Trade union and Wałbrzych city council in dispute

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In June 2004, a local trade union organisation representing staff at Wałbrzych city council (in Poland's Lower Silesia region) asked the Regional Social Dialogue Commission to adjudicate in a dispute with the city authorities. The dispute centres on which employees should receive the special protection provided by law for union activists, and claims of detrimental treatment of such activists.

On 11 June 2004, the local section of the All-Poland Alliance of Trade Unions (Ogólnopolskie Porozumienie Związków Zawodowych, OPZZ) at the municipal offices in the city of Wałbrzych wrote to Stanisław Łopatowski, the chair of the Lower Silesia Regional Social Dialogue Commission (PL0307105F) in Wrocław, requesting adjudication of a dispute between the union and the Wałbrzych 'city president'.

This dispute is the first to relate to conflicting interpretations of three statutes - the 1991 Act on trade unions, the 1990 Act on local government employees, and the 2002 Act on the direct election of commune executive officers (wójt), mayors and city presidents. In the Wałbrzych case, there are two points of contention:

• the definition and number of people serving in managerial positions in the municipal offices; and

• pay cuts affecting municipal office employees who have changed their posts as a result of a reorganisation implemented by the city president.

According to the local OPZZ representatives, the first of these issues has direct bearing on identifying the people who may benefit from the special protection under Polish labour law for those involved in trade union activity. On 9 July 2003, the board of the local OPZZ section drew up a list of five members of municipal office staff who, in its opinion, ought to benefit from the protection envisaged in the the Act on trade unions. Article 32.2 of the Act provides that an employer may not, without permission of the relevant trade union organisation, unilaterally amend terms and conditions of employment and pay to the detriment of an employee where the employee is a member of the board or 'review commission' of the in-house union organisation.

The city president of Wałbrzych initially concurred with the position taken by the union board. On 22 December 2003, however, he changed his decision, citing an opinion drawn up by the municipal office's legal advisor to the effect that the number of protected people working in managerial capacities amounted to four (the president himself and his three deputies). The union regarded this decision as an attempt at exerting undue pressure on people who are entitled to protection under the trade union legislation.

The board of the OPZZ section was also inclined to view organisational changes made by the city president in a decree of 2 October 2003 in the same anti-union terms. These organisational changes included the merger of eight work teams operating within four departments of the municipal offices. Four of the five employees who, in the belief of the union, are entitled to the special protection for union activists (including the deputy chair of the in-house OPZZ section’s board) worked in the organisational units that were abolished. All the employees concerned had their wages cut.

The local OPZZ board applied for an interpretation to the State Labour Inspection (Państwowa Inspekcji Pracy, PIP), which referred the matter to the labour courts. In March 2004, however, the labour court dismissed the application for a definition of the number of protected employees lodged by OPZZ, declaring that the dispute could not be heard before the courts because the Labour Code makes no provision to this effect. In a written decision issued in April 2004, the court stated that conflicts of this sort are regulated by two statutes, namely the 1991 Act regarding collective disputes and the 2001 Act regarding the Tripartite Commission for Social and Economic Issues (Trójstronna Komisja ds Społecznych i Gospodarczych) (PL0210106F) and the Regional Social Dialogue Commissions (Wojewódzkie Komisje Dialogu Społecznego, WKDS). Accordingly, the OPZZ section concerned decided to submit the problem to the Lower Silesia Regional Social Dialogue Commission.

On 6 July 2004, the matter was included on the agenda of the Regional Commission's labour market and safety at work team. Representatives of the Wałbrzych city authorities present at the session argued that the position taken by the city’s president followed from a correct interpretation of the 2002 Act on the direct election of commune executive officers, mayors and city presidents. Under this statute, the president is a single-person executive body of the local government as well as the single-person management of an employing entity, as the municipal office is for its personnel. It follows from this, the city authorities maintained, that the city president should essentially specify one post within the municipal office whose holder benefits from special protection - his own. Given, however, that the president’s deputies also make decisions concerning personnel matters, the president included them as well. Marcel Chećko, the OPZZ representative attending the session, disagreed with this interpretation.

Given that the dispute was impossible to resolve in the course of a single Regional Commission working team session, it was decided that an opinion on the case should be sought from the Labour Law Department of the Ministry of the Economy, Labour, and Social Policy (Ministerstwa Gospodarki, Pracy i Polityki Społecznej, MGPiPS).