Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 337, Junio 2005

1150. The complaint is contained in a communication from the Independent and Self-Governing Trade Union NSZZ “Solidarnosc” dated 9 November 2004.

1. 1151. The Government replied in a communication dated 24 February 2005.
2. 1152. Poland has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), and the Workers’ Representatives Convention, 1971 (No. 135).

A. The complainant’s allegations

1. 1153. In its communication dated 9 November 2004, the complainant alleges several acts of anti union discrimination in Hydrobudowa-6 S.A. company in the context of a dispute with the NSZZ “Solidarnosc” trade union in the enterprise. In particular, the complainant alleges that industrial relations have been very difficult in the Hydrobudowa-6 S.A. company since September 1999 when the employer withdrew from the enterprise-level collective agreement and stopped negotiations with trade unions because the latter would not accept the planned amendments to the agreement that were highly unfavourable to the workers. Up to the time of the complaint, the employer had not signed a new collective agreement and had been allegedly violating various workers’ rights and regulations concerning, inter alia, wages (failure to pay anniversary premiums to 57 workers from June 2000 to the end of 2001 although they were entitled to this reward after 15 years of work according to the collective agreement which was in force at that time; failure to pay the so-called 13th wage, an additional remuneration paid once a year, on the basis of the collective agreement). The enterprise trade union informed the National Labour Inspection about the situation in the enterprise. The Inspection carried out several controls in the enterprise and supported the charges of the trade unions. The complainant attaches three letters of the National Labour Inspection (in Polish) in support of its allegations.
2. 1154. The complainant further alleges that the workers in the Hydrobudowa-6 S.A. company who were members of the NSZZ “Solidarnosc” trade union in the enterprise had expressed their consent for trade union fee deduction from their remuneration parallel to signing the declaration of trade union membership. Thus, the employer was obliged to deduct the fees in accordance with article 33 of the Act of 23 May 1991 on trade unions which requires a written application from the enterprise-level trade union organization as well as the written consent of the workers concerned.
3. 1155. Nevertheless, the employer introduced a new requirement for the workers to sign additional declarations of consent in a letter to the staff dated 3 January 2002. The employer justified the introduction of this requirement by a re-organization of the administrative structure of the enterprise. Specifically, the declarations signed so far were kept by the Financial Department while the new declarations would be kept by the Payments Department. The complainant alleges that although the letter concerned trade union matters, it was directed exclusively to the staff, bypassing the trade union. No information or consultation activities were carried out. On the contrary, the whole action was of a confrontational nature, aimed at discouraging workers from trade union affiliation. The letter clearly mentioned for instance, that a worker does not have to agree on trade union fee deduction. Moreover, the employer introduced a rule that the lack of consent to trade union fee deduction during a period of two weeks would be treated as a refusal of the fee deduction. The complainant attaches a letter of the human resources director dated 18 March 2004 (in Polish) in support of its allegations.
4. 1156. The complainant adds that the reorganization of the employer’s administrative structure did not influence the existence of the obligation to deduct trade union fees from the workers’ remuneration. A worker’s consent was addressed to the employer as a single entity and was not influenced by the organizational unit which undertook to deal with this matter. The complainant adds that although the National Labour Inspection shared this view in its letter of 26 March 2004, it did not have jurisdiction over the issue of the employer’s conformity with the Trade Unions Act, which addresses the issue of fee deduction, and could only point towards the possibility of lodging a complaint with the Public Prosecutor’s Office.
5. 1157. Although the complainant informed the Public Prosecutor’s Office of the violation, the latter did not qualify the activities of the employer as unlawful and the proceedings were discontinued. According to the complainant, the Public Prosecutor’s Office justified its decision by repeating the employer’s argument that the requirement of a worker’s consent for trade union fee deduction from remuneration is legal. The argument that the workers concerned had already given their written consent was not taken into account. The complaint was therefore dismissed by the criminal court. The complainant attaches the decision of the Warsaw-Praga North District Prosecutor dated 6 September 2002 and the decision of the Warsaw-Praga District Court (Criminal Division) of 29 January 2003 (in Polish).
6. 1158. The complainant further alleges that on 27 February 2002 the employer informed the NSZZ “Solidarnosc” trade union in the enterprise about his intent to proceed with the disciplinary measure of dismissal of Henryk Kwiatkowski, member of the trade union executive committee, due to serious neglect of duty (refusal to work overtime). According to the complainant, Henryk Kwiatkowski had been employed in the enterprise on an unlimited contract since 1976. Because of his position in the trade union committee he was entitled to special protection of his contract on the basis of article 32 of the Trade Unions Act of 23 May 1991 according to which the employer cannot dismiss or terminate the employment of a member of the committee of an enterprise-level trade union organization without the committee’s consent.
