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Workplace Representation

Until recently unions provided the only legally constituted representation for employees at the workplace. However, legislation implementing the EU directive on information and consultation provides for the creation of works councils and large numbers have been set up. Initially, where unions were present, they could dominate the choice of works council members, but this arrangement was judged unconstitutional and new rules mean that works councils must be elected by the whole workforce.

 

 

Workplace representation in Poland is primarily through the workplace trade union organisations. Under the 1991 Trade Union Act, unions are required to “represent rights and collective interests of all employees regardless of their trade union membership”. Local unions can be set up with as few as 10 members and there are around 25,000 local union organisations in Poland.1 However, the relatively low level of union membership in Poland means that the majority of employees are in workplaces where there is no union presence. The CBOS survey on union membership published in 2012 (see section on trade unions) found that in March 2012, 17% of respondents were employed in workplaces with one union and 18% in workplaces with more than one. However, 56% were employed in workplaces were there was no union and 9% did not know whether there was a union or not.2

However, in addition to representation through the local union, legislation introduced in 2006 provided for the establishment of works councils in companies with more than 50 employees (initially 100 for a transitional period until March 2008). This legislation was introduced to implement the EU directive on providing a national framework for information and consultation (2002/14/EC) and the powers of these works councils are limited to receiving information on economic issues and being consulted on employment and work organisation issues – entirely in line with the directive. The Polish legislation implementing the directive specifically provides that where there is an existing agreement providing a comparable level of information and consultation, there is no need to set up a works council, but in other cases it potentially creates a new representative structure in Poland.

 

 

The situation has been complicated further by a change in the way that members of the works council are to be chosen. Initially the legislation stated that where there were “representative” unions in the company – defined as having at least 10% of the employees as members, or 7% if the local union organisation belonged to one of the three nationally representative unions, NSZZ Solidarność, OPZZ and FZZ – the members of the works council were chosen by the unions. Only where representative unions were not present, or where the unions could not agree on the membership of the works council, would works councils be elected. However, on 1 July 2008 the Constitutional Court ruled that this legislation was unconstitutional as it breached the right of equal treatment and the right of employees not to join a union, and needed to be replaced.

 

 

New legislation was passed on 22 May 2009, which came into force on 8 July 2009. Under it works councils were in future to be elected by the whole workforce (for details see section on elections below.) Existing works councils chosen under the previous procedure would not be required to stand down, although, as before, there is a procedure to remove existing members if enough employees wish it (see below.)

 

 

It is not clear how much difference these changes will make in practice. The list published by the ministry of labour and social policy shows that by the end of August 2012 there were 3,354 works councils in Poland.3 However, the vast majority of these had been set up before the law changed: only around 300 works councils were set up in the period July 2009 to December 2012, although some existing works councils had been re-elected. The lists published by the ministry in May 2009, the last before the rules changed, show that almost three-quarters of the works councils (72%) were set up in companies and organisations where there already were representative trade unions and only 28% of works councils were in companies without representative unions.4

The evidence provided by these figures that most works councils have been set up where unions are already present is supported by a 2007 study, which found that, in workplaces without unions, employees rarely took the initiative to set up works councils.5 Overall works councils only exist in around 9% of the companies falling within the scope of the legislation (figures for 2010).6

Other pieces of legislation also refer to the possibility of setting up non-union representative structures. This is the case, for example, of the law on large-scale redundancies passed in 2003. This states that where there is no union the right to consultation is given to “representatives of employees appointed in accordance with a procedure adopted by a given employer”. There is a similar procedure where employers are seeking to suspend contractual rights other than those in collective agreements. However, here, in contrast to the situation for works councils, the legislation does not lay down any further rules as to how these representatives should be chosen.

 

 

There are also “workers’ councils” in some state-owned enterprises, theoretically with wide powers (see section on board level representation). In practice the main role in these companies is now played by the unions and the number of bodies covered by this legislation continues to fall.7

Numbers and structure

 

 

It is up to the union to decide most of the details of its workplace organisation and structure, which are determined by its statutes. However, the legislation does cover the number of union representatives who are released from normal duties and the number of union representatives who enjoy protection against dismissal based on the number of union members (see below).

 

 

There is a right to set up works councils in all companies and organisations with economic activities with 50 employees or more, other than state-owned companies with workers councils (see above). Among the 3,354 set up by the end of December 2012, almost two-thirds (64%) were in companies and organisations with between 50 and 250 employees, 17% were in companies with between 251 to 500 employees and 15% in companies with more than 500 employees (in 4% of the cases the number of employees could not be calculated.)8

The numbers of members, who are all employees, are set out below.

 

 

Number employed

 

 

Number of members

 

 

50-250

 

 

3

 

 

251-500

 

 

5

 

 

More than 500

 

 

7

 

 

 

The works council should meet for the first time within 30 days of its election, but otherwise the legislation does not state how often it should meet.

 

 

Tasks and rights

 

 

The legislation states that the rights of workplace trade union organisations cover: matters concerning individual employees, employees’ collective rights and interests, the observance of employment law provisions, co-operation with the labour inspectorate and the position of former employees who are now pensioners. Trade unions also have the exclusive right to sign collective agreements and to organise industrial action.

