FOURTH SECTION

DECISION

Application no . 56270/07 KOMISJA ZAKŁADOWA NSZZ SOLIDARNO ŚĆ at FRITO LAY POLAND Ltd against Poland

The European Court of Human Rights (Fourth Section), sitting on 2 February 2016 as a Chamber composed of:

András Sajó, President, Boštjan M. Zupančič, Paulo Pinto de Albuquerque, Krzysztof Wojtyczek, Egidijus Kūris, Iulia Antoanella Motoc, Gabriele Kucsko-Stadlmayer, judges, and Françoise Elens-Passos, Section Registrar ,

Having regard to the above application lodged on 15 December 2007 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Komisja Zakładowa NSZZ “Solidarno ść” at Frito Lay Poland Ltd in Grodzisk Mazowiecki is an enterprise-level unit of the “Solidarność” Trade Union.

2. It was represented before the Court by Mr A. Bodnar, a lawyer with the Helsinki Foundation for Human Rights, a non-governmental organisation based in Warsaw.

A. The circumstances of the case

3. The facts of the case, as submitted by the applicant trade union, may be summarised as follows.

1. Background information

4. On 18 October 2004 the National Labour Inspectorate found evidence of various violations of the workers ’ rights related to the working time, unpaid overtime and breaches of the health and safety regulations at Frito Lay Poland Ltd in Grodzisk Mazowiecki (“the company”).

5. At the end of 2004 eight women employed in Frito Lay Poland Ltd were dismissed. Shortly after their dismissal, they complained to the President of the Board of the applicant trade union in the company, Mr S.Z. Three of the women claimed that they had been sexually harassed by their superior. The remaining five alleged that that they had been dismissed for their knowledge of the sexual harassment. Mr S.Z. requested the management of the company that the dismissed employees be reinstated but to no avail.

6. On 12 January 2005 the Mazowiecki Region Branch of the “Solidarno ść ” Trade Union filed a criminal complaint with the prosecutor ’ s office. It alleged that W.O., a manager of the company had sexually harassed the employees. It also alleged that the rights of the employees had been violated.

7. On 13 April 2005 the District Prosecutor filed a bill of indictment with the Grodzisk Mazowiecki District Court. He accused W.O. of the sexual harassment of the employees. Another manager, G.M. was accused of wilful breach of the employees ’ rights. No information has been provided as to the outcome of those proceedings.

2. The facts of the present case

8. Every three months the applicant trade union had to inform the management of the company about the number of its members. On 5 October 2005 it declared to the management of the company that it had 171 members as of 30 September 2005. Having regard to the number of unionised employees and pursuant to the provisions of the Trade Unions Act, Mr S.Z., the president of the board of the applicant trade union, was relieved from his normal duties and carried out his trade union activity.

9. On 9 December 2005 daily newspaper “Super Express” published an article about Mr S.Z. entitled: “ How to receive a salary and do nothing ”. The article stated that the number of unionised employees in the company had been inflated and that Mr S.Z. had therefore no right to be seconded to his trade union activity.

10. On the same day the management of the company requested the members of the board of the applicant trade union to indicate the number of its members as of 30 September 2005. This request was refused.

11. On 12 December 2005 the employees were requested by the company director to proceed to a designated room in order to fill out a questionnaire about membership in the trade union. The employees had to present their identity document and to sign a list in order to receive a questionnaire. Then, they had to indicate in an anonymous questionnaire whether, or not they were members of the trade union as of 30 September 2005. The room had no arrangements ensuring the confidentiality of the process. The whole process was supervised by a notary and her assistant who drew a relevant record.

12. 378 employees of the total number of 418 took part in the survey. Six employees confirmed to be members of the trade union at the relevant time; while the trade union had declared 171 members.

13. Three employees declared subsequently to the trade union that they had given a negative reply for fear of reprisal.

14. On 14 December 2005 the Frito Lay Poland Ltd dismissed Mr S.Z. The reason for it was that Mr S.Z. had misled the company about the number of unionised employees which, in turn, allowed him to be relieved from his normal duties. Mr S.Z. instituted court proceedings for reinstatement.

