Selection of members of the executive authorities of the trade union organisation in the form of indirect elections, as an example of the rules applicable in NSZZ ‘Solidarity’

The election of members of the union organisation's board of directors leaves many ambiguities, for example because of the failure to regulate this procedure in the common rules. We will also find no mention of it in the bill of 23 May 1991 on trade unions 1 , or any other law. On the other hand, this issue can be addressed at internal law level, which is the subject of an analysis in this Article, on the example of the Statute of the SFA ‘Solidarity’.

Introduction

Considerations on how to select members of the executive body of the union organisation, whether in an intermediate or direct form, should be started with reference to Article 1(1)(2) Trade union laws.

Professional union, according to Article 1(2) This bill, is a voluntary and self-government organization of workers, appointed to represent and defend their rights, professional and social interests.

Furthermore, the trade union is independent in its statutory activities from employers, state administration and local government and from other organisations.

But in the paragraph first Trade Unions Act, trade union is defined as the organisation of "work people". The wide coverage of the trade union shows that it is not limited to employees only, but also covers persons who provide work, for example, on the basis of a civil contract relationship.

This issue has been developed in the latest amendment of the Law on trade unions – the Act with 5 July 2018 amending the Trade Union Act and certain other laws 2 – of 1 January 2019 introduces a significant change extending the circle of persons entitled to association in trade unions.

New Article 11 Law on trade unions provides that a worker is a person who performs work (within the meaning of the provisions of the Labour Code) 3 or a person who provides employment for remuneration on a basis other than the employment relationship if he does not employ other persons, regardless of the basis of employment, and has such rights and interests as may be represented and defended by the trade union.

Independence of the trade union

The independence of trade unions consists in the lack of any powers of non-establishment entities vis-à-vis the association to interfere in the freedom of action and supervision or control of those organisations. Thus, for example, the employer does not have any powers of authority or control towards the union organization, even if these behaviours violate, for example, the provisions of its statutes.

According to K. Walczak[4] „The independence of trade unions – in a specific way – is simply the lack of the power of external entities to interfere in the freedom of action of these organisations and to supervise or control them.

For example, the employer does not have any powers of authority or control over union organisations, even in respect of those which, during their activities, violate the provisions of their own statutes. All attempts to violate this independence were met with a very categorical and uncompromising assessment of the Supreme Court.

This view was expressed in the thesis and justification of the resolution with 12 September 1990 5 , according to which the employer is not allowed to perform any inspection functions in respect of the union organisations operating in the company in respect of their compliance with the provisions of the statutes.

This applies, for example, to issues such as the selection of members of the authorities, the shortening or extension of their term of office. This does not mean that the violation by trade unions of the statutes is completely neutral legally.

In certain situations, breaches of the statutes may determine the far-reaching legal consequences."

Internal trade union law

Referring to the above-mentioned position of the Supreme Court to the problem of the defective selection of members of the trade union organisation, the employer is not entitled to take any control or supervisory action. It is up to the competent authorities of that union to assess whether the elections have taken place to harm the internal rules of the trade union.

In order to examine the problem more closely, it is appropriate to refer to the internal rules in force within trade unions.

For example, section 16 The Statute of the NSZZ ‘Solidarity’ (hereinafter: the Statute) provides that the territorial organisational units of the association are the institutional, inter-establishment and regional organisations and other bodies.

For example, if the employer is based in the Silesian Voivodeship, then the Śląsko-Dąbrowski Region of NSZZ “Solidarność” has a supervisory function, coordinates the activities of this union organization, decides on it and can remove it from the register.

Thus, in the case of NSZZZ ‘Solidarity’, the undertaking organisation is subject to the full subordination of the regional organisation in terms of the selection of board members.

Under section 35 The Statute has been determined that the executive authority is elected by the acting authority.

Order section 39 section 1 It follows from the Statute that all members of this union organisation are the authority, and in thought section 50 section 1 all the union authorities come from direct elections, subject to derogation Under section 35 section 5 point 3, that the members of the board of directors of the company are elected by the company meeting of members and delegates.

This demonstrates the clear choice of members of the executive body in an intermediate formula. As a result, it is not clear that the Statute does not allow an indirect option to be chosen as members of the company board of a union organisation (optional through delegates).

Attention should also be paid to section 51 section 1 The Statute, which states that the President of the Executive Authority shall be elected directly by the acting authority. This concludes that there is no possibility of using the intermediate election formula for the election of the President himself.

Another law which is worth recalling for this internal analysis is Resolution No. Regulation (EU) 20/2013 NSZZ "Solidarity" electoral code[6], where Under section 2 section 2 it is indicated that the elections are held by the members' or by the delegates' meetings.

It is decided either by the establishment committee or by the temporary establishment committee (unless a joint meeting of members or delegates has previously taken a resolution on this matter) or by the joint coordination meeting of delegates. The selection is organised by the works committee, i.e.

the management of the union organisation in a direct or indirect procedure (through delegates).

Summary

In summary of this analysis, the authors' opinion concludes that the provisions of the Statute of the NSZZ ‘Solidarity’ as well as the Resolution No. Regulation (EU) 20/2013 are not coherent with each other in terms of holding the election of members of the board of directors of the union organisation NSZZ ‘Solidarity’.

Following this discrepancy, it can be concluded that the President's elections are to be held by direct elections. If this procedure has been breached indirectly, the procedure should be repeated so that the final choice is made in a direct formula.

It is also worth noting that the authorities that constitute a union organisation, when choosing board members in violation of the Statute, expose themselves to possible sanctions by the superior entities.

In other words, the management of the region may suspend, by means of a resolution, the executive and control authority of the undertaking organisation, if it carries out its activities in a manner contrary to the Statute, other provisions of internal union law or resolutions of the higher authorities, setting in advance a period of at least fourteen days to bring that activity into compliance with the law.

In the event of an election in breach of the rules of the Statute, the Management Board of the region shall have competence to annul these elections.

Moreover, it should be added that the performance of activities such as the holding of elections in conflict with the Union's statutes may have far-reaching legal consequences for the trade union organisation's business or its bodies.

For example, a Supreme Court ruling from 16 November 2004 7 , where the question of the protection of the employment relationship of an employee was considered, the chairman of the board of directors of a union organisation registered by an inter-company union organisation which was not entitled to do so in accordance with the statutes in force.

In this case, the Supreme Court stated that if the registration of the trade union organisation was carried out against the rules laid down in the statutes in force in the interinstitutional union organisation, that registration was carried out ineffectively and thus the protection of the employment relationship would not be able to function effectively.

It follows from the above that the consequences of the works of trade union organisations belonging to inter-branch organisations contrary to the statutes may go far beyond those on intra-union grounds.

The potential effect of such actions may be to paralyze the trade union organisation’s business activity or even to consider it non-existent, as in the above example.

Therefore, referring to the above comments on the subject of this study, if it were found that the elections were carried out in a manner contrary to the statutes of the existing trade union organisation, it is potentially possible to bring about a situation where the union bodies selected incorrectly do not have the power to act under the association statute for those bodies, and the actions taken by such an authority could be invalid.

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