Skuteczność konwencji MOP w polskim . prawie pracy
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Date
1983
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Wydział Prawa i Administracji UAM
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Effectiveness of the ILO conventions in Polish labor law
Abstract
The study elaborates a problem of relation of the ILO conventions to the
internal labour law in Poland having in view general transformations in -the
modern world resulting in abandoning extreme dualistic ideas in favor of concepts
which are intermediate between monism and dualism in solving the international
and internal law relation dilemma. Lack of an explicit regulation of that
question in the Polish constitution and a lack of labour code provisions on its
relation to the international labour laws as well as a particularly compound
nature of problems involved render a discussional and issue stating character of
this study.
A comparison of basic principles of labour law in Poland with relevantly
ordered conventions of the ILO proves a high degree of their interference. The
conventions are also analogous to the Polish law within the framework of
respective principles. Since the basic principles of internal law are developed not
only internally but also externally, outside of State, in the ILO conventions, the
latter should perform, among others, functions analogous to those of basic principles
of the internal labour law.
A substantial number of conventions corresponding to some of those principles
suggests a high degree of detailed regulation provided. In fact most of these
conventions concern details which can find more circumstantial regulation in
international law than it is done in internal labour law, especially in acts of
legislation: A comparison of specific international and internal provisions relating
to the same question can usually indicate that in the scope of their wording they
are almost not different, especially in the respect of a possibility of their application
in internal law. They are of a self-executing character which can be indirectly
proved by the fact that some labour codes prescribe expressis verbis applying the
ILO conventions in specific individual matters not being regulated by internal law. Wording of certain provisions of the ILO conventions can also suggest adopting
a principle of laying down certain rights (or duties) directly for the benefit of
employees (or employers) and of describing situations in which rights or obligations
formulated in the convention are to be regulated in internal law or by other acts
of domestic authorities or other subjects of internal law.
Another legal and dogmatic argument for the proprio vigore effectiveness of
a substantial part of the ILO conventions in the internal relations is also the
fact of their en bloc' ratification by the special ratifying act of the Diet. It can be
also proved by way of entering into an agreement adopted in Poland, ratification
procedures and, especially a „qualified" mode provided for the ILO conventions.
It is implied that internal law has to be brought to conform to the ILO
regulations and conformity to socio-political conditions has to be examined before
and not after ratification.
Some opinions expressed in the doctrine of labour law ought to be rediscussed
as it seems, in light of these findings; it concerns those views Which assume that
provisions of the ILO conventions must be, as a rule, substantiated in internal
laws. It has to be therefore postulated to regulate a relation of international to
internal law in the Polish constitution. The relation of the ILO conventions to
internal labour law can be additionally regulated in labour code, provided the participation
of the Diet in the convention ratification process.
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 45, 1983, z. 4, s. 1-23