When will the restrictions imposed during martial law in Poland finally come to an end?

Martial law was introduced in Poland on December 13 1981, as a response to a wave of strikes that was happening in the country and the suspicion of foreign (that is, mostly American) intervention into the pro-democratic movements. The biggest strikes happened in August of 1980, and as a result of them an all-Poland trade union by the name of “Solidarity” was born. Allowing this union to be created was treated as a “necessary evil” and preparations for commencing the martial law started almost immediately after giving permission for “Solidarity’s” existence. During the period of martial law, General Jaruzelski first banned strikes entirely, and subsequently, in 1982, introduced an Act on Trade Unions. Its political objective was to formally legalize strikes in a way that, in practice, rendered them impossible. Even today, in the Third Polish Republic, we remain subject to the restrictions on strikes imposed by General Jaruzelski – provisions that were upheld by the 1991 Act on the Resolution of Collective Disputes. It is time to put an end to the fiction that originally underpinned these restrictions and to restore the freedom to strike.

A column by Piotr Krzyżaniak, published in August 2023 on a social media platform to mark the approaching anniversary of the August 1980 agreements.

It is common knowledge—and generally undisputed—that martial law began on December 13, 1981. It was imposed pursuant to a resolution of the Council of State, adopted on December 12, 1981, at the behest of the self-styled Military Council of National Salvation. Whether martial law was introduced legally is open to question; that it was introduced is beyond doubt.

When did martial law end? That is a more difficult question to answer. It was supposedly lifted on July 22, 1983—at least, that is what a resolution of the Council of State from that day suggests. But was it even possible to lift martial law when, from the perspective of constitutional law, it was never actually in effect? ​​I shall leave such questions to historians and legal theorists. My interest lies solely in the restrictions—restrictions which, in a crucial respect, remain in place to this day. Could this, then, be the longest „lockdown” in the history of our country? Though, perhaps, the term „lockout” would be more appropriate here.

The so-called „lifting” of martial law is a rather lengthy process. Even while martial law was still formally in effect—specifically, on October 8, 1982—a new Trade Unions Act was adopted.

The „workplace council”—a trade union body previously elected directly by the workforce and mandatorily established in every workplace—was replaced by the „workplace trade union organization.” The latter was no longer mandatory; it might or might not be formed within a given workplace. Furthermore, a specific schedule was established for the creation of trade union structures. Initially, only workplace-level structures could be registered, followed by nationwide structures, and finally, associations and inter-union organizations. Consequently, trade unions could only fully exercise their granted rights after December 31, 1984—a year and a half after the formal „lifting” of martial law.

But could trade unions operate after that date just as they had before martial law? Certainly not, and—perhaps surprisingly to some—this remains the case to this day.

Freedom to strike

From 1918—when the legal restrictions on strikes, left over from the era of the partitions, began to be lifted—until the imposition of martial law, one could not speak of a „right to strike” in Poland. No such right existed. Instead, there was a freedom to strike. A strike was a factual occurrence—neither prohibited nor regulated by law.

At times, this constituted a legally significant event. Such was the case, for instance, in the Second Polish Republic. Social unrest, manifesting as a strike, triggered a legal obligation to enter into negotiations between employers, trade unions, and the state. This was, at least, the framework established by the Act on Collective Disputes in Agriculture of March 28, 1928, and the Decree of the President of the Republic dated October 27, 1933, concerning extraordinary arbitration commissions for the resolution of collective disputes (which applied to workers in industry and commerce). Consequently, strikes were not prohibited, and the conditions under which workers could initiate them were not regulated in any way. Rather, a strike was simply regarded as an element of freedom of association.

Did anything change after 1945? Certainly not. A strike continued to be understood as an expression of a legally protected freedom. This is not to say that strikes were not broken up with militia’s batons—a method also known and employed by the police during the era of the Second Polish Republic. The point, however, is that they were not dispersed on the grounds that the participants were exercising their right to strike; some other pretext was always sought. For this reason, one of the prosecutors in the 1956 Poznań trial of the ten defendants could state: „We are not putting people on trial for participating in a strike or a demonstration; rather, we will prosecute those who have committed criminal offenses.”

