Social dialogue & conflict resolution mechanisms

Social Dialogue and Conflict Resolution Mechanisms: conciliation, mediation, arbitration in Estonia, Hungary, Malta, Poland and Slovenia - Workshop

Prague, 29-31 October 2003

Discussion paper - abstract - Zbigniew Hajn

Professor of the University of Lodz, Poland

Conflict resolution mechanisms in Poland

Societal and industrial relations framework for conflict resolution

Solving social and economic problems by means of social dialogue or tripartite adjustment and consultation has constitutional basis in Poland. Many other acts refer to social and civil dialogue and tripartity as the basis and means of dealing with social matters. In Poland there are also many organs and institutions based on the principle of tripartity and social dialogue.

A leading tripartite institution is the Tripartite Commission for Social and Economic Matters created in 1994 by the social partners and the Government. The board consists of the representatives of the Government and the most representative union organizations and employers organizations. The representatives of local authority and of some other bodies are also members of the Commission with the advisory capacity. The Commission is a forum for social dialogue led to reconcile interests of employees and the employers with the common good and also to gain and maintain public peace. It may act as a bilateral or tripartite body. The Commission combines the elements of an autonomous dialogue with tripartite relations. In the hitherto activity the tripartite option has been dominant. The work of the Commission led to compromises in many important cases. At the same time, however, in many cases compromises concerned only some of the members of Commission. Often talks ended without any agreement.

Other organs of institutional tripartity are for example the Labour Protection Council, the Central Council of Employment, the Council of Statistics, the National Advisory Council for the Disabled Persons’ Matters, the Supervisory Board of Social Insurance Institution, the Committee for Collective Labour Agreements, Polish Tripartite Committee for Cooperation with ILO. On the level of the economy sectors work so called ‘tripartite teams’, e.g. for Miners’ Social Safety, for the Restructuryzation of the Energetistic Branch and others.

On the regional level a basic form of the tripartite relations are Provincial Commissions for Social Dialogue. Besides there also function specialized organs like for instance provincial and district employment councils dealing with labour market problems.

The tripartite relationships appear also in the ad hoc activities. The best example of which was the Pact on State Undertaking of 1993, establishing social rules of the privatization of economy. Gradually, autonomous dialogue is developing in Poland. Its natural backgrounds is a company or work establishment where the powers of the employees’ representatives are concentrated. They are executed mainly by the trade unions. The autonomous dialogue at the branch of economy level, especially the practice of entering collective labour agreements, is weaker. Due to the privatisation some of the branch tripartite organs have changed into bilateral institutions (e.g. the Team for Metal Industry Workers’ Affairs). Elements of an autonomous dialogue appear also in the Tripartite Commission for Social and Economic Matters. The example of a non-institutional dialogue is the accord of 2002 on Labour Code ammendments, concluded by unions and employers’ organisations, which contributed greatly to changes of the law. Hitherto tripartite and autonomous dialogue has brought significant success, especially in the sphere of reduction of social tension. In general, however, its effects are not fully satisfying for any side

Institutional basis for conflict resolution

According to the Constitution trade unions have the right to organize workers’ strikes or other protests subject to limitations specified by a statute. The scope of the freedom may only be subject to such statutory limitations as are permissible in accordance with international agreements to which the Republic of Poland is a party. The Collective Disputes Settlement Act of 1991 contain the regulation of the right to strike. The act describes collective dispute as a dispute between the employees and the employer or employers, concerning working conditions, wages, social benefits and trade union rights and freedoms. A strike was defined as a collective restraining of the employees from work in order to resolve a dispute with the employer or a group of employers, concerning matters which may be the subject of the dispute. A strike may be aimed only at employers, not at public organs. An important limitation of the right to strike and collective dispute is the limitation of permissible demands to working conditions, payments or social benefits and union freedoms. It results in informal conflicts and protests. Restrictions on the right to strike result also from ultima ratio and proportionality principles. Personal limitations of the right to strike are based on a ban on strike for employees whose work stoppage may put somebody’s life or health in danger or may be dangerous for the security of the State. It is also inadmissible to organize a strike in the police and army and some other armed formations as well as in the State authority organs and public administration.

Employees, including those having no right to strike, can use other forms of protest, provided that they do not put human life or health in danger, do not require any work stoppage and do not interfere with the legal order. They may be organized only by a trade union.

Leading a strike or other form of protest contradictory to law is a criminal offence, however the court proceedings are exceptional. A person organizing a strike also bears the liability for damages on general civil law terms.

The participation of an employee in an illegal strike gives the employer the right to apply sanctions for breaking employee’s duties. Such liability has been strongly limited by judicial decisions.

The question of the legality of lock-out is very unclear. A predominant opinion is that a limited defensive lock-out should be permissible.

Legal conflicts (interpretation of the content of the agreement)

Conflicts connected with the interpretation of the content of the collective labour agreement or another collective accord may be solved in two ways. The first one is based on explaining doubts by the parties to the agreement. The other one consists in settling a dispute concerning the interpretation of the agreement by a court or another organ. In practice more important is court proceeding. While trying cases resulting from individual claims based on normative provisions of the collective agreement a court performs neccessary interpretation of its provisions. The admissibility of settling before the court cases connected with the interpretation of contractual provisions of the agreement, that is provisions defining the mutual duties of the parties to the agreement, is controversial. A dominant view is that such cases may be solved only by way of a collective dispute.

Interest conflicts most often arise in the course of negotiating collective labour agreements or other collective agreements and company internal regulations. Polish law ensures broad freedom of collective agreement bargaining. It provides also full liberty of shaping the subject of collective agreement negotiations. Terms of remuneration and other terms and conditions of work may also be settled in internal company regulations, i.e. work regulations and pay regulations. In practice, in majority of establishments the said regulations substitute collective labour agreements. There are also negotiated collective accords other than collective labour agreements. In general, courts easily qualify the agreements as sources of labour law. Nowadays, collective labour agreements seem to be in defence.

A characteristic feature of Polish collective agreements is a weakness of multiemployer bargaining. In 2001 there were 140 registered multiemployer collective agreements only 17 of which of had national scope.

Number of labour conflicts 1992-2002

There is no official data concerning lockouts. It can also be claimed that they do not occur in practice.

The number of strikes, collective disputes and protest actions presents as follows: