Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 337, Junio 2005

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

1. 125. The case concerns numerous acts of anti-union intimidation and discrimination including dismissals, by the management of two companies (Hetman Limited and SIPMA S.A.) as well as partiality by the Public Prosecutor’s Office, lengthy proceedings and non-execution of judicial decisions. During its last examination of the case, the Committee urged the Government to reiterate and intensify its efforts, under the auspices of the tripartite Regional Social Dialogue Commission, to bring the parties back to the bargaining table and resume social dialogue, and ensure that the principles of freedom of association and collective bargaining are applied, particularly as regards recognition of unions and effective protection against acts of anti-union discrimination and interference [see 333rd Report, approved by the Governing Body at its 289th Session (March 2004), paras. 878-919].
2. 126. In a communication dated 2 November 2004 the complainant union NSZZ “Solidarnosc” provided further information with regard to the dispute in the SIPMA S.A. enterprise. The complainant alleged that the employer had tried to avoid cooperation with the enterprise-level trade union ever since its authorities were elected in February 2002. Thus, on 22 November 2002, the employer brought a civil lawsuit before the Lublin District Court alleging that the trade union lacked legal personality as the registration procedure in the National Court Register had not been completed due to the union’s inadvertence. In reply to this, the complainant stated that according to the legislation in force, the enterprise branches of NSZZ “Solidarnosc” were subject to registration in the regional sections of NSZZ “Solidarnosc” and thereby had acquired legal personality. Thus, the enterprise-level trade union in SIPMA S.A. had already been registered in conformity with article 14 of the Trade Union Act of 23 May 1991 and the case law of the Supreme Court dating from 1993. This practice had also been confirmed by the Ministry of Justice in a letter to the president of NSZZ “Solidarnosc” dating from 2003.
3. 127. According to the complainant, there was no doubt that the employer was under an obligation to cooperate with the enterprise-level trade union. However, the proceedings concerning the existence of this obligation had been pending since 22 November 2002 and no first hearing had been organized. Four different courts had been referring the case to one another, considering themselves as not having competence in the matter. In these conditions, it was impossible to impose on the employer an obligation to cooperate with the trade union. An excessive delay in court proceedings was in itself an infringement of the right to appropriate protection against discrimination and constituted a violation of freedom of association principles and Conventions.
4. 128. The complainant further stated that the Lublin District Labour Court suspended the proceedings concerning the dismissal of Zenon Mazus, former leader of the enterprise-level trade union in SIPMA S.A., until the issuing of the Court’s decision in the abovementioned proceedings concerning the recognition of the employer’s obligation to cooperate with the trade union. The proceedings concerning Zenon Mazus had therefore been pending since 8 July 2002.
5. 129. With regard to the criminal charges filed against 19 senior managers of SIPMA S.A. for impeding trade union activities and violating workers’ rights on 14 October 2003, the complainant stated that there had been no action on the side of the courts, while the case was transferred to the Kielce District by the Public Prosecutor, because of the lack of action on the side of the Public Prosecutor in the Lublin District.
6. 130. The complainant finally stated that the result of the failure to secure a fair trial on the above violations of freedom of association constituted a denial of justice, made it impossible to oppose the activities of the employer aimed at eliminating the trade union from the enterprise, and brought about a decline in trade union affiliation. In 2003, the number of trade union members fell below nine, and the NSZZ “Solidarnosc” section in the region of Lublin undertook activities aiming at counteracting the dissolution of the trade union at the SIPMA S.A. enterprise. More specifically, it was transformed into an inter-enterprise-level trade union, absorbing the remaining members of the trade union in the SIPMA S.A. enterprise. However, the employer continued to evade cooperation with the trade union. Thus, according to the complainant, the recommendations of the Committee had not been implemented and the situation called for further measures.