7. 1159. According to the complainant, the employer invoked two events in justification of the dismissal. First, on 12 February 2002 a group of 11 workers, including Henryk Kwiatkowski, refused to work overtime at the building site, arguing that the weather conditions were very bad and that the delay in works on that day was caused by the unprepared building site due to wrong organization of work.
8. 1160. Second, on 13 February 2002 Henryk Kwiatkowski took part in the General Assembly of the members of the enterprise-level Social Aid Fund which is, according to Polish law, an entity without legal personality created by no less than ten employees of the enterprise in which the Fund is supposed to exist and aims to help its members (employees and pensioners formerly employed in the enterprise) by giving them loans or subsistence allowances according to its statute. A statutory “social supervision” over the Social Aid Fund’s activities is performed by trade unions. The meeting was planned to take place after work hours and the employer had been notified about the date and hour of the meeting. Nevertheless, the day before the General Assembly, the employer instructed the group of workers (11 persons) including Henryk Kwiatkowski to perform overtime work at a time which was irreconcilable with the time of the meeting. When he was informed by the workers that they refused to perform overtime work since they planned to take part in the meeting, the employer initially asked one of the members of the Fund’s Board to change the time of the meeting, without success, and then agreed with the member of the Fund’s Board that the latter would come to the building site in order to give the necessary information to the group of workers who would be deprived of the possibility to take part in the meeting due to overtime. However, in the view of the workers, a meeting with one of the members of the Board was not equivalent to participation in the General Assembly of the Fund since the agenda of the meeting comprised issues of primary importance which required social supervision, such as voting on regulations of the Fund’s activities, evaluation of the activities of the former Board of the Fund and election of the new authorities. In order to accommodate the employer’s interests, the workers decided that only four of them would take part in the General Assembly in order to represent the rest of the group. Henryk Kwiatkowski participated in the General Assembly of the Social Aid Fund both as a member of the Fund and as a member of the trade union committee in the enterprise obliged to carry out the social supervision of the Fund’s activities.
9. 1161. The complainant adds that although the enterprise trade union did not give its approval to the dismissal of Henryk Kwiatkowski, considering the intention to dismiss him as a repressive measure towards the trade union as a whole, Henryk Kwiatkowski was dismissed on 13 March 2002. Nobody else from the group of workers (11 persons) was dismissed for the events of 12 and 13 February 2002. According to the complainant, it is astonishing that the employer justified the most serious sanction – disciplinary dismissal without notice – simply by the fact that Henryk Kwiatkowski was a trade union official. In particular, in the letter dated 27 February 2002 concerning the intention of disciplinary dismissal without notice of Henryk Kwiatkowski, the employer stated that “Although in the case of an ordinary employee it would be possible to search for special mitigating circumstances for the evaluation of such behaviour, Henryk Kwiatkowski – who is the member of the trade union authorities in the enterprise – consciously abuses the privilege of special protection of the labour contract of a trade union official”.
10. 1162. The complainant further alleges that on 18 March 2002 Henryk Kwiatkowski filed a suit to the Warsaw Labour Court, demanding recognition of the dismissal as ineffective. As of September 2004, merely two sittings of the court had taken place and the next sitting was planned to take place on 26 October 2004. According to the complainant, this long delay in the judicial proceedings (2.5 years at the time of the complaint) is in itself a denial of justice. The complainant attaches several documents in Polish in support of its allegations (Cabinet Decree of 19 December 1992 on employees’ social aid funds and cooperative saving funds in the enterprise, letter of 27 February 2002 concerning the intention of disciplinary dismissal without notice of Henryk Kwiatkowski and letter dated 29 February 2002 by the trade union concerning its objection to the intention of disciplinary dismissal without notice of Henryk Kwiatkowski).