As Stanisław Hejmowski—the defense attorney for the accused workers, an eminent Polish jurist who would later face political repression—rightly pointed out at the time, the prosecution failed to establish a clear boundary between those participants in the June events who committed actual crimes and those who were merely expressing their justified anger. No verdict was ever reached. Nevertheless, this clearly demonstrates that, prior to December 1981, strikers were neither punished—nor was any attempt made to punish them—for organizing or participating in strikes. In legal terminology, the very concept of an „illegal strike” did not exist. Consequently, the authorities had to prove that, in the course of what was, in fact, a legal strike, specific crimes had been committed. Which crimes? That was left to the (creative) ingenuity of law enforcement agencies.

What, then, has changed, such that today our legal terminology includes the concept of a „strike conducted in violation of the provisions of the Act”? Here, we arrive at what is arguably the greatest political joke in the history of our country.

A joke by the Jaruzelski regime

General Jaruzelski and his inner circle were not known for their sense of humor. Surviving photographs and video footage portray him as a rather rigid figure, his expressionless face obscured by large-rimmed glasses. Lech Wałęsa once claimed to have glimpsed tears behind those lenses—tears shed for the fate of the nation—though Andrzej Gwiazda was quick to dismiss this, attributing it instead to an eye condition. Regardless of the truth, one thing is certain: Wojciech Jaruzelski was not the type of man to toss out jokes at every turn. Yet, with people of his ilk, it sometimes happens that when they do finally crack a joke, the consequences are far-reaching—truly, they become the stuff of history.

And that is precisely what happened. As most people likely recall, one of the twenty-one demands put forward by the striking workers in August 1980—specifically the second demand—read: „[we call for] the guarantee of the right to strike, as well as the safety of those striking and those supporting them.” Naturally, the strikes of 1980 took place within the realm of the *freedom* to strike. The distinction between a „freedom” and a „right” is that, in the case of a freedom, the legal order may protect it, but it does not intervene in it. In the case of a „right,” the legal order establishes the conditions that must be met in order to exercise that right. These conditions can set the bar extremely high; however, this does not alter the fact that the right remains—at least potentially—guaranteed. It remains guaranteed even if meeting those conditions is, in practical terms, entirely unrealistic.

Naturally, the workers in August 1980 were not seeking to replace the *freedom* to strike with a formal *right* to strike. They simply wanted better safeguards for their existing freedom to strike.

The joke made by Jaruzelski’s team was, therefore, a classic play on words—a case of „quibbling over a term,” specifically the word „right.” How did the joke go? Something like this: „The workers, who had previously enjoyed the freedom to strike, wanted a 'right’ to strike—so, very well, we shall grant them this right, but not just yet; rather, it will be contingent upon five conditions, the fulfillment of which would be nothing short of a miracle.”

These conditions were set out in the Trade Union Act, which was drafted and enacted during martial law. What were these conditions? If a trade union wishes to organize a strike, it must first enter into negotiations with the head of the workplace (1). If this first step does not lead to the strike being called off, a conciliation procedure—conducted by a six-member commission consisting of an equal number of representatives from both sides—is mandatory (2). If this second step also fails to deter the intention to strike, compulsory judicial arbitration is required (3). Should this third step likewise fail to prevent the strike, a referendum must be held at the workplace; at least 50 percent of the workforce must participate (voluntarily, of course), and a majority must vote in favor of the strike via a secret ballot (4). If, by some miracle, the trade union manages to meet this fourth condition, it may then call a strike. However—just in case the workplace management has not yet had time to prepare for such an event (after all, who would have thought the trade unions could actually pull off a referendum?)—the strike must be announced at least seven days in advance! (5).

A strike should strike as a surprise

As is well known, a strike is an impulsive reaction by employees to actions taken by their employer that they perceive as unfavorable. The decision to go on strike is never easy for employees, as leaving their workstations means forfeiting their right to wages.