7. 131. In a communication dated 24 February 2005, the Government stated that the 1st Civil Department of the Lublin District Court initiated on 3 December 2002 the examination of the case filed by SIPMA S.A. against the enterprise-level trade union concerning the recognition of the employer’s duty to cooperate with the trade union. The case was then transferred for review to the 7th Labour Department of the District Court, which transferred it back to the Labour Department of the Lublin District Court by means of its decision of 4 February 2004. After an appeal filed by the plaintiff, the case was examined by the Lublin Court of Appeal, which acknowledged, by means of its ruling dated 31 March 2004, that the 1st Civil Department of the Lublin District Court was the body competent to hear this case as it did not concern the employment relationship and thus was not subject to review by a labour court. The first hearing before the competent court was held on 8 June 2004, but was adjourned as the plaintiff had to assume a standpoint with regard to the alleged loss, by the defendant, of its capacity to be a party in civil lawsuits. As declared by both parties to the dispute, the NSZZ “Solidarnosc” trade union operating in SIPMA S.A. had ceased to exist as of 5 April 2004, after it was removed from the register of NSZZ “Solidarnosc” trade union organizations. The removal took place when the NSZZ “Solidarnosc” Inter-Enterprise Organization of the Middle East Region was established and the members of the trade union at the SIPMA S.A. enterprise joined the newly established entity. This was considered by the defendant to be a determinant factor with respect to the union’s existence and its capacity to take part in the proceedings.
8. 132. According to the Government, the fact that the capacity to be a party in a civil lawsuit no longer existed was not disputed by the parties. Thus, upon obtaining the position of the plaintiff, the 1st Civil Department of the Lublin District Court decided on 22 November 2004 to suspend the proceedings due to the fact that a party to the case had lost its capacity to participate in the proceedings. Nevertheless, actions were taken ex officio to proceed with the case. The judge ordered that certified copies of documents confirming the establishment and registration of the NSZZ “Solidarnosc” Inter-Enterprise Organization of the Middle East Region be submitted. Such information would enable the court to determine the plaintiff’s capacity to be a party in civil cases, which was a prerequisite for continuing the proceedings. The Government concluded that although the duration of the proceedings was extended due to the referral of the case to various courts, it was necessary to clarify the issue in order to avoid a future action to overturn the court’s ruling.
9. 133. With regard to Zenon Mazus, the Government stated that he filed a suit for recognition of termination of his employment contract as ineffective. The examination of the suit commenced on 2 July 2002 at the 7th Labour Department of the Lublin District Court. Six hearings had taken place so far. Although the first of them was scheduled for 1 July 2003, the dates of subsequent hearings were fixed regularly, with much shorter intervals and the adjournments of the hearings were caused by new motions as to evidence (in particular witness hearings) filed by both parties. During hearings held on 16 December 2003, 12 February 2004 and 15 April 2004 the Court interviewed the witnesses. The last hearing was adjourned upon the application of the plaintiff, in order to assume a standpoint with regard to the defendant’s position and to file potential motions as to evidence. At the next hearing held on 27 May 2004, the Court summoned a member of the defendant company’s Management Board. Due to his justified absence, however, the Court rescheduled the hearing once again for 9 September 2004. On that date the proceedings were suspended by the Court upon the defendant’s application. The District Court decided that examination of the employee’s case depended on the result of a parallel civil lawsuit in progress before the Lublin District Court. The court of second instance did not share that opinion, however, and having examined the objection raised by the plaintiff, decided on 8 November 2004, to quash the decision on suspending the proceedings. The next hearing had been scheduled for 11 January 2005.
10. 134. With regard to the penal charges brought against 19 senior managers of SIPMA S.A. accused of impeding trade union activity and violating workers’ rights, the Government stated that upon delivering certified copies of the indictment, 11 of the accused filed lengthy procedural writs with the court. Additionally, one of them filed a motion for the case to be returned to the Prosecutor’s Office. This application was rejected on 13 November 2003 and further rejected on 25 November 2003 and 29 December 2003 by the Lublin District Court. After this the judge in charge of the file was replaced on 19 May 2004. The new judge was given three months to become acquainted with the material (42 files) and a new hearing was scheduled for 27 October. The proceedings were not initiated however, as one of the accused (Jan Pradziuch) failed to show up. His absence was justified due to a medical sick leave. Thus, the court adjourned the case and admitted evidence (an opinion issued by the Forensic Medicine Department of the Lublin Medical Academy) on whether the accused could participate in the hearings. Five of the accused filed motions for the case file to be returned to the Prosecutor’s Office on grounds of the case’s subject matter. The said motions were not examined as planned on 15 November 2004, because the case file had not been returned from the Medical Academy. The next meeting was scheduled for 8 December 2004. The large number of accused persons, the bulky evidence material and a number of formal or procedural motions definitely contributed to the fact that the proceedings were lengthy. However, these were objective obstacles over which the court had no influence.