11. 1163. The complainant adds that one month after the dismissal of Henryk Kwiatkowski, on 30 April 2002, Sylwester Fastyn, chairperson of the NSZZ “Solidarnosc” trade union in the enterprise, was dismissed. His dismissal was based on serious negligence of duty due to “publicly offensive behaviour towards the Board of Directors of the company”. Sylwester Fastyn had taken the floor during the General Assembly of the company in order to comment on the management’s plans to withdraw the guarantees of the price at which the employees’ shares could be bought back and to radically reduce (by more than 15 times) the price of the employees’ shares. Sylwester Fastyn had been employed in the Hydrobudowa-6 S.A. company on an unlimited contract since 1979. When the enterprise was privatized, the employees of the enterprise became shareholders, as they bought shares for a reduced price. The controlling shares were bought by the enterprise Bilfinger&Berger AG. On 12 April 2002 Sylwester Fastyn took part in the General Assembly of the shareholders of the Hydrobudowa-6 S.A. company. The discussion concerned the amendment of the company’s statute and in particular, of the guarantees to the shareholders-employees to buy back their shares for a price equal to that paid by Bilfinger&Berger AG to the Treasury at the time of the privatization. According to the amendment presented by the management of the company, these guarantees were supposed to be withdrawn and the price of the shares drop to a few PLN instead of 100 PLN. Sylwester Fastyn asked the following question: “Do the authors of this amendment realize that such proposal will be judged by the employees-shareholders as robbery in broad daylight?” and then added in answering the employer’s comments: “Gentlemen, you rob people in broad daylight.” Finally, during the discussion on the report of the Supervisory Board, he asked the question; “Does the Supervisory Board know the course of the dispute that took place between the NSZZ “Solidarnosc” trade union organization in the enterprise and the company’s management? In what way does the Supervisory Board intend to counteract this dispute?”
12. 1164. According to the complainant, the Board of the company felt offended by Sylwester Fastyn’s comments to such an extent that it informed the trade union about its intention to dismiss Sylwester Fastyn without notice for serious neglect of duty due to “publicly offensive behaviour towards the Board of Directors of the company”. Although the trade union expressed its objection to the dismissal, the employer terminated the contract without notice on 30 April 2002. The complainant emphasizes that since Sylvester Sylwester Fastyn was the chairperson of the trade union in the enterprise, the employer was not entitled to terminate his contract without the consent of the trade union. Moreover, the employer tried to justify the most serious sanction against Sylwester Fastyn by his trade union activism by noting that “The behaviour of every employee, and in particular the behaviour of the leader of the trade union organization, cannot interfere with the business of the company” (letter of the president of the Board of Hydrobudowa-6 S.A. company dated 24 April 2004 concerning the intention of disciplinary dismissal without notice of Sylwester Fastyn). Finally, the employer prohibited Sylwester Fastyn, who remained the leader of the trade union in the enterprise as a full-time union officer after his dismissal, to remain in the trade union office “unless in the presence of workers”, thus seriously obstructing the trade union’s activities.
13. 1165. The complainant alleges that the employer brought a civil lawsuit against Sylwester Fastyn for protection of personal goods and chattels. This groundless action was of a seriously repressive nature and brought about the need to participate for two years in the proceedings. The civil court in its first sitting dismissed the lawsuit although this happened only in 2004. The employer lodged an appeal.
14. 1166. The National Labour Inspector initiated proceedings before the Warsaw District Court (Criminal Division) for an offence of article 281, item 3, of the Criminal Code, that is, termination of the labour contract without the consent of the enterprise-level trade union. The Court passed a sentence after a year, on 27 August 2003, judging the president of the Board of Hydrobudowa-6 S.A. company guilty of unlawful termination of the contract of Sylwester Fastyn. The President of the Board appealed. The Court of Appeal upheld the sentence and adjudged a fine, one year and a half after the dismissal of Sylwester Fastyn.
15. 1167. The complainant adds that on 8 May 2002 Sylwester Fastyn brought a lawsuit before the Warsaw Labour Court claiming reinstatement. On 10 July 2002, the employer requested the suspension of the proceedings until the abovementioned decision of the Criminal Court. The Labour Court granted the application. After the appeal of Sylwester Fastyn against this decision, the court of second instance ordered the revival of the proceedings. However, the abovementioned actions (civil lawsuit for protection of personal goods and chattels and criminal proceedings) caused the lawsuit on reinstatement to be still pending.
16. 1168. The complainant attaches various documents in Polish in support of its allegations (letter dated 24 April 2004 by the employer concerning the intention of disciplinary dismissal without notice of Sylwester Fastyn, letter dated 26 April 2002 by the trade union concerning its objection to the intention of disciplinary dismissal without notice of Sylwester Fastyn, Decision of the Pubic Prosecutor’s Office of 6 September 2002 and Decision of the Warsaw Court of Appeal (Criminal Division) of 22 January 2004).
