Demande directe (CEACR) - adoptée 1997, publiée 86ème session CIT (1998)

The Committee notes that the Government's report has not been received. It notes, however, the detailed observations made by the National Board of Polish Doctors' Trade Union (PDTU) in a communication dated 1 May 1997 concerning the non-observance of Articles 7, 8 and 9 of the Convention in respect of doctors employed in the public health service, as well as the Government's reply thereto in a communication dated 3 November 1997.

The PDTU contends that the representation criteria set out for trade unions in the Labour Code (article 241.17, paragraphs 1.1 and 2) are unfavourable for public sector doctors since they grant exclusive bargaining rights to unions covering several branches of activity irrespective of the category of workers they represent thereby making it impossible for a trade union representing uniquely doctors to conclude a collective agreement. Moreover, such so-called "representative" trade unions could block the conclusion of a collective agreement for doctors even if such an agreement were accepted by 100 per cent of the doctors in the country. The PDTU contends that this is really what happened in practice. Hence, in June 1995 the PDTU suggested negotiating an over-factory agreement, in line with the procedure provided for in the Labour Code, which had been accepted by all the doctors in the country. However, other trade unions raised objections and the draft was not negotiated.

In its communication of 3 November 1997, the Government states that the PDTU demands the conclusion of a collective agreement of a mono-occupational character. The Government points out, however, that such an initiative can only be effective if it has the support of other representative trade unions, which are most frequently organized on a branch basis or even inter-branch basis (as the Independent Self-Governing Trade Union "Solidarnosc"). These representative trade unions consider that the different nature of the medical profession, including from the wage standpoint, should only be taken into account within the framework of the general branch agreement. According to the Government their position is reinforced by the fear, also shared by the Minister of Health and Social Welfare, that if the collective agreement for doctors were the first to be negotiated, it would absorb most of the financial means granted by the annual Budgetary Law for the section "health protection". The Government acknowledges that article 241, paragraph 1, of the Labour Code (which is called into question by the PDTU) attributes the most representative character to supra-enterprise trade unions associating: (i) at least 500,000 employees; or (ii) at least 10 per cent of the total number of employees to whom the statute applies but not less than 5,000 employees; or (iii) the largest number of employees for whom the supra-enterprise agreement is to be concluded. Although the PDTU is also against article 241, paragraph 2, of the Labour Code which allows all representative organizations to participate in negotiations concerning collective agreements for doctors, as well as to block the conclusion of an eventual agreement, the Government points out that in a decision dated 11 December 1996, the Constitutional Court declared the provisions of article 241, paragraph 1, to be in conformity with the Constitution of the Republic of Poland. The Government recognizes that Convention No. 151 does not cover the PDTU because the latter is subject to the more advantageous provisions of Convention No. 98.

After having examined the observations of the PDTU and the Government's reply thereto, and taking account of the specific nature of the public service which allows for the possibility of providing for special modalities of collective bargaining, the Committee considers that the PDTU, as long as it remains the unique or most representative union covering doctors, should have the possibility of participating in someway determining their terms and conditions of employment, though not necessarily in the context of a specific collective agreement for doctors.