11. 135. The Government finally stated that in order to intensify the Court’s efforts and to undertake action aimed at completing the aforementioned proceedings promptly, the abovementioned cases would remain in the area of interest of the Common Courts Department in the Ministry of Justice. They had also been covered by the administrative supervision of the chairpersons of the respective courts.
12. 136. The Committee notes from the latest communications of the complainant and the Government that no steps appear to have been taken under the auspices of the Regional Social Dialogue Commission to bring the parties back to the bargaining table as requested by the Committee in its previous recommendations. On the contrary, the climate of bitter industrial relations characterized by permanent conflict and the refusal of individual employers to recognize a workers’ organization and enter into good-faith bargaining with it, observed by the Committee during the last examination of this case, seems to persist [see 333rd Report, para. 916]. The Committee further notes with regret that the NSZZ “Solidarnosc” trade union in the SIPMA S.A. enterprise has ceased to exist and had to be amalgamated with the NSZZ “Solidarnosc” Inter-Enterprise Organization of the Middle East Region so as to maintain the representation of the few members which remained in the enterprise. The Committee recalls that since inadequate safeguards against acts of anti-union discrimination in particular against dismissals, may lead to the actual disappearance of trade unions composed only of workers in an undertaking, additional measures should be taken to ensure fuller protection for leaders of all organizations, and delegates and members of trade unions, against any discriminatory acts [Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 700].
13. 137. With regard to the need to ensure effective protection for trade union leaders against acts of anti-union discrimination and interference, which was part of its previous recommendations, the Committee notes with regret from the communications of the complainant and the Government, that the judicial proceedings initiated by Zenon Mazus, leader of the NSZZ “Solidarnosc” trade union in the SIPMA S.A. enterprise, in order to render his dismissal ineffective, have been pending since 2 July 2002, that is, for almost three years now. The Committee observes in particular that the first hearing of this case was fixed 12 months after the filing of the complaint and that subsequently, the proceedings were suspended for several months (between 9 September and 11 January 2005) as a result of a parallel lawsuit filed on 3 December 2002 by the employer. With regard to the latter lawsuit, the Committee notes that although its purpose was to determine whether the employer had a duty to cooperate with the trade union, the courts do not appear to have examined this issue until today. On the contrary, for two-and-a-half years successive rulings have been issued on preliminary issues like the determination of the competent court and the standing of the defendant trade union after its amalgamation with the NSZZ “Solidarnosc” Inter-Enterprise Organization of the Middle East Region. Finally, with regard to the penal charges brought against 19 senior managers of SIPMA S.A. on 14 October 2003, the Committee notes that according to the Government, this case has been pending due to the large number of accused persons, the bulk of the materials and a series of formal or procedural motions filed by the parties. The Committee further observes that the Government does not provide a response to the complainant’s allegation that this case was transferred to the Kielce District by the Public Prosecutor because of the lack of action on the side of the Public Prosecutor in the Lublin District. The Committee finally notes the Government’s statement that all the above cases will remain in the “area of interest” of the Common Courts Department of the Ministry of Justice and have been covered by the administrative supervision of the chairpersons of the respective courts.
14. 138. The Committee notes with deep regret that this is not the only case brought to it with respect to unjustified delays in the administration of justice and alleged partiality by the Public Prosecutor’s Office in cases concerning anti-union discrimination. These wider issues are addressed in the framework of Case No. 2395.
15. 139. Noting with regret that the NSZZ “Solidarnosc” trade union in the SIPMA S.A. enterprise has been dissolved, the Committee requests the Government to intercede with the parties with a view to improving the industrial relations climate between the enterprise and the NSZZ “Solidarnosc” Inter-Enterprise Organization of the Middle East Region so that the latter may exercise its activities with respect to this enterprise without any interference or discrimination by the employer against its members or delegates. Furthermore, recalling once again that justice delayed is justice denied, the Committee expects that the measures taken by the Government will effectively speed up the judicial proceedings initiated almost three years ago by Zenon Mazus, leader of the NSZZ “Solidarnosc” trade union in the SIPMA S.A. enterprise, for recognition of his dismissal as ineffective. The Committee requests the Government to keep it informed on the above issues as well as the progress of the proceedings concerning the employer’s obligation to cooperate with the trade union and the penal charges filed against 19 senior managers of SIPMA S.A. and to provide information with regard to the dispute in the Hetman Limited enterprise.