17. 1169. The complainant concludes by emphasizing that, although the above acts were a result of anti-union discrimination for trade union activities aimed at preventing violations of workers’ rights by the employer, the Public Prosecutor’s Office did not recognize the employer’s actions as anti-union discrimination (although the Criminal Court subsequently recognized that Sylwester Fastyn had been dismissed unlawfully – see above). The complainant emphasizes that decisions to discontinue proceedings in cases of anti-union discrimination, concerning non-deduction of trade union fees or dismissal of trade union officials without the required consent of the trade union concerned, is a daily practice in Poland in recent years. Even though an employer’s act is recognized as an offence, the proceedings are often discontinued because of the act’s “minor social harmfulness”. Nevertheless, the complainant adds, the non-deduction of trade union fees constitutes a serious obstacle for trade unions which have to be properly protected in such cases. The complainant adds that the line of argumentation according to which the behaviour of trade union officials is supposed to be in accordance with higher requirements as to “dignity” or “respect for the priority of the company’s business” than in the case of ordinary workers (as in the case of the arguments used by the employer against Henryk Kwiatkowski and Sylwester Fastyn) reflects the general atmosphere of tolerance for acts of anti-union discrimination in the case law of the Public Prosecutor’s Office in Poland. Moreover, the delays of the labour court proceedings concerning reinstatement in case of unlawful dismissal of trade union officials are reprehensible. The above trends – i.e., indulgent attitude towards anti-union discrimination and serious delays in proceedings concerning reinstatement in case of unlawful dismissal – of which the situation in the Hydrobudowa-6 S.A. company is but an example– constitute serious threats for the rights guaranteed in Conventions Nos. 87 and 98.
18. B. The Government’s reply
19. 1170. In its communication dated 24 February 2005, the Government indicates first, with regard to the termination of the collective agreement in the enterprise, that according to article 241 of the Labour Code, in case of termination of a collective agreement, the current agreement shall remain in effect until a new one is concluded, unless the parties declare that they do not intend to conclude any such new agreement. The termination of a company collective agreement by the employer obliges him to start negotiations on concluding a new agreement, if the trade union has made such a demand (article 241, paragraph 3, clause 3). Thus, the duty relates to starting negotiations, not to concluding an agreement. As it follows from the complaint, the employer did commence negotiations, which, however, failed to lead to the conclusion of a new agreement. The fact that the collective agreement remained in force after it had been terminated, meant that the employer was obliged to pay to the employees the benefits provided for in the said agreement. However, the situation changed after a decision passed by the Constitutional Court on 26 November 2002 pursuant to which article 241, paragraph 4, of the Labour Code had lost its binding effect. This means that the employer is not bound by the provisions of an enterprise collective agreement after it has been terminated. The employer is bound, however, by the labour- and remuneration-related conditions provided for in the said agreement, until the termination period expires.
20. 1171. With regard to the deduction of trade union fees, the Government indicates that, pursuant to article 33 of the Trade Unions Act of 23 May 1991, the employer is obliged to deduct trade union fees from the employee’s wages if two conditions are fulfilled: the trade union must submit a written application and the employee must provide the employer with a written authorization to deduct the declared amount of the fees. Failure of the employer to meet the above obligation may result in the imposition of a fine or the limitation of liberty (article 35, paragraph 1, clause 4, of the Act). Such penalties are imposed in the course of penal proceedings.
21. 1172. With regard to the specific action undertaken by the law enforcement authorities when the employer terminated the deduction of trade union fees in this case, the Government indicates that upon receiving a notice from the union concerning the commitment of a crime consisting in violating the rights of employees in Hydrobudowa-6 S.A. company, the Warsaw Praga North District Prosecutor conducted an investigation that was concluded with a decision, dated 6 September 2002, to discontinue the investigation due to the lack of statutory attributes of a prohibited act. The aforementioned decision was appealed against by the Mazowsze Region NSZZ “Solidarnosc” Company Committee No. 1771. The Warsaw District Prosecutor decided that the appeal was unjustified, and referred it to the Warsaw-Praga District Court. By means of its decision dated 29 January 2003, the District Court rejected the appeal and sustained the verdict issued by the Warsaw-Praga District Court. This procedurally exhausted the available means of recourse and the Prosecutor’s decision was examined by an independent court, in compliance with due process principles. The decision of the District Court and its justification indicate that the Court has not found any reasons to question the prosecutor’s handling of the case. Irrespective of the said decision, upon application by the NSZZ “Solidarnosc” trade union in the enterprise to renew the discontinued proceedings, the Warsaw Appellate Prosecutor examined the case file and ordered that the necessary procedural actions be undertaken to collect evidence so as to verify the circumstances justifying the potential issuing of a new decision to renew the discontinued proceedings. Having performed the actions ordered, i.e., having collected additional documents and having heard the witnesses, the District Prosecutor acknowledged that no circumstances existed to renew the validly discontinued proceedings. His position was shared by the Warsaw District Prosecutor. The present complaint, which was notified to the Minister of Justice in order to prepare the Government’s response, was considered as a subsequent application for renewal of the discontinued proceedings. If no new circumstances have taken place, the plaintiffs will be notified of the result of the file review carried out within the framework of the procedural supervision.