Consequently, a strike cannot last forever—after all, people need to eat. For employers, a strike is most problematic when it comes as a surprise. The lengthy conciliation process that precedes a strike typically causes employee dissatisfaction to naturally wane. Several months—or even longer—after the decision to enter into a collective labor dispute (which is roughly how long it takes to complete all the stages of conciliation mandated by law), the level of discontent often subsides to the point where few employees are willing to actually go on strike. Conversely, this pre-strike conciliation period proves highly advantageous for the employer, providing ample time to prepare—whether by shifting production elsewhere or negotiating extended fulfillment deadlines with business partners.

Thus, under the guise of a „right to strike,” an effective ban on actual strikes was introduced during martial law. What became of this strike ban after 1989? Essentially, nothing.

As Minister of Labor, Jacek Kuroń approached the legislative legacy of the Polish People’s Republic with great caution. He believed that one should not tear down what already exists without careful consideration. He did a great deal of thinking, yet he often left the initiative to others—for instance, allowing the Minister of Finance (and the father of transformation to capitalist market economy, known as “Shock Therapy”) Balcerowicz to take the lead. Regarding strikes, Kuroń held the view at the time that striking should not be too profitable for workers; otherwise, massive waves of strikes would destroy any chance of economic recovery. As we know, toward the end of his life, Kuroń came to regret all of this. The Polish proverb „a Pole is wise only after the damage is done” thus applies even to those who were, without a doubt, truly outstanding individuals.

But what was done at that time? The Act on Trade Unions of 1982 was replaced by two acts, both dated May 23, 1991. The first of these, concerning trade unions, maintained—within the new economic landscape—a model that had been „developed” during martial law: one based on a voluntary „workplace trade union organization,” which is not mandatory. Consequently, workplaces can function without trade unions; as we know, the current level of unionization in the private sector (excluding agriculture) stands at approximately 4 percent (according to 2021 data from CBOS).

The second act, passed on the same day, concerned collective disputes. It essentially reiterated all the conditions required for calling a strike that had been established by the legislation introduced during martial law. Very little actually changed. The second stage of conciliation—which remained mandatory—was renamed „mediation.” Instead of a process involving a six-person commission, it now simply consists of a continuation of negotiations, facilitated by an impartial mediator. Judicial arbitration also remained, though—perhaps most significantly—it is no longer mandatory. The requirement for a strike referendum persists, with the sole change being that the vote does not have to be conducted by secret ballot. Furthermore, the notice period for a strike—following the fulfillment of all preceding requirements—was reduced from seven to five days.

In summary, under current regulations, initiating a strike requires first entering into negotiations. If these fail to resolve the dispute and lead to the abandonment of strike plans, mediation becomes necessary. Should mediation also prove insufficient, the next step is to secure the approval of a majority of the workforce through a referendum, in which at least half of all employees at the workplace must participate. It should be noted that, unlike in 1982, the law no longer recognizes the concept of a „multi-establishment enterprise”; instead, large-scale entities—such as Amazon, Biedronka, or the Polish Post (Poczta Polska)—are treated as single, nationwide workplaces. Consequently, conducting a strike referendum is more challenging today than it was during the era of the Polish People’s Republic (PRL), as the process must encompass employees scattered across the entire country. Even if a union successfully carries out such a referendum, it remains obligated to provide advance notice of the strike—though the required notice period is now five days, rather than the previous seven.

When we look at the waves of strikes currently sweeping through France and other Western European countries—reminiscent of those that surged across Poland before the imposition of martial law—it becomes clear that the „joke” played by Jaruzelski’s regime succeeded. It succeeded all too well. Yet, every joke—even the darkest kind (which I happen to favor)—eventually grows tiresome. In this election year, I must ask our politicians: do they intend, once the elections are over, to finally lift the martial-law-era restrictions on the right to strike? Whatever justification may have once existed for these restrictions, it has surely long since vanished. If Russian tanks were to enter Poland today, it would certainly not be because we are striking. One could only speak of a total absence of any threat from Russian tanks once that type of weaponry is completely phased out of the Russian military. Are we expected to refrain from striking until then? That is nonsense!

It is therefore time to put an end to the fiction that originally underpinned these restrictions and to restore the freedom to strike.