ΙΙ. Διαλέξεις Καθηγητών, κ. Leszek Mitrus και Νικόλα Κουντούρη

Η ΕΔΕΚΑ, παραμένοντας πιστή στην προσπάθεια και τη δέσμευσή της να αποτελεί διαρκή δίαυλο διεθνούς επιστημονικού διαλόγου, είχε την τιμή να φιλοξενήσει το τελευταίο διάστημα δύο πολύ γνωστούς Καθηγητές Εργατικού Δικαίου της αλλοδαπής, τον κ. Leszek Mitrus και τον κ. Νικόλα Κουντούρη, οι πολύ ενδιαφέρουσες διαλέξεις των οποίων επί επίκαιρων ζητημάτων του Εργατικού Δικαίου αποτέλεσαν τη βάση για επιστημονικό διάλογο υψηλού επιπέδου με κρίσιμα συμπεράσματα.

Συγκεκριμένα, στις 21/11/2019 ο Καθηγητής Εργατικού Δικαίου στο Πανεπιστήμιο Jagiellonian της Πολωνίας, κ. Leszek Mitrus, ανέπτυξε, στο πλαίσιο του ΠΜΣ Εργατικού Δικαίου της Νομικής Σχολής Αθηνών, το ζήτημα της συλλογικής διαπραγμάτευσης στην Πολωνία. Ο Καθηγητής κ. Mitrus είχε την ευγενή καλοσύνη να μοιραστεί μαζί με τους αναγνώστες του ηλεκτρονικού περιοδικού μας την παρουσίαση της εισήγησης του με θέμα: "Collective representation of employee interests in Poland".

Εισήγηση:

Collective representation of workers’ interests in Poland

The outline:

  • Development of industrial relations in Central Europe after the breakthrough 1989/1990
  • The legal framework of workers’ representation in Poland
  • Position of trade unions in Poland
  • Collective bargaining and collective labour agreement in Poland
  • Closing remarks
  1. Development of industrial relations in Central Europe

after the breakthrough 1989/1990

  • Historical background:
  • 1989/1990 – political breakthrough in Central European countries
  • Since 90s – political and economic transformation (neo-liberal reforms)
  • Re-structurisation of industry, privatisation of numerous state-owned enterprises,
  • Mass unemployment in the 90s,
  • Transition from centrally-planned to free market economy: re-inventing labour law
  • Next stage: association process and then accession to the European Union
  • Workers’ representation:
  • No „real” collective labour law in the communist period
  • After political breakthrough: the need to lay down new legislative framework by the legislature
  • The intention to strenghten collective bargaining
  • The current shape of industrial relations in Central Europe is not a result of the long-term evolution, but legislative decisions taken in the 90s.
  • In practice: dominant role of statutory law, while collective labour agreements play a secondary role.
  • Workers’ representation:
  • Major role of the state (public institutions):
    • The legislator (detailed regulations on labour law)
    • An employer in public sector
    • The Government as an actor of social dialogue (tri-partite bodies)
  • Trade unions as major representation (pluralism)
    • Decentralization of trade union movement
    • De-unionization process
    • Poland: strong political affiliations
  • Development of participatory bodies (works councils), the influence of European Union
  1. The legal framework of workers’ representation in Poland
  • Constitution of the Republic of Poland (1997):
  • Art. 2. The Republic of Poland shall be a democratic state ruled by law and implementing the principles of social justice.
  • Art. 12. The Republic of Poland shall ensure freedom for the creation and functioning of trade unions, socio-occupational organizations of farmers, societies, citizens' movements, other voluntary associations and foundations.
  • Constitution of the Republic of Poland (1997):
  • Art. 20. A social market economy, based on the freedom of economic activity, private ownership, and solidarity, dialogue and cooperation between social partners, shall be the basis of the economic system of the Republic of Poland.
  • Art. 24. Work shall be protected by the Republic of Poland. The State shall exercise supervision over the conditions of work
  • Constitution of the Republic of Poland (1997):
  • Article 59.
  1. The freedom of association in trade unions, socio-occupational organizations of farmers, and in employers' organizations shall be ensured.