15. On 28 December 2005 the Helsinki Foundation for Human Rights, a non-governmental organisation filed a criminal complaint against members of the management of the company. It submitted that the management of the company had acted illegally by requiring the employees to disclose their membership in the trade union. This action had amounted to the hindering of the trade union activity prescribed in section 35 of the Trade Unions Act and discriminated against the unionised employees. The Foundation submitted that if the employer had doubts about the number of unionised employees it should have initiated a relevant procedure before the civil court. It also asserted that the actions of the management had had intimidating effect on the current and future members of the trade union.

16. It appears that Mr S.Z. also filed a criminal complaint.

17. On 13 January 2006 the company distributed a form among the employees which was to be returned within five days. The form stated that “ If therefore for any reason the board of the “Solidarno ść ” trade union at the company still considers me its member, I hereby state that it is my will to resign from my trade union membership as of today ”.

18. The investigation was initially conducted by the Grodzisk Mazowiecki District Prosecutor ’ s Office but in January 2006 it was transferred to the Warsaw-Ochota District Prosecutor ’ s Office.

19. The prosecutor heard evidence from Mr S.Z. He stated that the company had been involved in a long conflict with the trade union. In October 2005 Mr S.Z. had informed the higher instances of the trade union about the alleged sexual abuse of a number of the employees. In his view, in reaction to that the company had decided to take measure aimed at undermining his credibility.

20. The prosecutor also heard evidence from four other members of the board of the applicant trade union. They stated that the trade union had been established in December 1998. In 2000, having regard to the increased number of unionised staff, the president of the board of the trade union was seconded to carry out his trade union activity. According to them, the survey of 12 December 2005 did not ensure confidentiality for the employees. Three members of the board of the trade union did not disclose their membership in the trade union for fear of dismissal. One member of the board of the trade union stated that the members of the board had requested the employees not to disclose the fact of their membership.

21. The prosecutor further undertook to verify the number of unionised employees at Frito Lay Poland Ltd. She requested the regional branch of the “Solidarno ść ” Trade Union to provide information about the registration of the applicant trade union. A request was also addressed to the treasurer of the applicant trade union to inform the prosecutor of the number of trade union members based on the dues paid.

22. On 21 July 2006 the Warsaw-Ochota District Prosecutor discontinued the investigation.

23. The prosecutor assessed the evidence and found that no criminal offence of hindering trade union activity, prescribed in section 35 § 1 (2) of the Trade Unions Act, had been committed. She noted that under this provision the hindering of the trade union activity should have been of a significant character. However, the carrying out by the employer of an anonymous survey among the employees could not have been qualified as such. The evidence obtained in the case did not indicate that the action of the employer had significantly affected the activity of the trade union. The survey was carried out with a view to verifying the number of unionised employees. Such an action of the employer was not prohibited, while the trade union had an obligation to inform the employer every three months of the number of unionised members. However, if the employer had doubts about the number of unionised employees and then organised a voluntary and anonymous survey in the presence of a notary, it could not be said that the action of the employer had a significant influence on the trade union activity. The prosecutor lastly noted that the survey did not disclose the identity of unionised employees.

24. The applicant trade union filed an appeal. It argued that the employer had no right to verify the number of trade union members and should have instituted proceedings before the civil court instead. The employer ’ s actions led to the dismissal of Mr S.Z. and reduction of the membership of the trade union. The trade union further alleged that the prosecutor had failed to hear a number of important witnesses, in particular the company director, the notary and his assistant and, at least, some employees.

25. On 19 June 2007 the Warsaw District Court upheld the prosecutor ’ s decision. It noted that the prosecutor had correctly assessed the evidence in the case. The court agreed, in particular, that the hindering of trade union activity should have been of a significant character and that the carrying out of the anonymous survey could not have been considered as the hindering of trade union activity.

3. Complaint to the Committee on Freedom of Association of the International Labour Organisation

26. On 28 February 2006 the “Solidarno ść ” Trade Union brought a complaint before the Committee on Freedom of Association of the International Labour Organisation concerning the situation in the Frito Lay Poland Ltd, alleging interference into trade union internal affairs and anti ‑ union dismissal. The IUF (the International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers ’ Association) supported this complaint. The complaint also concerned a situation in another private company which is not relevant to the present case.

