Poland – judicial remedy 2nd NAP
2. Ministry of Development Funds and Regional Policy
Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services
[page 10]
“In 2019, Directive 2019/882 of 17 April 2019 on the accessibility requirements for products and services (European Accessibility Act, EAA) entered into force. The mechanisms ensuring conformity with the accessibility requirements comprise:”
(…)
“- Alternative dispute resolution mechanisms
– Administrative and judicial channels
– Any consumer will be able to lodge a complaint (take an action to a court or public administration body) with additional powers of NGOs in this respect.”
Activity of the OECD National Contact Point for Responsible Business Conduct
[page 11-12]
“The Polish OECD National Contact Point for Responsible Business Conduct (OECD NCP) was established in 1998, two years after Poland’s accession to the OECD. Since 2016, OECD NCP has been operating within the structure of government administration, currently in the Ministry of Development Funds and Regional Policy (MFiPR) in the structures of the Office of the Minister. As part of the operations of the OECD NCP in the area of respect for human rights in business activity of enterprises, the following activities are planned: – promotion of the OECD Guidelines for Multinational Enterprises and the OECD sectoral recommendations, with particular emphasis on those concerning respect for human rights, – continuation of activities aimed at translating OECD documents on responsible business, which have not yet been translated into Polish, including involvement of representatives of relevant industries and sectors in the process of translation and verification of the documents, – organisation of thematic information meetings on the activities of the OECD NCP to promote responsible business standards and the complaint mechanism for reporting potential violations of the OECD Guidelines for Multinational Enterprises, – processing of notifications of potential violations of the OECD Guidelines for Multinational Enterprises by multinational enterprises. The OECD Guidelines for Multinational Enterprises address respect for human rights in business activity of enterprises in Chapter IV and, in part, also in Chapter V on employment relations including labour rights. Across the 50 countries implementing the OECD Guidelines for Multinational Enterprises, human rights violations constitute one of the most frequent reasons for filing notifications to the OECD NCP. Hence, one of the indicators for monitoring the implementation of the NAP in 2021-2024 will be information on the number of notifications of potential violations of the OECD Guidelines related to Chapters IV and V of the OECD Guidelines as received and processed by the OECD NCP. Moreover, in the coming years and in line with the expectations of the social partners the OECD NCP plans to increase the number of events promoting the OECD Guidelines, such as webinars or conferences. These events will also include one promoting responsible business standards in the context of respect for human rights in business activities of enterprises.”
6. Ministry of Justice
Draft Act amending the Act – the Code of Civil Procedure and certain other acts
[page 24-25]
“As intended by the legislators, the new draft Act amending the Act – the Code of Civil Procedure and certain other acts is to increase the scope of protection of consumer rights and strengthen the position of the consumer as a party to proceedings against the entrepreneur. The foregoing aim is to be 25 achieved primarily through the introduction of new separate proceedings with the participation of consumers, the provisions of which will also apply when the entrepreneur who is a party to the proceedings has ceased his business activity. In cases heard in accordance with the provisions governing these proceedings, the consumer will be able to bring an action also before the court of their place of residence. This will not apply, however, to cases in which the jurisdiction of the court is exclusive.”
Proposal of a definition of forced labour
[page 25]
“The Ministry of Justice has received the material developed within the framework of the Working Group for Relations with Individuals Performing Work of the Advisory Board for Sustainable Development and Corporate Social Responsibility – an auxiliary body of the Minister of Investment and Development, containing a proposal for the definition of forced labour. The Ministry of Justice will examine the possibility of working on the criminalisation of forced labour as a prohibited act positioned between the violation of labour rights and trafficking in human beings.”
Liability of collective entities for prohibited acts
[page 25]
“As regards liability of collective entities for prohibited acts, a draft of the relevant law, introducing a modern model of such liability, was drafted in 2018 at the Ministry of Justice and adopted by the Government, and then referred to parliamentary work. The draft has been discontinued due to the end of the term of the Sejm. The Ministry of Justice will examine the possibility of resuming work on the draft law.”
6. Ministry of Justice
Mediation
[page 25-26]
“The Ministry of Justice is planning activities in the area of mediation, including the establishment of the National Register of Mediators. In 2018-2019, during meetings with the Judges-Coordinators for Mediation operating by Regional Courts and during the meetings of The Council for the Alternative Methods of Disputes and Conflicts Resolution by the Minister of Justice, comments and reservations were raised on the functioning of the permanent lists of mediators kept by the Heads of the Regional Courts, as regards no possibility of verifying persons entered on the lists who no longer actively practice the profession of mediator.”
