Social Dialogue

The right to form and join trade unions is enjoyed by persons engaged in gainful employment. A person engaged in gainful employment is:

1. an employee, as well as
2. a person who performs work for remuneration on a different basis than the employment relationship, if they do not employ other persons for such work, regardless of the basis of employment, and have such rights and interests in connection with the performance of the work which can be represented and defended by a trade union.

The material scope of the right of trade union coalition, i.e. the right to form and join trade unions, was significantly expanded by the Act of 5 July 2018 amending the Trade Union Act and certain other acts. The need for such a change was pointed out by the Constitutional Tribunal in its judgment of 2 June 2015, case ref. No K 1/13. The changes introduced by the above-mentioned Act are effective as of 1 January 2019 and provide, among other things, that persons who previously did not have such rights – those employed on the basis of a contract of mandate, a contract for the provision of services, a contract for a specific task, as well as so-called self-employed persons, i.e. those who conduct their own economic activity and provide work largely or entirely for one employer – may associate in trade union organisations. Employees, members of agricultural production cooperatives, persons performing contract work and persons employed under an agency contract may still associate in trade unions.

Old-age pensioners and disability pensioners also have a limited right of coalition under the Trade Union Act. They retain their membership of the trade union to which they belonged during the period prior to their pension and are also entitled to join trade unions. However, they cannot create them. The situation of the unemployed has been similarly shaped – they have the right to retain their membership of trade unions and, if they are not members, to join them in the cases and under the conditions set out in the unions’ statutes. In addition, the Trade Union Act provides for the right to associate in trade unions of the Police, Border Guard, Customs and Penitentiary Service and firefighters of the State Fire Service, as well as employees of the Supreme Audit Office, but subject to restrictions under separate acts.

An amendment to the Trade Union Act, which came into force on 1 January 2019, granted the right to join existing trade unions to volunteers, interns and other persons who provide unpaid work. These individuals, however, are deprived of the right to form trade unions.

A trade union is formed by a resolution on its establishment passed by at least 10 persons entitled to form trade unions. The individuals who have passed a resolution establishing a trade union shall adopt statutes and elect a founding committee consisting of three to seven persons. The trade union is subject to registration with the National Court Register. Registration procedure is free of court fees. The trade union, as well as its organisational units indicated in the statutes, shall acquire legal personality from the date of entry in the register. From that date onwards, the union can carry out its functions and tasks, as well as appear in legal transactions.

Persons who are members of a trade union or who are not such members may not suffer negative consequences for being so. A breach of the principle of equal treatment in employment on grounds of being a member of a trade union, or not being a member of a trade union, or exercising a trade union function, may be regarded as a discrimination resulting in, among other things:

• a refusal to establish or terminate a legal relationship,
• unfavourable determination of remuneration for gainful employment or other terms and conditions of employment or omission in promotion or granting of other gainful employment-related benefits,
• omission in selection aimed at taking part in upskilling training.

An employee who has been the victim of discrimination on the grounds of their status in a trade union is entitled, pursuant to Article 183d of the Act of 26 June 1974 - the Labour Code, to compensation in an amount not lower than the minimum wage regulated by the Minimum Wage Act of 10 October 2002. The provisions of Articles 183d and 183e of the Labour Code shall apply mutatis mutandis to the persons mentioned in Article 3(1) of the Trade Union Act other than employees. When determining compensation in a particular case, the court should take into account the type and intensity of the employer’s discriminatory action and its effects. Pursuant to Article 183e(1) of the Labour Code, the exercise of rights for breach of the principle of equal treatment may not be the basis for unfavourable treatment, and may not result in any negative consequences for the person who has exercised them. Similar protection is also applied, pursuant to Article 183e(2) of the Labour Code, to a person who has provided any form of support to a person exercising their rights for breach of the principle of equal treatment in employment.

The general principle introduced by Article 7(1) of the Trade Union Act provides that, with regard to collective rights and interests, trade unions represent all persons referred to in Article 2(1) and (3) to (6) of the Trade Union Act (i.e. persons engaged in gainful employment, old-age pensioners, disability pensioners, unemployed persons, volunteers, interns and other persons who do unpaid work, persons referred to employers in order to perform substitute service, and officers of the Police, Border Guards, the Customs and Penitentiary Service, the Prison Service, firefighters of the State Fire Service and employees of the Supreme Audit Office) – regardless of their trade union affiliation (general representation). In the field of collective labour law, this type of representation includes, in particular, the possibility to address employers with various demands, opinions or requests that concern the interests of persons in gainful employment, including the negotiation of collective bargaining agreements and collective arrangements.