27. The complainant indicated that Mr S.Z., the leader of the “Solidarno ść ” trade union at the Frito Lay Poland Ltd had been actively involved in a conflict concerning allegations of sexual harassment. The case of female employees who had been dismissed or forced to resign gathered a lot of attention from the media and from the international trade unions. The claimant described the survey organised by the company on 12 December 2005. It stated that the employees had been required to fill out a questionnaire concerning their trade union membership in circumstances that allowed easy identification of employees. Forms with a question “Were you a member of the enterprise-level trade union organisation on 30 September 2005?” were filled out in the presence of two persons and no arrangement had been made to ensure confidentiality. Two lawyers had been hired by the employer to supervise the procedure and this fact created an additional pressure. The complainant considered that due to lack of confidentiality, the majority of the trade union members had responded in the negative. It also described the circumstances leading to the dismissal of Mr S.Z.

28. The complainant further submitted t hat on 13 January 2006, a ready ‑ to-fill form had been distributed among the employees. The form contained the following statements “ I declare that I do not consider myself a member of the trade union ” and “ If therefore for any reason the enterprise trade union of the “Solidarno ść ” trade union still considers me its member, I hereby state that it is my will to resign from my trade union membership as of today ”. The form was to be signed and returned to the management within five days.

29. The complainant alleged that the acts of the employer to verify trade union membership had been clearly aimed at intimidating workers and contrary to the legislation in force. It noted that the Trade Unions Act provided for a possibility to apply to a court to verify the number of trade union members at a particular enterprise in the course of non-contentious proceedings. It alleged that as a consequence of the employer ’ s action, the number of unionised employees had dropped from about 170 to 60 in the space of two weeks. In conclusion, the complainant alleged that the actions undertaken by the management of Frito Lay Poland Ltd remained unpunished by the Polish Government or any public institution. The claimant asserted that the above cases of anti-union climate in the enterprise, hostile attitude towards attempts of workers to organise, anti-union discrimination and problems related to the reinstatement of dismissed trade unionists constituted a serious threat to the rights guaranteed by the Convention no. 98.

30. The ILO Committee on Freedom of Association examined the complaint as case no. 2474. In its first consideration of the case (334 th Report, March 2007), the Committee held, in so far as relevant:

“ 1147. The Committee notes that this case concerns alleged violations of freedom of association by the management of two private companies (... and Frito Lay Poland Ltd), namely: acts of interference in trade union affairs and anti-union dismissals.

...

1149. As regards the situation at Frito Lay Poland Ltd, the Committee notes that the complainant alleges that Mr S[ ... ] Z[ ... ], the leader of the enterprise trade union was accused by the employer of intentionally misinforming the company ’ s management as regards the number of trade union members and was dismissed without the approval of the union committee. The complainant further alleges that the gathering of individual data on trade union membership, on the results of which the employer had later based the decision to dismiss Mr Z[ ... ], was conducted in a manner violating confidentiality (...) and had a deterring effect on trade union members. Furthermore, on 13 January 2006, a ready-to-fill form letter was distributed among the employees of the enterprise attesting to their non-membership in the union, to be signed and returned to the enterprise management. According to the complainant, such intimidating acts lead to the dropping of trade union membership from 170 to 60 members in the space of two weeks.

1150. The Committee notes that here too, the Government does not challenge the substance of the allegations but indicates that only the Labour Court can make appropriate decisions with regard to the legality of the termination of the employment contract of Mr Z[ ... ]. The Committee also notes the comments of the Lewiatan Polish Confederation of Private Employers, which include the position of the management of Frito Lay Poland Ltd that they did not violate national legislation, that the procedure of verification of trade union membership was voluntary and anonymous and was a result of reasonable doubts over Mr Z[ ... ] ’ s claims with regard to the number of trade union members. It further notes the concerns of the Polish Confederation of Private Employers that the current legislation provides no means for verifying trade union membership.

1151. The Committee notes the Government ’ s further indication that the National Labour Inspectorate assured the Minister of Labour that it would continue monitoring the application by Frito Lay Poland Ltd of the relevant labour regulations. In view of the opening by the District Prosecutor in Grodzisk Mazowiecki of judicial proceedings in the case of the respect of trade union rights at Frito Lay Poland Ltd, the Minister of Labour also called upon the Minister of Justice to give it priority. ...

...