22. 1173. With regard to the dismissal of the chairperson and a member of the trade union executive committee, the Government indicates that, according to the legal provisions in force when the employment contracts of trade union officials are terminated, the employer can terminate or provide a notice of termination of their employment relationship, provided that approval of the executive committee of the trade union in the enterprise has been obtained. If the procedure is not complied with, the employee can seek justice in a labour court. As far as the presence of a trade union official who is not an employee of a given company on the said company’s premises is concerned, relevant arrangements should be made between the employer and the trade union organization.
23. 1174. As regards the action undertaken by the law enforcement authorities on the dismissal of Sylwester Fastyn, Chairperson of the NSZZ “Solidarnosc” trade union in the enterprise, the Government indicates that, in its decision of 22 January 2004, the Warsaw District Court (Criminal Division) declared Gregor Sigmund Sobisch (the Chairperson of the Board of Directors of the Hydrobudowa-6 S.A. company) guilty of gross violation of legal provisions and imposed upon him a penalty of PLN 1,000 for terminating on 30 April 2002 the employment contract of Sylwester Fastyn without notice and despite the lack of the prior consent of the trade union committee.
24. 1175. On 5 June 2002, a lawsuit for the protection of personal goods and chattels was filed in the Warsaw District Court by Mr. Gregor Siegmund Sobisch and others against Sylwester Fastyn. In its decision dated 30 March 2004, the Warsaw District Court rejected the lawsuit, having conducted ten hearings, and having interviewed 13 witnesses and parties. Then, after an appeal had been filed by the plaintiff, the case was examined by the Court of Appeal which dismissed the appeal in its decision of 9 December 2004. Unlike what is stated in the complaint, the Court did not dismiss the claim immediately, during the first hearing, without collecting sufficient evidence.
25. 1176. Mr. Sylwester Fastyn filed his suit for reinstatement to work on 7 May 2002. On 10 July 2002 an explanatory meeting was held, during which the defendant’s counsel put forward a motion to suspend the proceedings until the abovementioned civil case for the protection of personal goods and chattels and the penal case for the violation of labour law provisions were concluded. The District Court approved the said motion and suspended, by means of its decision dated 3 February 2003, the proceedings until the aforementioned cases were concluded. The District Court overruled, by means of its decision dated 30 June 2003, an appeal by the plaintiff.
26. 1177. Upon the examination of the complaint by the criminal court, the case file was returned to the District Court on 12 September 2003, with the aim to continue the proceedings. During a hearing scheduled for 16 March 2004, the parties’ counsels were obliged to submit motions as to evidence within a 21-day period, or they would not be examined. During the next hearing held on 14 October 2004, the court heard five witnesses and adjourned the proceeding until 8 November 2004. Four more witnesses were summoned for the new hearing. During the hearing held on 8 November 2004, the Court heard two witnesses and adjourned the proceedings until 6 April 2005. Six more witnesses and the president of the Board of the defendant company would be heard at that time. The Government states that considering the above, one can assume that the proceedings will be concluded at the aforementioned date. The Government indicates that the proceedings’ length was significantly influenced by the appeal procedure concerning the suspension of the proceedings, and by long intervals between individual hearings.
27. 1178. With regard to the dismissal of Henryk Kwiatkowsky, member of the trade union executive committee, the Government indicates that the action for reinstatement to work, filed by Henryk Kwiatkowski, was registered by the Warsaw-Praga District Court on 18 March 2002. By means of the Court’s decision of 9 September 2002, the proceedings were suspended, as the plaintiff had failed to assume, within the period of time specified by the court, a standpoint with regard to the defendant’s answer to the lawsuit. Despite the fact that the copy of the decision to suspend the proceedings was delivered to him along with the notification about the measures of appeal, the plaintiff failed to submit his complaint. Then, by means of its decision of 28 November 2002, the District Court refused to reinitiate the suspended proceedings, as requested by the plaintiff in his letter of 9 October 2002. The plaintiff has also failed to file an appeal against the said decision.
28. 1179. The Government adds that by means of a decision of 24 January 2003 the Court decided to reinitiate the suspended proceedings. The hearing date was scheduled for 6 June 2003. One witness was heard during that hearing. The Court gave up hearing two remaining witnesses, justifying the decision by the fact that the judge was not well. The hearing was adjourned without specifying the date of the subsequent meeting. The relevant Department’s chairperson issued a decision on 24 June 2003 by means of which the case was submitted for examination to an assistant judge, for whom a new division was being established. The assistant judge resigned several months later, without holding any hearings in the case in question. As a result, a new judge had to be appointed. After the change, a new hearing date was scheduled for 20 May 2004. On that day, the Court heard three witnesses and adjourned the meeting until 9 March 2005.