While with regard to representation in the field of collective labour law, trade unions represent all persons listed in Article 2(1) and (3) to (6) of the Trade Union Act, irrespective of their trade union affiliation, in individual matters concerning the performance of gainful employment, pursuant to Article 7(2) of the Trade Union Act, trade unions represent their members. Nevertheless, a person who is not a member of a trade union may ask the trade union to undertake the defence of their rights and interests against the employer (Article 7(2) of the Trade Union Act).

The rights of trade unions in individual matters relating to the performance of gainful employment include raising reasoned objections when terminating an employee’s contract of employment concluded for an indefinite period of time or expressing an opinion when terminating an employee’s employment relationship without notice.

The most important right of trade unions is the right to negotiate collectively and to conclude collective bargaining agreements, as well as other arrangements provided for by labour legislation.

The group of arrangements other than collective bargaining provided for by labour legislation includes, among others:

• arrangement on the application of the collective bargaining agreement – Article 241¹⁰ of the Labour Code;
• arrangement on the suspension of the application of the collective bargaining agreement – Article 241²⁷ of the Labour Code;
• arrangement on the application of less favourable terms and conditions of employment of employees than those resulting from the contracts of employment concluded with those employees – Article 231a(1) of the Labour Code;
• arrangement on the conditions for the use of telework by the employer – Article 67(1) of the Labour Code;
• arrangement regulating the rules for implementing the process of collective redundancies at the employer – Article 3(1) of the Act of 13 March 2003 on special principles of termination of employment relations with employees for reasons not related to employees;
• arrangement ending an industrial dispute – Articles 9 and 14 of the Act of 23 May 1991 on the resolution of industrial disputes.

Article 2 of the Industrial Disputes Resolution Act grants trade unions the exclusive right to represent the interests of employees and other social groups entitled to initiate collective disputes in proceedings aimed at resolving industrial disputes.

Pursuant to Article 23 of the Trade Union Act, trade unions monitor compliance with labour law, and, in accordance with the rules set out in separate provisions, participate in supervising compliance with the rules and provisions of health and safely at work. Trade unions have the right to intervene when, in their view, the conduct of a state and local government body or an employer, is unlawful or violates the principles of justice. In such a situation, the trade union may request the competent authority to cause the irregularity identified to be rectified in an appropriate manner.

A company trade union organisation is an entity with which the employer is obliged to interact in matters of individual and collective labour law. The powers of a company trade union organisation are only available to those organisations that have a certain minimum number of persons engaged in gainful employment.

Pursuant to Article 25¹(1) of the Trade Union Act, the powers of a company trade union organisation are vested in an organisation with at least 10 members who are:

1. employees of an employer covered by that organisation, or
2. persons, other than employees, engaged in gainful employment and who have provided work for at least six months for an employer covered by that organisation.

The inclusion of persons other than employees in the number of persons conditioning the entitlement of a company trade union organisation was made possible by an amendment to the Trade Union Act adopted in 2018.

As a result of the amendments to the Trade Union Act, which came into force on 1 January 2019, a person who is a member of more than one trade union organisation with an employer can only be included as a member of one trade union organisation designated by that person.

At the same time, the provisions of the amended Trade Union Act introduced a procedure for judicial verification of the size of a company trade union organisation. The employer or the trade union organisation operating at the employer’s premises may raise an objection in writing to the size of the trade union organisation concerned within 30 days from the date of submission of the information by the organisation. If an objection as indicated above is raised, the company trade union organisation against which the objection is raised shall apply to the district court – the labour court having jurisdiction over the employer’s registered office – to determine the number of members as at the last day of the relevant six-month period. A trade union organisation that has not applied to the court within 30 days from the date of the objection shall not be entitled to the rights of a company trade union organisation until this obligation has been fulfilled. Moreover, the company trade union organisation may also request to determine the number of members on its own initiative.

Trade union organisations with the status of company organisations are granted special rights by law, such as:

1. taking a position on individual employee matters within the scope regulated by the labour law and on individual matters of persons engaged in gainful employment within the scope related to the performance of this work – Article 26(1) of the Trade Union Act, e.g.

• raising reasoned objections when terminating an employee’s contract of employment concluded for an indefinite period (Article 38 of the Labour Code);
• raising reasoned objections when terminating an employee’s terms and conditions of employment or pay (Article 42(1) in conjunction with Article 38 of the Labour Code);
• expressing an opinion when terminating an employment relationship with an employee without notice (Articles 52(3) and 53(4) of the Labour Code);
• consenting to the termination of the employment relationship with a woman during pregnancy or maternity leave (Article 177(1) of the Labour Code);
• consenting to the termination of the legal relationship with the trade union activist (Article 32 of the Trade Union Act);

2. taking a position before the employer or a body of the staff self-government on matters concerning the collective interests and rights of persons engaged in gainful employment – this category includes, in particular, powers relating to:

• concluding collective bargaining agreements;
• concluding collective arrangements other than collective bargaining agreements;
• agreeing remuneration regulations;
• agreeing award and bonus regulations;
• agreeing the company’s social benefits fund regulations;
• establishing a list of particularly hazardous or physically or mentally demanding jobs performed by night workers;

3. exercising supervision over the observance in the workplace of the provisions of the labour law, in particular the rules and provisions on health and safety at work;
4. managing the activities of the social labour inspection and cooperating with the state labour inspection;
5. dealing with the living conditions of old-age and disability pensioners.