    2. Trade unions and employers and their organizations shall have the right to bargain, particularly for the purpose of resolving collective disputes, and to conclude collective labour agreements and other arrangements (…).
  • Constitution of Republic of Poland (1997):
  • 3. Trade unions shall have the right to organize workers' strikes or other forms of protest subject to limitations specified by statute. For protection of the public interest, statutes may limit or forbid the conduct of strikes by specified categories of employees or in specific fields.
  • 4. The scope of freedom of association in trade unions and in employers' organizations may only be subject to such statutory limitations as are permissible in accordance with international agreements to which the Republic of Poland is a party.
  • Sources of Polish labour law:
  • Art. 9 § 1 LC. Whenever reference is made in the Labour Code to labour law it shall mean (1) the provisions of the Labour Code and provisions of other Acts and implementing instruments defining the rights and duties of employees and employers and (2) provisions of collective labour agreements and other collective arrangements, rules and statutes based on the statutory law and specifying the rights and duties of the parties to an employment relationship (…)
  • The legal framework of industrial relations:
  • The Law of 23.05.1991 on trade unions
  • The Law of 23.05.1991 on employers organizations
  • The Law of 23.05.1991 on collective labour disputes
  • Section XI of the Labour Code „Collective labour agreements” (in version of 1994, with further amendments)
  • The legal framework of industrial relations:
  • The Law of 5.4.2002 on European Works Councils (implementation of the EU Directive 2009/38)
  • The Law of 7.4.2006 on informing and consulting employees (implementation of the EU Directive 2002/14)
  • The Law on 25.9.1981 on self-government in state-owned establishments
  • The legal framework of industrial relations:
  • The Law of 24.7.2015 on the Social Dialogue Council
    • (cooperation between the Government, trade unions and employers organizations)
    • Previously: the Law of 6.7.2001 on the Tripartite Commission for Social and Economic Affairs.
  • The Social Dialogue Council:
  • Maintaining social peace, dialogue on social matters, social and economic development
  • Composition:
    • The Government,
    • representative trade unions, i.e. organizations that have at least 300.000 members and are active in various sectors of economy,
    • representative employers’ organizations, i.e. organizations that are composed of employers who employ at least 300.000 employees, of employers that are active in various sectors of economy and have regional structures in at least half of regions
  • Labour market in Poland:
  • High segmentation of labour market.
  • Insiders:
    • employees with full range of employee and social rights, trade unions rights included.
  • Outsiders:
    • Widespread recourse to civil law contracts (bogus self – employment),
    • Various forms of atypical (flexible) employment,
    • Lack of adequate social protection.
  • Current legislative developments:
  • Instead of recognizing employee status of civil law contractors,
  • Granting civil law contractors specific rights:
    • Statutory minimum wage,
    • Social security (contributions comparable to employee contributions),
    • Since 2019 – right to unionize (subject to some conditions).
  1. Position of trade unions in Poland
  • Historical development:
  • During socialist period: trade unions were a „transmission gear” between communist party and working class
  • Unity of trade union movement and numerous competences in employment matters
  • 1980/1981 – independent „Solidarity” trade union movement, interrupted by introducing martial law by communist party on 13.12.1981
  • Law on trade unions and collective disputes of 1982
  • Current Law of 1991 and other statutes
  • Art. 1 of the Law on trade union (definition):
  • A trade union is a voluntary and self – governing organization of working people, founded to represent and defend their rights, as well as occupational and social interests.
  • In pursuing its statutory activities, a trade union is independent from employers, state administration, local government, and other organizations.
  • Individuals entitled to establish trade unions (till 31.12.2018):
  • Art. 2 of the Law
  • All employees, regardless of their employment basis,
  • Members of agricultural production cooperatives,
  • Individuals who perform work on the basis of an agency contract,
  • Individuals seconded to work establishments to serve their substitute military duty.
  • The right to unionize:
  • The 1991 Law refers to the right of „working people”.
  • In practice the right to unionize was granted to employees and some other categories.
  • Self – employed persons and civil law contractors were excluded from the right to unionize.
  • Incompatibility with ILO Convention No. 87: „workers (…) without distinction whatsoever shall have the right to establish and to join (…) organisations of their own choosing (…)”
  • The right to unionize:
  • The judgment of the Constitutional Tribunal of 2nd June 2015 (case K 1/13): the Law on trade unions breaches the Supreme Law.
  • The Constitution protects persons who:
    • carry out paid work,
    • remain in the legal relationship with a subject who is a beneficiary of work,
    • have common interests that can be collectively defended.
  • Necessity to recognize the right of all „workers” to unionize.