29. 1180. The Government notes that the proceedings in this case were lengthy mainly due to the fact that they were suspended between 9 September 2002 and 24 January 2003. The duration of the trial was also impacted upon by long intervals between individual hearings. It has to be kept in mind that the plaintiff, despite being properly instructed, failed to appeal against the decision on suspending the proceedings, and against the decision to refuse to reinitiate the suspended proceedings.
30. 1181. The Government also points out that long intervals between individual hearings are common in other cases examined by the Warsaw-Praga District Labour Court. The situation is caused due to a large number of incoming cases and a large number of cases from previous years which still await examination. These circumstances, although justifying the lengthy nature of the proceedings that have been in progress for several years, should not exist. Therefore, in order to prevent further extension of the legal proceedings, the Minister of Justice ordered that the cases of Mr. Sylwester Fastyn and Mr. Henryk Kwiatkowski be supervised by the Common courts’ Department. The supervision means that monthly reports need to be submitted by the Courts on any actions undertaken with regard to the cases in question. Any unjustified delay in the proceedings results in disciplinary penalties. The above means in practice that the cases covered by the Common Courts Department’s supervision are sped up.
31. 1182. The Government concludes by expressing the hope that the actions undertaken by the Ministry of Justice and in particular the covering of the cases in question with a supervision procedure, will facilitate their prompt conclusion, will make the law enforcement authorities sensitive to cases related to trade union protection and will contribute to the observance of freedom of association regulations in Poland.

C. The Committee’s conclusions

1. 1183. The Committee notes that this case concerns allegations that the management of the Hydrobudowa-6 S.A. company discontinued the deduction of trade union fees for the NSZZ “Solidarnosc” trade union in the enterprise and dismissed Sylwester Fastyn and Henryk Kwiatkowski, chairperson and member of the executive committee of the abovementioned trade union respectively, in violation of the relevant legislation. The complainant also alleges that the Government and the judicial authorities have had an indulgent attitude towards these acts of anti-union discrimination and that there have been serious delays in the proceedings concerning the reinstatement of the abovementioned trade union officials.
2. 1184. The Committee notes that, according to the complainant, several acts of anti-union discrimination took place in the Hydrobudowa-6 S.A. company in the context of a dispute with the NSZZ “Solidarnosc” trade union in the enterprise which started in September 1999 when the employer withdrew from the enterprise-level collective agreement and stopped the negotiations with the trade union because the latter would not accept the planned amendments to the agreement.
3. 1185. The Committee takes note of the Government’s observations with regard to the termination of the collective agreement in the enterprise, to the effect that negotiations between the parties failed to lead to the conclusion of a new collective agreement and that the employer is not bound by the provisions of an enterprise collective agreement after it has been terminated, but is bound by the labour- and remuneration-related conditions in the agreement until the termination period expires. The Committee also notes from the text of the decision of the Warsaw-Praga North District Prosecutor which is attached to the complaint, that the employer finally reimbursed the workers for certain premiums and rewards due under the collective agreement which were not paid in time due to the difficult financial condition of the company.
4. 1186. The Committee further notes that the complainant alleges the non-deduction of trade union fees since January 2002 when the employer introduced a requirement for the workers to sign a declaration (in addition to the one which they had already signed when they joined the union) giving their consent to the deduction. The employer allegedly justified this requirement by an administrative reorganization of the enterprise. In particular, the declarations signed so far were kept by the Financial Department while the new declarations would be kept by the Payments Department. The employer moreover allegedly introduced this new requirement without any consultation with the union and in an allegedly confrontational manner, stating clearly in the relevant letter that a worker does not have to agree to trade union fee deduction and considering that a two-week delay in providing written consent is equivalent to a refusal. When the complainant informed the Public Prosecutor’s Office of the violation, the latter failed to qualify the activities of the employer as unlawful and the judicial proceedings were discontinued without taking into account the workers’ argument that they had already given their written consent to the deduction.
5. 1187. The Committee notes from the Government’s response that article 33 of the Trade Unions Act of 1991 contains an obligation for the employer to deduct trade union fees where the trade union has submitted a written application and the employee has provided a written authorization to this effect; failure by an employer to meet this obligation is punishable by a fine or the limitation of liberty according to article 35 of the Act. However, in the case at hand, the Warsaw-Praga North District Prosecutor found that the statutory attributes of the prohibited act had not been fulfilled 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.
