After 30 years of operation of the Act on collective labour disputes and the amendment of the Act on the Council of Social Dialogue and other institutions of social dialogue introduced a draft amending in abbreviated form as Draft Act on collective labour disputes.
Constitution of Poland under Article 59 guarantees freedom of association in trade unions and employers' organisations. This right belongs to the fundamental freedoms of man and citizen. However, it is regulated by laws as well as international law.
The majority of the changes are assessed positively, including the applause is primarily due to the introduction of preventive mediation. It is controversial not to specify in the provisions of the dispute.
Scope of trade union freedoms
Trade unions and employers and their organisations have the right to negotiate, in particular to resolve collective disputes, and to conclude collective agreements and other agreements. Trade unions have the right to organise employee strikes and other forms of protest within the limits laid down in the Act.
For reasons of public interest, the Act may restrict or prohibit the conduct of a strike in respect of certain categories of workers or in certain areas.
The scope of freedom of association in trade unions and employers' organisations and other union freedoms may be subject to only such statutory restrictions as are permitted by binding international agreements.
Gaps in the Collective Dispute Resolution Act
Regulation of standards contained in the Constitution of the Republic of Poland is Act dated 23 May 1991 on collective dispute resolution (Journal of Laws of 2020, item 123), Hereinafter referred to as the ‘Act of Common Fisheries’.
According to Article 1 This law, a collective dispute between employees and employers may concern working conditions, wages or social benefits and rights and freedoms.
It is not permissible to pursue a collective dispute in order to support individual employee requests, if it is possible to resolve them in proceedings before the dispute resolution body for workers' claims.
Existing provisions of the Law on Common Fisheries exhaustively they define the subject matter of a collective dispute, but disputes are often initiated in all cases involving collective rights and interests of workers.
Although the Act does not allow this, the interpretation of the scope of the dispute adopted by the trade unions is very broad. The parties to the collective dispute shall be: employees – represented by trade unions and employers who may be represented by competent employers' organisations.
The provisions in force grant the right to initiate and pursue collective disputes between each trade union organisation. This situation, with the multiplicity of trade unions in the workplace, makes it much harder to reach an agreement.
thirty-year The period of validity of the Law on Governments indicates the need to amend its provisions. This is reflected both in the demands of trade unions and employers' organisations (collective parties), which point to the problems of interpretative rules in the course of disputes and mediators conducting mediation proceedings in collective labour disputes.
The direction of change has been determined by the needs of the social partners (the parties to disputes) and a country whose harmonious development depends on the level of social peace guaranteed by the use of mandatory, consensual collective dispute resolution procedures and social conflicts. These procedures should be transparent, easy to apply and interpret so as not to create additional tensions between the parties to the dispute.
Proposals for amendments
The proposed amendments aim to adapt the legislation to the changing market situation and to prevent actions that are perceived as mutually acceptable to relations between employers and trade unions representing the interests of workers.
- Departure from exhaustive the definition of the subject matter of the collective dispute.
Existing provisions of the Law on Common Fisheries exhaustively they define the subject matter of a collective dispute, but disputes are often raised in all cases involving collective rights and interests of workers.
Unfortunately, often the interpretation of the scope of the dispute taken by the parties is different, which creates problems already at the beginning of negotiations.
Departure from exhaustive the definition of the subject matter of the collective dispute will result in the law laying down rules for the initiation, conduct and termination of the collective labour dispute, which, as the proposed definition, will be a dispute between persons engaged in gainful employment with the employer or employers for collective rights or union freedoms, as well as for professional, economic or social collective interests or rights related to the performance of the work.
Thus, the dispute can be held on any collective matter in which trade unions represent those doing work.
- Introduction of the requirement to establish a common representation of trade union organisations necessary to initiate and pursue collective disputes.
The provisions in force grant the right to initiate and pursue collective disputes between each trade union organisation. This situation, with the multiplicity of trade unions in the workplace, makes it much harder to reach an agreement.
The employer sometimes reaches agreement with most trade unions, but the dispute continues one or several organisations have not reached an agreement.
Often, the employer is in a collective dispute with several or even several trade union organisations, each of which can make different demands, causing problems in agreeing on the common position of the parties.
In order to harmonise collective labour law rules and in view of the need to support representative organisations, as advocated by the social partners, it is proposed to introduce an obligation to establish a coalition of unions in the ongoing dispute.