(…)
“The main objective of the project entitled ‘Popularization of Alternative Dispute Resolution methods through increasing the competences of mediators, creation of the National Register of Mediators (KRM) and information activities’ is to professionalise the profession of mediator by establishing the National Register of Mediators (KRM) and conducting a cycle of mediation trainings within the Integrated Qualification System, as well as to improve knowledge on e-mediation and possibilities of using it in commercial and labour disputes”
(…)
“The activities implemented as part of the aforementioned project are addressed primarily to citizens interested in making use of mediation proceedings, judicial authorities as those referring cases to mediation, as well as mediators and persons who want to obtain qualifications in mediation.”
13. National Labour Inspectorate
[page 35]
“The National Labour Inspectorate (PIP) is an authority established in order to oversee and verify the observance of labour law, in particular occupational health and safety rules and regulations. During the implementation of its statutory tasks, the National Labour Inspectorate cooperates with specialised authorities for supervision and inspection of working conditions, trade unions, employers’ organisations, workers’ self-government authorities, workers’ councils, social labour inspections, public employment services and state administration authorities, particularly authorities for overseeing and inspecting working conditions, the Police, the Border Guard, customs authorities, revenue offices, and the Social Insurance Institution, as well as local self-government authorities”
Statutory tasks
[page 35]
“The statutory tasks of the National Labour Inspectorate include, in particular:”
(…)
“– taking actions aimed at preventing and reducing hazards in the working environment;
– lodging complaints and participation in legal proceedings for the establishment of an employment relationship before labour courts, if the legal relationship between the parties fulfils the criteria of an employment relationship;
– issuing and revoking permission for a child to perform work or engage in other gainful activity until they reach the age of 16;
– providing technical guidance and legal advice;”
[page 36]
“Some of the PIP’s competencies derive from special provisions. These tasks include: – recommending that the competent Social Insurance Institution’s organisational unit increases the accident insurance premium rates (set for the next premium year) if a labour inspector finds serious violations of the health and safety regulations during two consecutive inspections; – registration of an establishment’s collective bargaining agreements; – ordering the establishment of occupational health and safety services or an increase in the number of service staff, if justified by occupational hazards discovered during an inspection.”
Powers of PIP authorities
[page 36]
“Labour inspectors have the right to conduct an inspection with respect to the observance of the provisions of labour law, and in particular occupational health and safety, without prior notice, at any time of day or night.
In the event that a violation of the regulations concerning labour law is found, the competent labour inspector is entitled to issue legal remedies (improvement notices, oral instructions, oral and written decisions) aimed at removing any irregularities (including the possibility of ordering the cessation of operations or operations of a particular nature).
In addition, the powers and competencies of a labour inspector include:
– imposing fines in the form of penalty tickets and lodging motions with a court of law to punish the parties responsible for violation of employee rights as specified in the Labour Code and petty offences referred to in Articles 119-123 of the Act of 20 April 2004 on the Promotion of Employment and Labour Market Institutions, as well as for other offences related to gainful employment, when provided for by law, and participating in these cases as public prosecutors.
– imposing fines on entities performing carriage by road or other activities related to this kind of carriage in violation of the obligations or conditions of carriage by road.”
Tasks of the National Labour Inspectorate in the field of combating discrimination in access to employment and in relation to the provision of services by employment agencies
[page 38-39]
“As part of inspections concerning the legality of employment, labour inspectors examine issues related to respecting the principle of equal treatment and non-discrimination in access to employment. These activities are aimed at disclosing offences with regard to a refusal to employ a candidate for a vacant position or place of vocational training on the basis of their sex, age, disability, race, religion, nationality, political beliefs, ethnic origin, religious denomination, or sexual orientation. Most often, they involve the examination of job advertisements in which employers post illegal criteria for people who apply for employment, where the nature of the work does not justify their use (e.g., relating to sex or age). Labour inspectors also check compliance with the principle of equal treatment of foreign nationals in terms of working conditions and other conditions of employment, compared to Polish citizens employed in corresponding or similar positions. Promotion of the idea of equal treatment and non-discrimination in the labour market, especially with respect to foreign nationals, is supported by projects co-financed from European funds, as well as PIP publications (leaflets, brochures, guides) addressed to a wide audience.”
Receiving, processing, and handling complaints and applications before the PIP
[page 39-40]
“The subject of a complaint may be, in particular, violation of the rule of law or the interests of complainants, negligence or improper performance of tasks by the authorities or employees of the National Labour Inspectorate, as well as protracted handling of cases; violation of labour law provisions, including the provisions of occupational health and safety and legality of employment, directly affecting the complainant. The subject of an application, in turn, may be, in particular, matters 40 concerning improvement of the organisation, strengthening the rule of law, streamlining work and preventing abuse. Complaints and applications are accepted by all regional labour inspectors and the Chief Labour Inspectorate. They may be lodged in writing, by telegraph, telefax or orally to be included in the minutes, or by electronic means of communication via the electronic inbox.”