6. 1188. Although the Committee takes due note of the fact that the decision of the Warsaw-Praga North District Prosecutor to discontinue the investigation on the termination of the deduction of trade union fees has been confirmed by further judicial instances, it must also observe that neither the text of the decision nor the Government’s response indicate the grounds justifying the unilateral termination of this facility, which had allegedly been available in the past on the basis of written authorizations provided in accordance with the law. The Committee recalls that the withdrawal of the check-off facility, which could lead to financial difficulties for trade union organizations, is not conducive to the development of harmonious industrial relations and should therefore be avoided [see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 435]. The Committee also notes that the reasons allegedly put forward by the employer for requiring a new written authorization for the deduction of trade union fees, namely, that the new authorizations would be treated by the Payments Department instead of the Financial Department, are not convincing at first sight since they concern an issue which is proper to the employer and should not influence in any way the validity of the authorizations which were previously given by the trade union members. Finally, with regard to the allegedly unilateral and confrontational manner in which this requirement was introduced, the Committee recalls that attempts by employers to persuade employees to withdraw authorizations given to a trade union could unduly influence the choice of workers and undermine the position of the trade union, thus making it more difficult to bargain collectively which is contrary to the principle that collective bargaining should be promoted [see Digest, op. cit., para. 766]. Noting that the check-off facility in the Hydrobudowa-6 S.A. company has been allegedly unilaterally modified since January 2002, the Committee requests the Government to intercede with the parties (either in the framework of the renewal of the discontinued proceedings or otherwise) with a view to re-establishing the previously available check-off facility and to keep it informed of progress made in this respect.
7. 1189. The Committee notes that the complainant further alleges that: (1) on 13 March 2002 the employer dismissed without notice Henryk Kwiatkowski, member of the trade union’s executive committee, on the ground that his refusal to work overtime in order to perform trade union activities constituted a serious neglect of duty; (2) on 30 April 2002 the employer dismissed without notice Sylwester Fastyn, chairperson of the NSZZ “Solidarnosc” enterprise union on the ground that the statements he made during the General Assembly of the shareholders of the Hydrobudowa-6 S.A. company were a public offence to the Board of Directors and constituted a serious neglect of duty; (3) both dismissals were carried out without the trade union’s approval and despite its objections, contrary to the requirements of article 32 of the Trade Unions Act of 1991; (4) the Public Prosecutor’s Office did not recognize the employer’s actions as anti-union discrimination (although the Criminal Court subsequently recognized that Sylwester Fastyn had been dismissed unlawfully).
8. 1190. The Committee notes that the Government indicates that, according to the legal provisions in force when the employment contracts of the trade union officials are terminated, the employer can terminate or provide a notice of termination of their employment relationship, provided that approval of the executive committee of the trade union in the enterprise has been obtained. If the procedure is not complied with, the employee can seek justice in a labour court.
9. 1191. The Committee draws the Government’s attention to Convention No. 135 and Recommendation No. 143 concerning the protection and facilities to be afforded to workers’ representatives in the undertaking, adopted by the International Labour Conference in 1971, in which it is expressly established that workers’ representatives in the undertaking should enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities as workers’ representatives or on union membership, or participation in union activities in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements [see Digest, op. cit., para. 732]. One of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers' organizations shall have the right to elect their representatives in full freedom [see Digest, op. cit., para. 724]. The Committee expresses regret at the dismissal of Sylwester Fastyn and Henryk Kwiatkowski, respectively chairperson and member of the executive committee of the NSZZ “Solidarnosc” trade union in the Hydrobudowa-6 S.A. company, which was carried out contrary to the law in respect of the procedures to be followed for dismissal of trade union officials.
10. 1192. With regard to the progress of the cases of Henryk Kwiatkowski and Sylwester Fastyn before the competent tribunals, the Committee notes that according to the complainant: (1) although Henryk Kwiatkowski filed a lawsuit to the Warsaw Labour Court on 18 March 2002, demanding recognition of the dismissal as ineffective, merely two sittings of the court had taken place at the time of the complaint leading to a long delay of 2.5 years in the judicial proceedings; (2) the proceedings brought by Sylwester Fastyn in order to obtain reinstatement are still pending since 8 May 2002 (7 May 2002 according to the Government) although on 27 August 2003 the Warsaw District Court (Criminal Division) found the employer guilty of unlawful termination of the contract of Sylwester Fastyn and imposed a fine on the employer.