1155. While taking due note of the Government ’ s statement that ... the case of Mr Z[ ... ] and the alleged violations of trade union rights at Frito Lay Poland Ltd are also under investigation, the Committee must also observe that these cases have been pending since ... December 2005 ... . The Committee 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. ...

1156. The Committee observes that the Government has reacted to the concerns raised in respect of the enterprises ... and Frito Lay Poland Ltd by referring the issue to ... the Voivodship Social Dialogue Commission, as regards the latter.”

31. The Committee on Freedom of Association raised the issue of verification of trade union representativeness:

“1157. ..., the Committee observes the concerns raised by the Confederation of Private Employers in respect of the lack of legal provisions for verifying trade union representativeness and requests the Government, in consultation with the social partners, to provide for an impartial and independent method for verifying trade union representativeness in order to avoid the problems tha t occurred in the case of Frito Lay Poland Ltd.”

32. The Committee on Freedom of Association submitted, in so far as relevant, the following recommendations to the ILO Governing Body:

“1158. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

(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.”.

The ILO Governing Body approved these recommendations in March 2007.

33. Since its initial assessment of the case, the Committee on Freedom of Association has reviewed the situation periodically. In its Report No. 349 of March 2008, it noted, in so far as relevant, that:

“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 “Solidarnosc” 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.

252. The Committee ... 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.”

34. In its subsequent Report No. 353 of March 2009, the Committee on Freedom of Association took note of the decisions of the District Prosecutor ’ s and the Warsaw District Court, transmitted by the Government, which had both concluded that there was an absence of any violation of trade union rights at Frito Lay Ltd. The Committee regretted that no information had been provided with regard to its other outstanding recommendations. It observed that similar matters were being raised by the Committee of Experts on the Application of Conventions and Recommendations and referred the follow-up of those legislative aspects to it.

B. Relevant domestic law

35. Pursuant to section 25 1 § 2 of the Trade Unions Act of 23 May 1991 an enterprise-level trade union should inform the employer about an overall number of its members every three months. Section 31 regulates the right of members of the board of an enterprise-level trade union to be relieved from their normal duties in order to carry out trade union activity. The number of members of a board who could benefit from this right depends on the number of members of a trade union in an enterprise.

36. The Trade Unions Act provides in section 35 § 1(2) as follows:

“Whoever in connection with the office held or the function exercised hinders the trade union activity carried out in accordance with the provisions of the law shall be liable to a fine or a restriction of liberty.”

COMPLAINT

37. The applicant trade union complained that Frito Lay Poland Ltd had violated its trade union rights by having organised a survey among the employees aimed at disclosing their membership in the trade union. It alleged that its unsuccessful efforts to prosecute the management of the company for the hindering of trade union activity amounted to a breach of the State ’ s positive obligations under Article 11 of the Convention.

38. The complaint is related to the investigation carried out by the prosecutor and terminated with the Warsaw District Court ’ s decision of 19 June 2007. The applicant trade union firstly claimed that the prosecutor and the court had not properly established the circumstances of the case. Secondly, the applicant trade union claimed that the decision to discontinue the proceedings had not been properly reasoned. It asserted that the authorities had not examined the argument that the employer had had no right to independently verify the number of unionised employees. Thirdly, the applicant trade union complained about the authorities ’ interpretation of the domestic law which was contrary to the Convention. It objected to the finding that only a significant hindrance in the trade union activity could have triggered criminal prosecution. It asserted that the survey had amounted to pressure on the unionised employees and the trade union. It noted that shortly after the survey the number of unionised employees dropped from 170 to 60.

THE LAW

39. The Court notes that the subject-matter of this application, namely the employer ’ s verification of the trade union membership and its alleged unlawfulness has already been brought before the ILO Committee on Freedom of Association. This raises a question of admissibility under Article 35 § 2 (b) of the Convention, which reads as follows:

“2. The Court shall not deal with any application submitted under Article 34 that

...

(b) is substantially the same as a matter that has already been examined by the Court or has already been submitted to another procedure of international investigation or settlement and contains no relevant new information.”

40. The Court recalls that the purpose of this provision is to avoid a plurality of international proceedings relating to the same cases. This is achieved by restricting the Court ’ s competence in relation to any applications falling within the scope of the provision. The Court has no jurisdiction over such cases (see POA and Others v. the United Kingdom (dec.), no. 59253/11, § 27, 21 May 2013 ).

