The International Labour Organisation (“ILO”) has confirmed that it will hear Solidarity’s complaint against the Polish government in March 2012.
In July 2011 Solidarity filed a complaint against the Polish government with the ILO concerning the infringement of freedom of association.
Solidarity alleges that the Polish Act on Trade Unions of May 23, 1991 (the “Act”) does not comply with the ILO’s Convention No. 87 “Freedom of Association and Protection of the Right to Organize Convention” (the “Convention”), because it wrongfully limits freedom of association.
Pursuant to Article 2 of the Convention, workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation. The words “without distinction whatsoever” mean that freedom of association should be guaranteed to all workers without any discrimination based on occupation, sex, colour, belief, nationality etc. It also means that this freedom should apply to all categories of workers, especially: public servants, security agents, agricultural workers, plantation workers, temporary workers, workers in cooperatives, domestic workers, retired workers, workers who have been dismissed, self-employed workers, liberal professions and any others.
The Act contains a list of the limited categories of workers who are entitled to join trade unions. The list includes all workers in an employment relationship and a few additional categories: members of the agricultural production cooperatives, commercial agents (only if they are not employers), retired workers, unemployed and outworkers (the category of persons who can establish a trade union is even narrower).
The reason that the categories of persons entitled to establish or join a trade union is so limited is linked to the Polish definition of “employee”. The Labour Code states that an “employee” is a person in an employment relationship with an employer. Thus, large groups of persons who are “workers”, as defined by the ILO, are deprived of the right to establish and join the trade unions under Polish law and this is the issue Solidarity has raised.
It appears that the Polish position is likely to be in breach of the ILO’s rule that all workers should have the right to establish and join trade unions. It is therefore likely that the complaint filed by Solidarity will be upheld by the ILO. If that is the case, the Polish government will receive a recommendation to amend the relevant regulations. The Polish government should follow this recommendation, but the Governing Body of the ILO does not have any authority to force the government to do so. In the event that the Polish authorities fail to amend the current regulations, the only available sanction is publication of details of the infringements.
This matter is of material practical significance, because if the regulations are changed, the nationwide unions may be able to attract large groups of new members and their bargaining position and political influence could become even stronger than it is today.