11. 1193. The Committee notes that according to the Government: (1) the long delay in the proceedings brought by Henryk Kwiatkowski was mainly due to the long intervals between hearings and the fact that the proceedings were suspended between 9 September 2002 and 24 January 2003 as the plaintiff had failed to assume a standpoint with regard to the defendant’s answer to the suit within the deadlines specified by the Court and then failed to lodge an appeal within the legal deadlines, despite being properly instructed to do so; in spite of the above, the courts finally decided to reinitiate the suspended proceedings on 24 January 2003; (2) as for Sylwester Fastyn, the length of the proceedings was justified by their suspension and by long intervals between individual hearings; in particular, the suit he filed for reinstatement on 7 May 2002 was suspended until the conclusion of a civil lawsuit filed by the employer for protection of personal goods and chattels as well as penal proceedings for unjustified dismissal (in this latter case, the Warsaw District Court (Criminal Division) found the employer guilty of gross violation of the legal provisions on 22 January 2004 and imposed a fine of PLN 1,000 for terminating the contract of Sylwester Fastyn without notice and despite the lack of the prior consent of the enterprise trade union); the proceedings recommenced as of 12 September 2003 and were expected to be concluded during a hearing which had been scheduled for 6 April 2005; (3) in order to prevent a further extension of the legal proceedings in this case, the Minister of Justice ordered that the cases of Sylwester Fastyn and Henryk Kwiatkowski be supervised by the Common Courts’ Department so that monthly reports may indicate the actions undertaken with regard to the case in question and any unjustified delay in the proceedings may result in disciplinary penalties.
12. 1194. While taking due note of the Government’s statement that it has adopted measures to avoid any further delay in the proceedings initiated by Sylwester Fastyn and Henryk Kwiatkowski, the Committee must also observe that these cases have been pending since April and March 2002 respectively. The Committee recalls that cases concerning anti-union discrimination contrary to Convention No. 98 should be examined rapidly, so that the necessary remedies can be really effective. An excessive delay in processing cases of anti-union discrimination, and in particular a lengthy delay in concluding the proceedings concerning the reinstatement of the trade union leaders dismissed by the enterprise, constitute a denial of justice and therefore a denial of the trade union rights of the persons concerned. Justice delayed is justice denied [see Digest, op. cit., paras. 105 and 749]. The Committee expects that the measures now taken by the Government will effectively speed up the judicial proceedings initiated by Sylwester Fastyn and Henryk Kwiatkowski for reinstatement and the recognition of the dismissal as ineffective respectively, and requests the Government to keep it informed of the progress of the proceedings as well as their final outcome.
13. 1195. The Committee further notes that, according to the complainant, the employer prohibited Sylwester Fastyn, who remained the chairperson of the trade union in the enterprise as a full-time union officer after his dismissal, to remain in the trade union office “unless in the presence of workers”, thus seriously obstructing the trade union’s activities.
14. 1196. The Committee notes that the Government answers this allegation by indicating that, where the trade union official is not an employee of a given company, relevant arrangements should be made between the employer and the trade union organization.
15. 1197. The Committee observes that the dismissal of Sylwester Fastyn, chairperson of the NSZZ “Solidarnosc” trade union in the enterprise, for which the employer has already been sentenced and fined, as well as the long delay in the reinstatement proceedings, should not hinder the activities of the trade union by enabling the employer to prohibit Sylwester Fastyn’s presence in the trade union office unless he is accompanied by an employee. Convention No. 135 calls on ratifying member States to supply such facilities in the undertaking as may be appropriate in order to enable workers’ representatives to carry out their functions promptly and efficiently, and in a manner as not to impair the efficient operation of the undertaking concerned [see Digest, op. cit., para. 950]. The Committee requests the Government to intercede with the parties with a view to enabling Sylwester Fastyn, who has kept his post as chairperson of the trade union, to exercise his trade union activities without any further interference by the employer, in particular, to be able to remain in the trade union office without having to be accompanied by an employee. The Committee requests to be kept informed in this respect.
16. 1198. The Committee further notes that according to the complainant the situation in the Hydrobudowa-6 S.A. company is but an example of an indulgent attitude towards anti-union discrimination on behalf of the authorities and serious delays in proceedings concerning reinstatement in case of unlawful dismissal. According to the complainant, decisions to discontinue proceedings concerning anti-union discrimination are daily practice; even though an employer’s act is recognized as an offence, the judicial proceedings are discontinued due to the act’s “minor social harmfulness”.
17. 1199. The Committee notes the Government’s statement that the problem of delay in the administration of justice is a generalized one and is due to a large number of incoming cases as well as cases from previous years which still await examination. The Committee observes from the Government’s response that in the case of Sylwester Fastyn for instance, the intervals between the court hearings reached seven months on two occasions. In the case of Henryk Kwiatkowsky the intervals reached 11 months on one occasion and ten months on another. The Committee finally observes that the Government has not provided a response to the allegation that it is daily practice to discontinue judicial proceedings for anti-union discrimination, even though an employer’s act is recognized as an offence, due to the act’s “minor social harmfulness”.
18. 1200. The Committee emphasizes 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. The existence of legislative provisions prohibiting acts of anti-union discrimination is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice [see Digest, op. cit., paras. 738, 739 and 742.] The Committee therefore requests the Government 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. The Committee requests to be kept informed of developments in this respect.