When there is more than one company trade union organisation at the employer’s premises, each of them defends the rights and represents the interests of its members. Importantly, a person engaged in gainful employment who is not a member of a trade union may request the company trade union organisation of their choice to undertake their defence both in a specific case and in all individual cases requiring the employer’s interaction with the company trade union organisation.

The provision of Article 30(4) of the Trade Union Act provides for the possibility for company trade union organisations to establish joint trade union representation in matters concerning the collective rights and interests of persons engaged in gainful employment.  At the same time, where there are at least two trade union organisations at the given employer’s premises, in matters requiring an arrangement or agreement of positions with these organisations, these organisations shall present a jointly agreed position. The form and manner in which such a position is to be determined and presented are sovereignly decided by the trade union organisations in an arrangement concluded each time for this purpose.

One of the basic powers of trade unions is also their influence on the establishment of so-called company regulations. If there are trade unions with the status of company trade union organisations at the employer’s premises, agreeing the company regulations shall be done in consultation with these organisations. This is provided for in Article 30(6) of the Trade Union Act. According to its wording, if, in the matter of establishing:

1. remuneration regulations,
2. award and bonus regulations,
3. the company’s social benefits fund regulations,
4. annual leave plan or work regulations,
5. the settlement period referred to in Article 135 § 2 and 3 of the Labour Code,
6. the list of works referred to in Article 151⁷(4) of the Labour Code,
7. the individual working time schedule referred to in Article 8(2) to (4) of the Act of 16 April 2004 on the working time of drivers

- trade union organisations or representative trade union organisations within the meaning of Article 25³(1) or (2) of the Trade Union Act, each of which unites at least 5% of the employees employed by the employer, fail to present a jointly agreed position within 30 days of the date on which the employer provides them with the document, decisions on its establishment are taken by the employer, after considering the separate positions of the trade union organisations.

An inter-company trade union organisation is an organisation covering more than one employer.

The provisions of Articles 25¹–33¹ of the Trade Union Act apply to such organisations. Inter-company trade union organisations are entitled to such powers as are available to company trade union organisations. In determining the number of members of an inter-company trade union organisation and in determining the right to exemption from the obligation to work for a term of office on the board of a company trade union organisation, the number of members of the inter-company trade union organisation employed by all employers covered by the organisation shall be taken into account.

The Trade Union Act provides for a number of punitive provisions. First of all, according to Article 35(1) of the Trade Union Act, anyone who, in connection with their position or function, commits the following acts shall be liable to a fine or a restriction of freedom:

1. obstructing the lawful establishment of a trade union organisation,
2. obstructing the exercise of trade union activities carried out in accordance with the provisions of the Act,
3. discriminating, contrary to the prohibition referred to in Article 3(1), for being a member of a trade union, for not being a member of a trade union or for exercising a trade union function,
4. failing to comply in good time with the information obligation referred to in Article 26¹(1),
5. failing to comply in time with the obligation to negotiate with the trade unions referred to in Article 26¹(3),
6. failing to comply with the obligation to deduct from a person’s salary the trade union membership fee in the amount declared by that person or the obligation to transfer without delay the amount of the trade union dues collected, as referred to in Article 33¹, to a bank account or an account in a cooperative savings and credit union indicated by the company trade union organisation,
7. failing to comply with the obligation to bear the costs referred to in Article 34¹(1) in the relevant proportion indicated in Article 34¹(1), taking into account Article 34¹(4).

A person who, in connection with their trade union function, commits the following acts shall also be subject to criminal liability in the form of a fine in accordance with Article 35(21) of the Trade Union Act:

1. failing to notify the competent court in due time of the amendment of the statutes referred to in Article 16,
2. contrary to Article 24(1), using the income from a trade union’s business activities for purposes that do not contribute to the fulfilment of the trade union’s statutory tasks or distributing it among the union’s members,
3. in order to obtain the rights of a company trade union organisation, a representative company trade union organisation, an inter-company trade union organisation or a representative supra-company trade union organisation, in the information referred to in Article 25¹(2) or (3) or in Article 34¹(2) or in the application referred to in Article 25²(2), stating or, pursuant to Article 34²(1), indicating a number of members of the trade union organisation higher than the actual number.