Pillar I: The state’s duty to protect human rights
1. Regulations relating to business and human rights under Polish law [page 9]
The principles of labour law also include collective rights, namely the freedom of association of employees and employers (Article 18) and the right of employees to participate in the management of the work establishment (Article 18).
Prevention of economic exploitation of children [page 12]
Freedom of association is guaranteed by the provisions of the Constitution of the Republic of Poland (Articles 12 and 59) and legislation, in particular the Act of 23 May 1991 on Trade Unions (Journal of Laws of 2015, Item 1881). Poland has ratified the basic acts of international law on freedom of association, namely the International Covenant on Economic, Social and Cultural Rights (Article 8), the European Social Charter (Articles 5 and 6), and ILO Conventions Nos. 87 and 98. According to Article 3 of the Act of 23 May 1991 on Trade Unions, no person should bear negative consequences of membership or non-membership in a trade union or of holding a function in a trade union. In particular, this cannot constitute a condition for entering into an employment relationship, maintenance of such a relationship, or promotion.
In accordance with Article 35(1)(c) of the Act on Trade Unions, discrimination against an employee because of his or her membership in a trade union, non-membership in a trade union, or the holding of a trade union function may result in criminal liability.
The Labour Code prohibits the unequal treatment of employees with respect to establishing and terminating an employment, terms of employment, terms of promotion, as well as access to training in order to improve professional qualifications, in particular on the grounds of trade union membership (Chapter II a, Equal Treatment in Employment). An employee may seek compensation from his or her employer before a court of law for a violation of the principle of equal treatment in employment, which cannot be lower than the minimum remuneration for work stipulated in separate provisions.
In addition, Article 183e of the LC provides for a mechanism of protection against the negative consequences of exercising employee rights or supporting an employee who has been treated unequally, e.g., on the grounds of his or her trade union membership. According to Article 183e § 1 of the Labour Code, the fact that an employee has exercised his or her rights when there has been a violation of the principle of equal treatment in employment may not constitute a grounds for disadvantageous treatment of such employee and may not result in any negative consequences towards the employee. In particular, it may not constitute grounds for termination of employment by an employer, with or without notice.
The above-mentioned provision applies accordingly to an employee who has provided support to an employee exercising his or her rights in respect of a violation of the principle of equal treatment in employment (e.g., testifying as a witness in court proceedings).
Pillar III: Access to remedies [page 44]
Polish legislation regulates mechanisms for protecting the period of the employment relationship with trade union activists. In accordance with Article 32 of the Act on Trade Unions, the guarantees of the duration of the employment relationship protect:
– members of the board of the establishment trade union organisation referred to by name (para. 1);
– other members of the establishment trade union organisation, referred to by name, entitled to represent the organisation before the employer or the authority or a person who performs activities in the area of labour law on behalf of the employer (para. 1);
– employees listed by name in the resolution of the founding committee (para. 7);
– employees who perform a function by choice in a trade union outside the establishment, who benefit from unpaid leave or an exemption from performing work (para. 9).
This list is exhaustive. In the case of an establishment trade union with the status of a representative organisation, the limit of employees covered by protection is calculated with the application of one of the two statutory methods (parity or progressive), and the choice of method is exclusive to the trade union. In light of Article 32(1) of the Act on Trade Unions, the employer may not, without the consent of the board of the establishment trade union organisation (respectively, the founding committee or the statutory body of a multi-establishment trade union organisation):
– terminate the employment relationship with a trade union activist (point 1);
– terminate the employment relationship with that person without notice (point 1);
–unilaterally change working or pay conditions to the detriment of a trade union activist (point 2), unless separate regulations provide for this (e.g., in the event of bankruptcy or liquidation of the employer).
The protection referred to above is available:
– for the period specified in the resolution of the board and after that period for an additional period corresponding to half of the period specified by the resolution; however, not longer than one year after that period (Article 32(2)); or
– a period of six months from the day the founding committee is established (Article 32(7)); or
– a period of leave or exemption and for one year after that period (Article 32(9)).
The lack of consent of the competent body of the trade union organisation is binding on the employer in the sense that they may not legally unilaterally terminate or change the employment relationship with a trade union activist. In certain situations, the protection of the period of the trade union activist’s employment relationship may, however, be excluded because of an abuse of the freedom of association. The Supreme Court has discussed the subject of abuse of protection of the period of the employment relationship of trade union activists, e.g., stating in judgement I PKN 23/00 of 12 September 2000 that the statutory guarantee of enhanced protection of the period of the employment relationship should be used only by a trade union activist who cannot be charged with a serious violation of basic labour obligations and using a trade union function as a kind of protective umbrella against justified labour-law sanctions. In the justification for the judgement, it was declared that, in the event of a breach of the formal provision for termination of an employment relationship under this procedure, resulting from the lack of consent of the establishment trade union organisation to terminate the employment relationship with a trade union official, the labour court is entitled, in accordance with established law, to order compensation in lieu of reinstatement.
Article 8 of the Act of 3 December 2010 on the Implementation of Certain European Union Provisions on Equal Treatment (Journal of Laws No 254, Item 1700, as amended) prohibits the unequal treatment of individuals on grounds of sex, race, ethnic descent, nationality, religion, religious denomination, world view, disability, age, or sexual orientation, including with respect to joining and working in trade unions, employers’ organisations, and enjoying the rights of members of such organisations. Everyone whose right to equal treatment has been violated has the right to compensation as laid down in the Act of 23 April 1964, the Civil Code (Journal of Laws of 2016, Item 380, as amended).
Out-of-court mechanisms for dealing with collective bargaining by employees include the possibility of initiating collective labour disputes between employees and their employer or employers concerning working conditions, remuneration, or social benefits, and the rights and freedoms of trade union workers or other groups entitled to form trade unions, under Article 1 of the Act of 23 May 1991 on Solving Collective Disputes (Journal of Laws of 2015, Item 295, as amended). Moreover, in light of the provisions of Articles 240 § 2 and 2411 Pt. 3 of the Labour Code, the parties to a collective agreement may, within the framework of the freedom of association, establish procedures for interpreting the contents of the agreement and for settling disputes between the parties in this regard. The parties to the agreement may determine procedures for settling disputes related to the subject of negotiations to conclude a collective labour agreement, or other controversial issues that may arise during the negotiations (Article 2413 § 2 of the Labour Code).