In this context, it is proposed to apply the standards for the selection of representations that apply to the negotiation and conclusion of collective agreements (Article 241¹⁶ Act dated 26 June 1974 – The Labour Code), i.e. the introduction of a notification procedure for requests made for joint negotiations; in the absence of a common representation agreement, it will be necessary to participate at least one representative organisation according to Article 252-253 Act dated 23 May 1991 on trade unions (Journal of Laws of 2022, item 854).
- Introduction of a judicial review of the legality of the strike referendum.
The provisions of the Law on Commons do not provide for the possibility of examining the legality of the dispute or strike. In view of the resignation of the subject matter of the dispute, it will not be necessary to examine the compliance of the proposed requests with the law, but, as the practice shows, it is appropriate to introduce the possibility of monitoring the legality of voting on the announcement of a strike (the strike referendum).
- Determination of the duration of the dispute.
In the current state of the law, it is not possible to determine the maximum duration of the dispute and no effective form of termination has been indicated. Often, once the dispute has started, the parties do not take further action to resolve it.
This situation causes the dispute to take place for several months or years, even though the parties do not take any action. Permanent staying in collective disputes does not serve social dialogue and undermines the possibility of conducting substantive negotiations.
A collective dispute should take place as quickly as possible and the parties should be determined to reach agreement. It is therefore proposed to specify precisely the duration of the dispute (9 months – with the possibility of additional extension by 3 months).
Within this period, the dispute should be concluded by drawing up the relevant documents or, after that date, by law.
- Changes in the list of mediators at the Minister of Family and Social Policy.
Given that, in the current state of the law, issues relating to the functioning of the list of mediators with the Minister for Labour and the Statute of the Mediator itself are not clarified in order to strengthen the position of mediator, appropriate changes to the standards of the mediator's work and the inclusion of mediators in the list of mediators are necessary.
The list shall be drawn up by the Minister responsible for Labour on the basis of a request from the person concerned. The Act will specify the criteria for entry in the list. In addition, the list of social partners, represented in the Council of Social Dialogue, was abandoned in relation to the Law on Commons.
- Introduction of the so-called preventive mediation.
Pursuant to the current Law on the Commons, negotiations to resolve a collective dispute by agreement shall be conducted only by the parties to the dispute, without the participation of persons third.
Consequently, the parties, moving to the mediation stage, may already be so conflicting that in many cases there is no possibility of reaching an agreement.
Therefore, in order to allow for an agreement to be reached at the earliest stage of the dispute, it is proposed to introduce an institution of the so-called preventive mediation to prevent the escalation of the conflict during negotiations.
This will enable parties to benefit from professional assistance from a person who guarantees impartiality and helps to reach an earlier agreement, which in turn can increase the number of agreements concluded at this stage of the dispute.
- Increase expenditure limits for the functioning of the Social Dialogue Council and the Provincial Councils for Social Dialogue.
On 9 February this year Communication from the President of the Central Statistical Office on average remuneration in the national economy was published In 2021, which provides the basis for the payment of lump sums to the members of the Social Dialogue Council, the Secretaries of the Council's Bureau and the Chairs of the Council's Problem Teams from March onwards this year (term defined by law).
Following the analysis of the data, the Social Partnership Centre "Dialog", serving financially, the Council stated that it was close 10% an increase in the lump sum base, which means that the financial plan currently lacks the amount necessary for the implementation of the payments and an increase in the budget for the payment of the lump sum.
In addition, according to Article 50(1c) Act dated 27 August 2009 on public finances (Journal of Laws of 2021, item 305, as amended), The Council of Ministers shall present the Sejm, three years before the end of the period referred to Under section 1a, draft amendment of the Act setting maximum limits for expenditure of public finance sector entities, expressed in amounts, for subsequent 10 the financial years of implementation of the Act.
Business opinions
The majority of the changes are assessed positively, including the applause is primarily due to the introduction of preventive mediation. It is controversial not to specify in the provisions of the dispute. According to entrepreneurs Polish Confederation Lewiatan This may increase the number of collective disputes raised.
The dispute may be held on any matter in which the trade unions represent persons doing work.
However, the result of such a regulation may be to exacerbate legal disputes already at the negotiating stage, as the general provision may extend the subject matter of the dispute to include issues of organisational change, restructuring of employment, and finally to interpret the compact agreements.