41. The Court firstly recalls that it has already held that the Committee on Freedom of Association constitutes another international procedure for the purposes of this admissibility criterion (see Fédération hellénique des syndicats des employés du secteur bancaire v. Greece (dec.), no. 72808/10, 6 December 2011; and POA and Others , cited above, § 28).

42. For this admissibility criterion to apply, the application to the Court must be “substantially the same” as the complaint to the Committee on Freedom of Association. The Court notes that in the complaint to the Committee on Freedom of Association the “Solidarno ść ” Trade Union alleged, inter alia , that the employer ’ s verification of the trade union membership at Frito Lay Poland Ltd had been unlawful and constituted an act of intimidation. It was further alleged that the actions of the employer had remained unpunished (see paragraphs 29-30 above). The Committee on Freedom of Association examined in detail the above complaint and took note of the decisions of the District Prosecutor and of the District Court which had found no violation of trade union rights at Frito Lay Ltd. At the same time, the Committee requested the Government to provide for an impartial and independent method for verifying trade union representativeness in order to avoid the problems that occurred in the case of Frito Lay Poland Ltd. (see paragraphs 31-32 above).

43. In the application to this Court, the applicant trade union complained about the survey organised by the employer and alleged that its unsuccessful efforts to prosecute the company for this act of hindering the trade union activity had amounted to a breach of Article 11 of the Convention. The applicant trade union alleged in addition that in the domestic investigation a number of procedural errors had been committed and that the domestic law had been erroneously applied. Having regard to the above, the Court cannot discern any substantial difference between the complaint to the Committee on Freedom of Association and the complaint submitted under the Convention. The essence of both complaints is the allegedly unlawful survey organised by the employer in order to verify the trade union membership and the authorities ’ response to it, which contravene the international obligations of Poland under respectively the relevant provisions of the ILO Convention No. 98 (the Right to Organise and Collective Bargaining Convention) and Article 11 of the Convention.

44. This is not sufficient, however, to settle the issue under Article 35 § 2 (b). According to the principles established in Convention case-law, the complainant before the other international organ should also be the same as the applicant before the Court (see Folgerø and Others v. Norway (dec.), no. 15472/02, 14 February 2006, with further references).

45. The applicant trade union is an enterprise-level unit of the “Solidarno ść ” Trade Union, a national trade union. It is evident that the applicant trade union was not, and could not be, a party to the complaint to the Committee on Freedom of Association of the ILO, standing in this procedure being confined to national trade unions and employer organisations directly interested in the matter [1] . However, the Court notes that the complaint to the Committee on Freedom of Association of the ILO filed by the “Solidarno ść ” Trade Union, acting, as it were, in the interest of its subordinate unit, referred to precisely the situation complained of by the applicant trade union, namely the unlawful verification of the trade union membership at the company and the lack of appropriate reaction of the authorities to it. The Court therefore considers that the complaint had been, in substance, submitted by the same complainants ( POA and Others, cited above, § 31). Accordingly, to permit the applicant trade union to maintain its action before the Court would be tantamount to circumventing Article 35 § 2 (b) of the Convention ( POA and Others, cited above, § 32).

46. The Court therefore finds that this application is substantially the same as a matter that has already been submitted to “another procedure of international investigation or settlement and contains no new information”. It must therefore be rejected in accordance with Article 35 §§ 2 (b) and 4 of the Convention.

For these reasons, the Court , unanimously ,

Declares the application inadmissible.

Done in English and notified in writing on 25 February 2016 .

             Françoise Elens-Passos András Sajó Registrar President

[1] Pursuant to § 31 of the Special procedures for the examination in the International Labour Organization of complaints alleging violations of freedom of association “Complaints lodged with the ILO, either directly or through the United Nations, must come either from organizations of workers or employers or from governments. Allegations are receivable only if they are submitted by a national organization directly interested in the matter, by international organizations of employers or workers having consultative status with the ILO, or other international organizations of employers or workers where the allegations relate to matters directly affecting their affiliated organizations. Such complaints may be presented whether or not the country concerned has ratified the freedom of association Conventions ” .