 

 

The union’s information rights cover the transfer of the business and actions likely to lead to changes in employment conditions and information relating to working conditions and the rules on pay. For bargaining purposes unions also have rights to information on the economic situation of the business (in particular the information provided to the Central Statistical Office - GUS).

 

 

Where there is a danger to health the workplace union organisation can inform the labour inspectorate and ask the employer to act. The employer should respond to the request within 14 days.

 

 

Workplace unions, or some other representative body (see above), should be consulted in the case of large-scale redundancies and ideally the employer should reach agreement with them. However, if agreement cannot be reached, the employer should take account “where possible” of the union’s proposals.

 

 

Rules on pay and bonuses should by law be agreed with the union, as should the rules for payments made from any internal social fund. Changes affecting employment conditions should also be negotiated with the union, although the employer can act without an agreement after 30 days.

 

 

As noted in the section on collective bargaining, in practice many of these rights are ignored by employers particularly in smaller companies.

 

 

The works council’s rights are limited to the information on “recent and probable development of the employer’s activities and economic situation” and information and consultation on “the situation, structure and probable development of employment”, as well as measures planned to maintain staffing levels, together with “measures likely to lead to substantial changes in work organisation”. This is fully in line with the EU framework directive on information and consultation.

 

 

Election and term of office

 

 

The election and term of office of local trade union representatives is not fixed in the legislation and is up to the union to determine. Within NSZZ Solidarność, the term of office is four years.

 

 

Legislation introduced in 2009 has changed the arrangements for the selection of the members of the works council. While under the original 2006 legislation members of the works council were only elected by the workforce if there was no representative union present or if the representative unions could not agree (see above), under the 2009 legislation there must always be an election.

 

 

The current rules for the election are that it must take place provided at least 10% of the workforce request it. In companies with between 50 and 100 employees, 10 employees must propose the candidates, and in companies with more than 100, the threshold is 20 employees. The cost of the election is borne by the employer.

 

 

Members can be removed from their position on the works council if at least 50% of the workforce make this request for at least six months.

 

 

Protection against dismissal

 

 

Some trade union representatives, who are members of the executive committee of their local union organisation, have protection against dismissal and a unilateral worsening of their pay and conditions during their period of office and for a maximum of a year afterwards. But the number depends on the number of members in the workplace – there is a minimum of 10 members before the rights come into effect – and whether or not the union is a “representative” trade union in the workplace. A representative trade union in this case is a union that has at least 10% of the employees as members, or 7% if the local union organisation belongs to one of the three nationally representative unions, Solidarność, OPZZ and FZZ. If no unions meet these requirements, the representative union in the workplace is the union with most members among the employees.

 

 

For representative unions the number of executive committee members with protection against dismissal are as follows (although the total cannot be larger than the number of members of management):

 

 

Fewer than 21 members

 

 

2 representatives

 

 

21 – 50 members

 

 

2 plus 1 per each 10 members

 

 

51– 150 members

 

 

2 plus 1 per each 20 members

 

 

151– 300 members

 

 

2 plus 1 per each 30 members

 

 

301 – 500 members

 

 

2 plus 1 per each 40 members

 

 

500 plus members

 

 

2 plus 1 per each 50 members

 

 

Union that are not representative have the right to have one member of their executive committee protected against dismissal.

 

 

There is also specific protection against dismissal when a union is first founded in a workplace. The founding committee can identify three members who have this protection for six months after the founding committee is established.

 

 

Finally protection against dismissal also extends to employees who hold an elected office in the union outside the workplace and who are released from their normal work on a paid or unpaid basis. This lasts during the period of their release from work and for a year afterwards.

 

 

In practice there have been a number of cases where trade union representatives have been victimised by employers, because of their position.

 

 

Works council members may not be dismissed nor have their pay or conditions unilaterally worsened, unless the works council agrees.

 

 

Time off and other resources

 

 

All employees have a right to be released from normal duties to fulfil their trade union functions, although it is not required that this be paid except where it is a temporary activity which cannot be undertaken outside work time.

 

 

In addition, members of the executive committee of the local union have time off rights as set out in the table below, during their period of office. The trade union is able to request that this leave is paid. The number of individuals entitled to time off and the amount of time off provided both depend on the number of members and the number of individuals is subject to the limit that the total entitled to time off cannot exceed the number of management. The details are as follows:

 

 

Less than 150 members

 

 

1 representative with the same number of hours per month, as there are members

 

 

150 – 500 members

 

 

1 representative – full-time

 

 

501 – 1,000 members

 

 

2 representatives– full-time

 

 

1,001 – 2,000 members

 

 

3 representatives– full-time

 

 

2,000 plus members

 

 

3 representatives – full-time plus one for each additional 1,000 members

 

 

The workplace union organisation is also entitled under legislation to “the necessary premises and technical facilities required for carrying out its activities”, although the employer may request payment for this.

 

 

Works council members have the right to paid time off to carry out their duties, if these cannot be undertaken outside working time. Works councils also have the right to be assisted by a specialist, although the legislation does not specify who should pay.

 

 

Representation at group level

 

 

The law allows for union organisation across several workplaces. And in this case the employer pays the time off of the representatives.

 

 

Legislation does not provided for a group level structure for works councils.

L. Fulton (2013) Worker representation in Europe. Labour Research Department and ETUI. Produced with the assistance of the SEEurope Network, online publication available at http://www.worker-participation.eu/National-Industrial-Relations.