various organisations have been founded is to defend the interests of the workers in view of the alleged inefficacy of the country's trade unions, particularly on the occasion of the arrest, sentencing or dismissal of workers following strikes and demonstrations. The complainant has also supplied particulars as to the identity of the members of these organisations against whom reprisals are said to have been taken and the nature of the action taken against them. The Government has furnished no concrete information in answer to these allegations.
12. 320. The Committee recalls that Article 10 of Convention No. 87 contains a very broad definition of the term "organisation". This Article reads: "In this Convention the term organisation means any organisation of workers or of employers for furthering and defending the interests of workers or of employers." From the information in paragraph 303 it appears that the organisation concerned pursues objectives which are included in Article 10 quoted above. Moreover, the Committee considers that a workers' organisation ought to be considered as such even if it is not in a position to fulfil functions that are typically associated with trade unions, for example, collective bargaining.
13. 321. In consequence, the Committee considers it necessary, to enable it to examine this aspect of the case in full knowledge of the facts, to have before in the Government's observations on the allegations concerning the action said to have been taken against Mr. K. Switon, Mr. W. Sulecki and the other persons named by the complainant, on the reasons for the arrest of K. Wyszkowski, J. Sreniowski and E. Myszk and the sentencing of B. Muszkowski to two months' imprisonment, and on the present situation of these various persons.