14. Office of Competition and Consumer Protection
Tasks related to counteracting the unfair use of contractual advantage
[page 40]
“The President of the Office of Competition and Consumer Protection will continue to perform tasks related to counteracting the unfair use of contractual advantage in trade in agricultural and food products. Their main objective will still be to improve the situation of the weaker participants of the agri-food market through ongoing monitoring of the situation in its individual segments, as well as carrying out explanatory and relevant proceedings in a consistent manner.”
Appendix 1 (information material prepared by the Ministry of Justice)
Trainings
[page 42]
“1. Topic: Claims under bank agreements, reference No C23/21
Specific issues discussed during the training include, among others: judicial control of the content of credit agreements, abusive clauses in credit agreements and their consequences, foreign currency denominated and indexed credits, claims under other bank agreements.
Target audience: judges, assessor judges and court referendaries adjudicating in civil and commercial divisions as well as assistant judges adjudicating in those divisions, and prosecutors and assessors in public prosecutor’s office dealing with civil law cases. Number of editions: 4.
Number of participants: 200 (50 participants in each edition, including 2 places for prosecutors in each edition).
Duration of training: 6-8 hours.
Form of training: seminar (online).
[page 43]
“3. Topic: Agency agreement in court practice, reference No C34/21
Specific issues discussed during the training include, among others: agency agreement, employment agreement, mandate agreement – differentiating elements (personal, economic and social risk, degree of subordination between an agent and a client, subordination of an employee); parties’ claims under an agency agreement during its term and following its termination; non-compete clause and claims arising therefrom; enforceability and prescription of claims in the case law of the Supreme Court and appellate courts.
Target audience: judges, assessor judges and court referendaries adjudicating in civil, commercial, labour law and social divisions as well as assistant judges adjudicating in those divisions, and prosecutors and assessors in public prosecutor’s office dealing with civil law cases.
Number of editions: 4. Number of participants: 200 (50 participants in each edition, including 2 places for prosecutors in each edition).Duration of training: 6-8 hours.
Form of training: seminar (online).”
[page 43]
“4. Topic: Bankruptcy, liquidation of an entrepreneur, reference No C42/21.
Specific issues discussed during the training include, among others: termination of an employment relationship as a result of bankruptcy, liquidation of an enterprise; rights of an employer and employee in the event of bankruptcy and liquidation; regulations precluding protection of employee’s rights; the order in which layoffs are effected, group layoffs, the amount of severance pay; the impact of bankruptcy and restructuring proceedings on ongoing proceedings in labour law cases.
Target audience: judges, assessor judges and court referendaries adjudicating in labour and social security divisions as well as assistant judges adjudicating in those divisions, and prosecutors and assessors in public prosecutor’s office dealing with civil law cases.
Number of editions: 2.
Number of participants: 100 (50 participants in each edition, including 2 places for prosecutors in each edition).
Duration of training: 16 hours. Form of training: seminar, workshops”
[page 43-44]
“5. Topic: Combating hate speech crimes committed via the Internet, reference No K28/21.
Specific issues discussed during the training include, among others: the Internet as a space for hate speech offences – the scale, dynamics and specificity of the phenomenon; identifying the perpetrator of an act of hate speech committed via the Internet, the problem of identity theft – pretending to be another person; hate speech as an element of prohibited acts and freedom of speech, national and international case law; overcoming technical and legal difficulties in obtaining evidence from Internet service providers, owners and administrators of social networking sites.
Target audience: judges and assessor judges adjudicating in criminal divisions as well as assistant judges adjudicating in those divisions, and prosecutors, assessors in public prosecutor’s office and prosecutor’s assistants.
Number of editions: 2. Number of participants: 100 (50 participants in each edition).
Duration of training: 6-8 hours.
Form of training: seminar (online).”
Appendix 1 (information material prepared by the Ministry of Justice)
Trainings
[page 44]
“In line with the recommendations of the Polish Institute of Human Rights and Business, the Ministry of Justice requested that the National School of Judiciary and Public Prosecution consider including the following training courses in the schedule of training activities for 2021-2024:
– for judges, assessor judges and assistant judges on the issue of discrimination and anti-discrimination legislation
– employees of the judiciary who are in contact with citizens as regards dealing with persons who lack sufficient legal knowledge (in particular on simplifying explanations regarding complex legal issues).
In addition, the following training events covering the above-mentioned topics have already been scheduled in the schedule of training activities of the National School of Judiciary and Public Prosecution
1.Training M9/21 European Union anti-discrimination law. Since 2003, the Academy of European Law in Trier (ERA) organises annual seminars on European anti-discrimination directives, adopted under Article 19 of the EC Treaty, i.e. Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation. Specific issues: among others, the effects of EU law on the legal order of Member States; EU anti-discrimination legislation and definition of key concepts: direct discrimination, indirect discrimination, harassment, burden of proof indiscrimination cases; remedies and sanctions in anti-discrimination law; the role of the national judge and the preliminary ruling procedure; the prohibition of age discrimination in the light of CJEU case law.”