Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 349, Marzo 2008

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

1. 242. The Committee last examined this case at its March 2007 session [see 344th Report, paras 1097–1158] and made the following recommendations:
   • (a) The Committee expects that the measures now taken by the Government will effectively speed up the judicial proceedings concerning the dismissal of two trade union leaders (Mr Marcin Kielbasa and Mr Slawomir Zagrajek) and requests the Government to keep it informed of the progress of the proceedings as well as their final outcome.
   • (b) The Committee urges the Government to reiterate and intensify its efforts, under the auspices of the Tripartite Commission, to ensure that the principles of freedom of association and collective bargaining are applied, particularly as regards the effective recognition of unions and the provision of adequate protection against acts of anti-union discrimination and interference. The Committee firmly expects that the situation of the respect of trade union rights in Poland will indeed improve with the approval of a national social agreement between the Government and the social partners and requests the Government to keep it informed of the developments in this regard.
   • (c) The Committee requests the Government, in consultation with the social partners, to provide for an impartial and independent method for verifying trade union representativeness order to avoid the problems that occurred in the case of Frito Lay Poland Ltd.
2. 243. In a communication dated 18 September 2007, the Government provided information in respect of proceedings relating to the dismissal of Mr Marcin Kielbasa from UPC Poland Ltd and on the alleged violations of trade union rights at Frito Lay Ltd.
3. 244. In respect of proceedings relating to the claim filed by Mr Kie?basa against UPC Ltd on 7 October 2004 to the then District Court for the Warszawa Praga in Warsaw to declare the termination of his contract of employment ineffective, the Government indicates that due to the reorganization of the Warsaw labour courts, the case was subsequently heard by the District Court for the Capital City of Warsaw. However, on 12 July 2006, the parties signed a settlement agreement, according to which the contract of employment was terminated by mutual agreement due to the liquidation of the position and Mr Kie?basa was to be paid a redundancy gratuity within seven days following the entry into force of a decision to dismiss the case. The decision dismissing the case was made on 12 July 2006. Neither party has challenged it.
4. 245. The Warszawa-Mokotów District Prosecutor carried out preliminary proceedings in order to determine whether the termination of employment contract with Mr Kie?basa, the Chairperson of the enterprise trade union, an employee covered by special protection, was an instance of anti-union discrimination. On 4 August 2006, due to the absence of features of prohibited act, pursuant to article 17(1)(2) of the Code of Penal Procedure, the proceedings were dismissed. Mr Kie?basa has not appealed this decision. The Regional Prosecutor in Warsaw confirmed the legitimacy of the decision.
5. 246. With regard to the alleged violation of trade union rights at Frito Lay Poland Ltd, the Government indicates that by a decision of 21 July 2006, the District Prosecutor closed the investigation of this case, concluding that the acts of hindering trade union activities and misusing of data on trade union membership, as alleged by the trade union, were not committed. This decision was challenged by the NSZZ “Solidarno??”. On 19 June 2007, the District Court for the Capital City of Warsaw dismissed the complaint and upheld the decision of the District Prosecutor.
6. 247. The court proceedings concerning the reinstatement of Mr S?awomir Zagrajek at Frito Lay Ltd with payment of the lost remuneration during the period of unemployment are pending before the District Court in Pruszków. The case was filed on 28 December 2005 and no verdict has yet been delivered. The defendant in this case filed a petition for the admission as evidence of testimonies given by almost 400 witnesses on the circumstances of submission of declarations of trade union membership and for stay of proceedings until the penal case pending before the District Court in Grodzisk Mazowiecki concerning, among other things, forgery of employees’ signatures on the declarations of trade union membership is heard.
7. 248. In 2006, the situation in Frito Lay Poland Ltd Company was a subject of a good will mission of social dialogue undertaken by the Mazowieckie Voivodship Commission. After fulfilling the mission in July 2006, the parties did not apply to the Voivodship Commission for further assistance.
8. 249. The Government further indicates that the recommendations and conclusions of the Committee on Freedom of Association regarding this case were discussed by the Tripartite Commission Team for Cooperation with the International Labour Organization on 25 April 2007. The team focused on two issues ensuing from the recommendations of the Committee: firstly, on the need to establish, in consultation with the social partners, rapid and impartial procedures providing effective protection to members and leaders of workers’ organizations; and secondly, on the development, in consultation with the social partners, of impartial methods of verification of a number of trade union members. On the first issue, the team has decided that the case should be handled by an appropriate Tripartite Commission Focus Team (team for the labour code and collective bargaining). Furthermore, the Government indicates that the Ministry of Justice has prepared a number of amendments to the Code of Civil Procedure of 17 November 1964 aimed at simplification and improvement of civil proceedings and, ultimately, increasing its effectiveness and reducing the time of hearings in civil cases. Draft laws and regulations will also apply to separate proceedings relating to the Labour Code. In relation to the second recommendation, the Government informs that the PKPP LEWIATAN, will present suggestions regarding the changes of procedures of verification of the number of trade union members at the sitting of related focus teams of the Tripartite Commission.
9. 250. The Committee notes the information provided by the Government. It notes, in particular, the settlement agreement between Mr Kie?basa against UPC Ltd with regard to the termination of his contract of employment. The Committee regrets that no decision has yet been reached in the case of termination of employment contract of Mr Zagrajek, trade union leader at Frito Lay Ltd, filed over two years ago. The Committee once again 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 of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, paras 105 and 826]. The Committee expects that the case will be soon decided by the Court and requests the Government to keep it informed of its final outcome.
10. 251. With regard to the alleged violation of trade union rights at Frito Lay Poland Ltd, the Committee notes that: the District Prosecutor concluded to the absence of any violation and closed the investigation on 21 July 2006; this decision was challenged by the NSZZ “Solidarno??” and that on 19 June 2007, the District Court for the Capital City of Warsaw dismissed the complaint and upheld the decision of the District Prosecutor. The Committee requests the Government to provide copies of both decisions.
11. 252. The Committee notes with interest the information provided by the Government with regard to the issues discussed under the auspices of the Tripartite Commission and the draft amendments to the Code of Civil Procedure. The Committee requests the Government to transmit the relevant draft amendments to the Committee of Experts on the Application of Conventions and Recommendations. It requests the Government to continue providing information on concrete measures taken to ensure that the principles of freedom of association and collective bargaining are applied, particularly as regards the effective recognition of unions and the provision of adequate protection against acts of anti-union discrimination and interference. The Committee further requests the Government to provide information on any progress reached with regard to the development of an impartial and independent method for verifying trade union representativeness, in consultation with the social partners.