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Workplace Representation

Until 2006 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, which, following a decision by the constitutional court, must be elected by the whole workforce. However, their influence is limited and most of the works councils that were set up initially have ceased to exist.

Workplace representation in Poland is primarily through the workplace trade union organisations. Under the 1991 Trade Union Act, unions are required to “represent the 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 a survey by the national statistical office GUS shows that there were 12,200 local union organisations in Poland in 2018 – 9,800 operating in a single company or workplace and 2,400 operating in more than one company.[1]

 

However, the relatively low level of union membership in Poland means that most employees are in workplaces where there is no union presence. The CBOS survey on union membership published in 2019 (see section on trade unions) found that in September 2019, 18% of respondents were employed in workplaces with one union and 17% in workplaces with more than one. However, 53% were employed in workplaces where there was no union and 12% did not know whether there was a union or not.[2] The CBOS survey identified a major difference between publicly owned institutions and companies, where 77% of respondents reported the presence of at least one union, and purely private companies, where only 12% of respondents said that one or more unions were present. In companies owned jointly by public and private sector bodies the proportion reporting one or more unions was 18%.

 

An important change in unions’ right to represent workers at the workplace was introduced with a change in the law on trade union which came into effect on 1 January 2019. Workplace unions can now recruit and organise not just employees but also workers on other contracts who have worked for the organisation for six months.

 

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. 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 provided that where an existing binding agreement providing a comparable level of information and consultation was in force before the law came into effect, there was no need to set up a works council. However, in other cases the legislation potentially created a new representative structure in Poland.

 

When first passed, the legislation left the choice of the members of the works council in the hands of the unions. However, following a decision by the Constitutional Court in 2008, that this this breached the right of equal treatment and the right of employees not to join a union, this was changed. The new legislation, which came into force in July 2009 requires the works councils to be elected by the whole workforce (for details see section on elections below.)

 

In the years immediately after the initial legislation was passed, a large number of works councils were set up, and, by the end of 2009, 3,031 had been established. However, many were not renewed after their first four-year term, and currently there are fewer than 500.[3] Some of the reasons for this sharp fall were identified in a survey of 242 works councils in 2015.[4] This found that in a number of cases, where unions were strong, it was felt that their strength meant that works councils were not necessary; in others it was difficult to find candidates; and in others organisational problems or the limited powers of the works council had led to the works council not being renewed.

 

Whatever the reason for the fall in the numbers of works councils in Poland, the around 500 which are currently operating represent only a small proportion of the around 19,000 companies in Poland with 50 or more employees, the threshold for setting up a works council.[5] There are no figures on the number of employees covered by works councils.

 

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.[6]

 

The overall extent of employee representation at the workplace is indicated by the results of Eurofound’s 2013 European Company Survey. These show that, in 2013, around a quarter (24%) of establishments in Poland with at least 10 employees had some form of official employee representation, either through the union, a works council or a similar body in the public sector. This is below the EU28 average of 32%. As elsewhere in Europe, larger organisations were much more likely to have such a structure than smaller ones. The survey shows that 82% of establishments with more than 250 employees had representation, and 61% of those with between 50 and 249 employees. In smaller workplaces in Poland, those with between 10 and 49 employees, the survey indicates that just over one in six (18%) had employee representation.[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).

 

The right to set up a works council depends on the number of workers employed. Works councils can be established in all companies and organisations with economic activities with 50 employees or more, other than state-owned companies with workers councils (see above). Different workplaces can be counted together, provided they belong to a single employer. The calculation is based on those working with an employment contract and therefore excludes those working on the basis of civil contracts, who may be doing very similar work. It is a headcount figure – full-time and part-time employees count the same – based on an average over the previous six months, unless the organisation has not existed for that long. Agency workers are not included in the calculation, other than in the agencies where they work.

 

However, crucially, a works council can only be set up at the written request of at least 10% of the workforce.

 

The size of the works council depends on the number of employees, as set out below. All works council members are employees.

 

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. The legislation also states that the works council must elect a chair from among its members and draw up its own rules of procedure, but again does not go into details.

 

In practice, the 2015 survey of works councils, referred to above, found that fewer than a third of works met as often as once a month, while some only met twice a year. They typically reached an agreement with the employer on how they would be informed and consulted.[8]

 

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 unions’ proposals.

 

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

 

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”.

 

Information should be provided in a way and at a time which allows the works council to analyse the information and prepare for consultation. And consultation should take place in “good faith” and with the aim of reaching agreement between the employer and the works council.

 

This is in line with the EU framework directive on information and consultation but does not go beyond it.

 

In practice, the 2015 survey finds that information is most frequently provided on the current financial situation of the company (in 85% of cases) and less frequently on expected changes in work organisation, company development strategies and expected changes in employment (all 69%). Only in half the cases (50%) is the works council informed on expected changes in wages. Consultation happens less frequently. In just over half the cases is the works council consulted on changes in work organisation (55%) and expected changes in employment (52%), and even less frequently on rules on remuneration, changes in the company’s structure and company development strategies (all 38%).

 

These figures may overstate the situation, as it is likely that only the more active works councils responded to the survey.