  • The right to unionize since 01.01.2019:
  • The amendment to the Law on trade unions of 5.07.2018
  • New art. 11 of the Law: „person who carry out paid activity”
  • (1) Employee or (2) another person:
    • who performs work in return for remuneration on another legal basis,
    • who does not employ other persons,
    • Who enjoys rights and interests which can be collectively represented and defended by trade unions
  • The right to unionize since 01.01.2019:
  • The broadening of the personal scope of application of the right to unionize according to the judgment of the Constitutional Tribunal.
  • Currently „persons who carry out paid activity” constitute the basic category
  • in practice: (1) employees and (2) certain civil law contractors or self-employed persons.
  • Also: volunteers, interns and other persons who perform work without remuneration can join trade unions.
  • Art. 7 on personal scope
    of workers’ representation:
  • Collective matters: all persons carrying out paid activites, irrespective of their membership,
  • Individual matters: members of a trade union and those non – unionized employees who requested representation.
  • Art. 12. ff on creating a trade union:
  • a resolution by at least 10 individuals entitled to set up a union
  • Appointing founding committe,
  • Accepting a statute of a union,
    • For example: the name of the union, the goals and tasks, the union authorities, the rules of acquiring and losing membership, the organizational structure, the method of dissolving the union etc.
  • Obligation to registration an organization with the National Court Register
  • Structure of trade union movement:
  • The Law: broad scope of the right to unionize and determining the structures
  • Structure: nationwide intersectoral union organizations, multi – company regional and sector based organisations, and workplace union organizations
  • Focus on „workplace union organization”
  • union membership rates: 12 – 14 % of the workforce.
    • No unions at all in numerous small and medium enterprises
  • Competences of trade unions:
  • Representative all-national unions (under the Law of Social Dialogue Council):
    • Expressing opinions on drafts of new legal acts
    • Submitting to members of Parliament or other competent authorities the motions to pass or amend the legal acts within the scope of trade union competences
  • Competences of trade unions:
  • concluding collective labour agreements and other group arrangements,
  • Consulting workplace regulations,
  • Conducting collective disputes (including strike actions)
  • Monitoring compliance with labour law (including health and safety)
  • Requesting from employer information necessary to conduct trade union activities,
  • Further competences.
  • Art. 251: „a work establishment’s
    trade union organization”:
  • An organization enjoys the rights of a work establishment’s trade union organization, provided it has at least 10 members who are:
    • Employees or
    • Other than employees persons who has been carrying out work for a period of at least 6 months
  • Twice a year (situation on 30 June and 31 December) an organization informs an employer about a total number of its members
  • Work establishment’s
    trade union organization:
  • If there is more than one trade union in the establishments, each of them protects individual interests its own members
  • Protection of a trade union officer against dismissal
  • Duty of an employer to provide the premises and technical facilities necessary for performing trade union activity
  • Employer’s obligation to release from work the members of trade union management board
  • Work establishment’s
    trade union organization:
  • Several competences in individual matters are granted solely to this type of organization
  • Art. 38 LC: consultation of an employer’s intention to terminate with notice of an open-ended employment contract (or any disciplinary dismissal, art. 52 LC)
  • Art. 108 ff LC: defending and employee against a penalties in case of breach of an order at the establishment
  • Summary on trade unions in Poland
  • Traditionally the strongest workers’ representation
  • broad personal scope of the right to unionize
  • Independence and autonomy of organizational framework
  • In practice trade unions are strong in large state-owned establishement and particular branches (coal mining, health care, education)
  • In practice (almost) no unions in small and medium enterprises
  • Union membership: around 12 – 14 % of workers
  • Summary on trade unions in Poland
  • Focus on work establishment’s trade union organization (at least 10 members)
  • The result: no union protection at all is smaller establishments
  • Exclusive trade union competences to conlude a collective labour agreement or to organize strike action
  • Inadequacy of legal regulations to the reality of current labour market
  • Major question: how to achieve protection of workers in non-unionized establishments?
  1. Collective bargaining and collective labour agreements in Poland
  • Collective bargaining:
  • „Regular” collective labour agreements
    • Section XI of the Labour Code
    • Can be concluded by trade union(s) only,
    • Detailed statutory regulations on concluding collective labour agreements
    • Other collective arrangements based on statute (which can be concluded by trade unions or another employee representation)
  • Collective labour agreements:
  • Art. 240 § 1 LC. An agreement shall provide for:

    1) the terms of an employment relationship’s contents, subject to paragraph 3 below;

    2) mutual obligations of the parties to the agreement including application of the agreement and observance of the provisions thereof.

  • § 2. The agreement may provide for issues other than those mentioned in paragraph 1 above, which are not regulated by the provisions of labour law in an absolutely mandatory manner.
  • § 3. The agreement must not violate rights of third parties.
  • Negotiations:
  • Trade unions only,
  • If there are several organizations at the undertaking – they should create a joint representation
  • If no agreement between trade unions: the representative trade union organization is competent to conclude a CLA
  • Representativity (art. 253 of the Law on trade unions):
  • a membership organisation of a multi-enterprise trade union, representative under the Law on Social Dialogue Council – at least 8 % of the workforce,
  • Other organization that covers at least 15 % of the workforce,
  • If none of the enterprise trade union meets these criteria – the largest organisation at the undertaking
  • The material scope of CLA:
  • In practice: limited due to detailed regulations of the Labour Code and other statutes
  • For example: remuneration for work and other benefits, working time, holiday leave
  • In practice mainly collective agreements at the undertaking, to lesser extent multi-undertaking collective agreements
  • Entry into force of a CLA:
  • On the date determined in the collective labour agreement, though not earlier than the date of registration
  • Registration by:
    • The Minister for Labour and Social Affairs (multi-establishment CLA)
    • The regional labour inspectorate (work establishment CLA)
  • Further issues:
  • Possibility of suspension of the agreement:
    • If required by the financial situation of an employer
    • For a period of up to 3 years
  • Termination of an agreement:
    • By the unanimous declaration of the parties,
    • Upon the expiry of the period for which it has been concluded
    • Upon the expiry of the period of notice served by one of the parties
  • Other (than CLA) collective arrangements:
  • When it is provided by a statute
  • To regulate a specific matter
  • No regulations on negotiations procedure
  • No need to register such an agreement
  • At the level of a particular undertaking
  • Employee representation:
    • a trade union or,
    • an ad hoc non-union employee representation
  • Ad hoc non-union employee representation:
  • If there is no trade union organization at the undertaking
    • intention: limiting managerial prerogatives of the employer,
    • Subsidiary nature (in comparison to trade unions)
  • Competences: concluding an agreement or consultation
  • Selected at the enterprise level, in a manner adopted at the given undertaking
  • No protection against dismissal for ad hoc representatives
  • Several examples of collective arrangements:
  • Anti- crisis agreement on suspending the application of (some) workplace provisions of labour law (art. 91 LC)
  • Agreement on introducing telework at the undertaking (art. 676 LC and following)
  • Agreement on organization of working time, i.e. extending the reference period up to 12 months (art. 129 and art. 150 LC)
  • Several examples of collective arrangements (separated Laws):
  • An agreement on collective redundancies,
  • An agreement on the Social Benefit Fund at the undertaking
  • Law of 2013 on special solutions connected with protection of jobs
    • The setting for economic downtime and reduced working hours (connected with some subsidies from public funds)
  • Workplace regulations:
  • Remuneration regulations (art. 772 LC)
  • Work regulations (art. 104 LC and following)
  • Issued by the employer, but:
    • Remuneration regulations – consent of trade union
    • Workplace regulations – consultation with trade union
  • Obligation for employers who employ at least 50 persons
  • For smaller undertakings: employer’s competence to issue workplace regulations
  • Workplace regulations can be replaced by a collective labour agreement
  1. Closing remarks
  • Weakness of workers’ collective representation in Poland and collective bargaining scheme
  • Statutory preference for workplace unions constitutes one of the reasons of the weakness of union movement
  • In practice no representation of workers in small enterprises
  • Possible legislative steps: the reconstruction of the existing legal framework that focuses on work establishment union organization

Στις 28/11/2019, ο Καθηγητής Εργατικού Δικαίου στο Πανεπιστήμιο UCL του Ηνωμένου Βασιλείου, κ. Νικόλας Κουντούρης ανέπτυξε στους μεταπτυχιακούς φοιτητές του ως άνω μεταπτυχιακού προγράμματος το ζήτημα «Labour, the law, and the fourth industrial (counter-)revolution». Η διάλεξη ήταν πραγματικά άκρως ενδιαφέρουσα, καθώς στη διάρκειά της αναπτύχθηκαν όλα τα σύγχρονα ζέοντα ζητήματα και οι προκλήσεις που αντιμετωπίζει το Εργατικό Δίκαιο, όπως π.χ. τα θέματα των πλατφόρμων εργασίας, των οικονομικά εξαρτημένων εργαζομένων, του χρόνου εργασίας κ.α. Η εν λόγω εισήγηση θα δημοσιευθεί στον Τιμητικό Τόμο του Καθηγητή, κ. Τραυλού – Τζανέτατου.