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.

 

An election to chose members of the works council must be called by the employer, once 10% of the workforce have requested this

 

All adult employees, including senior management staff, can vote in the election. However, to stand as a candidate, an employee must have worked for the employer for at least a year, unless the organisation has not existed for that long. Senior management staff, such as the chief accountant and main legal adviser are also prevented from standing. 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. Unions have no specific nominating rights. The cost of the election is borne by the employer.

 

In practice, the 2015 survey of works councils indicates that, among those responding, 55% were union members.

 

The term of office is four years. However, members can be removed from their position on the works council if at least 50% of the workforce with at least six months’ service request this.

 

Protection against dismissal

 

Some trade union representatives, who are members of the executive committee of their local union organisation (which must have at least 10 members), have protection against dismissal and a unilateral worsening of their pay and conditions. This cannot take place without the approval of the local union body.

 

This protection lasts during their period of office and for a maximum of a year afterwards. But the number protected depends on the number of members 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 15% of the employees as members, or 8% if the local union organisation belongs to one of the three nationally representative unions, NSZZ Solidarność, OPZZ and FZZ, or, if no union meets these requirements, is the union with most members among the workers.

 

Unions must provide the employer with their membership numbers and the 2019 legislation requires unions to provide these more frequently and gives employers the right to ask a court to verify the figures.

 

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 and a worsening of conditions.

 

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 also have protection against discrimination by the employer. They 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 a “representative union” at company or workplace level have time off rights as set out in the table below, during their period of office. The trade union can request that this leave is paid.

 

As with protection against dismissal, a representative union at this level is either a union organisation belonging to one of the three nationally representative unions (NSZZ Solidarność, OPZZ and FZZ) with at least 8% of the workforce in membership, or a union organisation outside the three main unions with at least 15% of the workforce in membership, or the largest union in the workplace or company.

 

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 staff. 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 changes to trade union law, which came into effect in January 2019, allow for collective agreements on time off for trade union duties. However, the practical implications of this are unclear.

 

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 and the individual concerned is not already benefiting from other time-off rights.

 

Works councils also have the right to be assisted by a specialist, although the legislation does not specify who should pay.

 

Training rights

 

There are no specific training rights. This is the case both for members of the executive committee of the local union organisation and for members of the works council

 

Representation at group level

 

The law allows for unions to be set up which cover several employers, and the executive members of these organisations have protection against dismissal and rights to paid time off on a comparable basis to that provided to local union organisations in a single workplace or company.

 

However, there is no works council structure above that of a single company.

[1] Partnerzy dialogu społecznego - związki zawodowe i organizacje pracodawców, GUS, 27.08.19 https://stat.gov.pl/obszary-tematyczne/gospodarka-spoleczna-wolontariat/gospodarka-spoleczna-trzeci-sektor/partnerzy-dialogu-spolecznego-zwiazki-zawodowe-i-organizacje-pracodawcow-wyniki-wstepne,16,1.html  (Accessed 08.06.2020)

[2] Związki zawodowe w Polsce, Nr 138/2019, Centrum Badania Opinii Społecznej (CBOS), November 2019  https://www.cbos.pl/SPISKOM.POL/2019/K_138_19.PDF (Accessed 07.05.2020)

[3] In fact, there are likely to be fewer than 484. This is the total number of works councils that had been set up from the start of 2016 to 1 April 2020, as published by Department for Dialogue and Social Partnership in the Ministry of Family, Labour and Social Policy. Works councils set up before 2016 would have ceased to exist by April 2020, unless they had been renewed. Dane dotyczace rad pracownikow http://www.dialog.gov.pl/dialog-krajowy/informowanie-i-konsultowanie/rady-pracownikow/ (Accessed 24.06.2020)

[4] The failure of a new form of employee representation: Polish works councils in comparative perspective by Katarzyna Skorupińska, in European Journal of Industrial Relations, 2018, Vol. 24(2) 163– 178

[5] Company numbers for 2017 from Eurostat: Annual enterprise statistics by size class

[6] For further details on workplace representation see i.a. The influence of EU Law on Employees’ Involvement in Poland by Skupien D., in R. Blanpain, M. Tiraboschi (eds) The Global Labour Market: From Globalization to Flexicurity, Bulletin of Comparative Labour Relations 65/08. L. Mitrus, Works Councils in Poland: Problems of Informing and Consulting Employees in: Workers’ Representation in Central and Eastern Europe. Challenges and Opportunities for the Works Councils System, ed. R. Blanpain, N. Lyutow, Alphen aan den Rijn 2014.

[7] Eurofound (2015), Third European Company Survey – Overview report: Workplace practices – Patterns, performance and well-being, Figures for Table 44

[8] The failure of a new form of employee representation: Polish works councils in comparative perspective by Katarzyna Skorupińska, in European Journal of Industrial Relations, 2018, Vol. 24(2) 163– 178

L. Fulton (2021) National Industrial Relations, an update (2019-2021). Labour Research Department and ETUI (online publication). Online publication available at http://www.worker-participation.eu/National-Industrial-Relations.