Poland

Pillar III, Access to remedy

Mediation in civil-, economic-, and individual labour- law proceedings [page 41]

National legislation makes it possible to use mediation. This instrument is widely employed, e.g., on the basis of civil, economic, and individual labour law. It may be used by anyone who has been a victim of human rights violations in the context of business activity. Mediation was given its current form by the Act of 10 September 2015 amending certain acts to support amicable methods of dispute resolution, while the provisions governing this matter are dispersed throughout various acts.

Mediation is a voluntary and confidential method of resolving disputes in which the parties themselves reach an agreement with the help of an unbiased and neutral mediator. It may be applied in all cases where the law permits a settlement. This mechanism provides an opportunity to reach a faster and cheaper resolution of a dispute by means of developing a common understanding.

In civil cases, mediation may take place before bringing a case to court (mediation agreement, out-of-court or pre-trial mediation) or after proceedings were initiated, by means of a court decision. In addition, each party to the dispute has the right to request mediation at any stage of court proceedings. In any case, the necessary condition for mediation is the consent of the parties to the dispute, which may also be withdrawn at any stage of mediation proceedings.

Having decided to start an arbitration procedure, the mediator contacts the parties by setting the date and place of the first meeting, during which they inform the participants about their rights and outline the course of mediation proceedings.

Mediation should be understood as a joint discussion between the parties in the presence of a mediator; however, the participants may individually meet with the mediator in the course of the proceedings, where the circumstances of the case would make this advisable. In exceptional situations, this process can also take place without direct contact between the participants. Mediation is, in principle, of a confidential nature, and the mediator, the parties, and other people involved in the proceedings are required to maintain the confidentiality of the facts they learn in the course of the proceedings.

Mediation proceedings may result in the conclusion of a jointly developed settlement, and in such a case, the parties have to apply to a court for approval. The settlement, after such acceptance, has the legal force of a settlement reached before a court of law. However, if the parties fail to reach an agreement, they still have the right to pursue their claims in court proceedings.

Pillar III, Access to remedy

2. Freedom of association and the right to collective bargaining [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. 45

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).

Pillar III. Access to remedy

3. National Labour Inspectorate (PIP): an institution that oversees business and human rights [page 45]

The National Labour Inspectorate 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 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

The statutory tasks of the National Labour Inspectorate include, in particular:

– oversight and verification of labour law compliance by enterprises, in particular occupational health and safety rules and regulations;

– inspection of goods placed on the market or commissioned for use as regards their compliance with essential or other requirements of occupational health and safety;

– 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;

– providing technical guidance and legal advice.

– cooperation with other European Union Member States’ authorities competent for the supervision of employment and working conditions.

The National Labour Inspectorate inspects the legality of employment and other paid work (also by foreigners), payment of contributions to the Labour Fund, and running employment agencies in accordance with the terms and conditions laid down in the laws governing the promotion of employment and labour market institutions.

Some of the PIP’s competencies derive from specific 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 labour 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. The authorities from the National Labour Inspectorate take part in the decision-making (granting permission) process on the organisation of permanent work sites below ground level and on the use of electrical lighting only in permanent work areas.

In addition to the above-mentioned tasks, the National Labour Inspectorate has an important impact on the working conditions of individuals performing work on a basis other than an employment relationship and on enforcement of the payment of the minimum hourly rate for mandate contracts (Article 734 of the Civil Code) or service contracts to which the provisions on mandate apply (Article 750 of the Civil Code), which are applicable to natural persons who do not conduct an economic activity and to natural persons engaged in an economic activity acting individually and personally while performing contractual tasks.

Powers of PIP authorities

The National Labour Inspectorate’s bodies include: labour inspectors, district labour inspectors, and the Chief Labour Inspector.

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 punishment proceedings 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 Code 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, when provided for by law, and to participate 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. The PIP authorities enforce the decisions issued by administrative execution.

Supervisory and inspection activities

The oversight and inspection activities of the National Labour Inspectorate in the observance of labour law, in particular the provisions and regulations of occupational health and safety, focus on eliminating or at least significantly reducing occupational hazards in the work environment. Oversight and inspection activities are carried out in accordance with an annual and long-term (three-year) action plan, based on an analysis of the results of previous inspections, as well as the Parliament’s comments and observations and recommendations by trade unions, employer organisations, ministries and central offices, authorities supervising and inspecting working conditions, and research institutes.

Priority is given to inspections of industries and establishments with a particularly high occupational risk associated with the presence of factors which are dangerous, harmful, and damaging for health. Moreover, inspection activities are undertaken as a result of requests for inspection by social partners and other public administration authorities, as well as complaints and petitions addressed to the Inspectorate’s organisational units.

One of the tasks of the National Labour Inspectorate is to investigate the circumstances and causes of accidents at work. Fatal, serious, and collective accidents are investigated, as reported by employers (pursuant to Article 234 § 2 of the Labour Code), as well as by other authorities.

The National Labour Inspectorate actively supports employers’ involvement in issues concerning safety and working conditions, as well as employee participation, both in its oversight and inspection capacity and in its preventive and promotional activities. These include seminars, conferences, and training meetings with employers involved in permanent workplace safety improvement programmes (enhanced oversight in industrial establishments, regular inspections in construction, rail infrastructure, forestry, and mining sectors).

Tasks of the National Labour Inspectorate in the field of combating human trafficking, and, in particular, forced labour

National Labour Inspectorate services play an extremely important role in combating trafficking in human beings, including forced labour. The National Labour Inspectorate is included in a group of institutions and organisations carrying out tasks to counteract this phenomenon, as part of their competencies. At the central level, a representative of the Chief Labour Inspectorate participates in meetings of the inter-ministerial Team for Combating and Preventing Trafficking in Human Beings and in proceedings of the Unit’s Working Group. The National Labour Inspectorate carries out tasks under the National Plan and reports annually on their implementation to the Ministry of the Interior and Administration. In addition, selected labour inspectors from district labour inspectorates participate in the work of Voivodship Units for Preventing Trafficking in Human Beings.

Within the framework of the supervisory and inspection tasks, in particular when inspecting the legality of employment and the assignation and performance of work by foreign nationals, labour inspectors check whether there are indications of forced labour at an inspected establishment, a phenomenon which is characterised by taking control over an employee and results in a violation of human rights. In order to evaluate and identify potential victims of trafficking, a number of indicators are used (developed by both ILO and the Ministry of the Interior and Administration), i.e., the circumstances of taking up and performing work, which may indicate that the employee is a victim of this type of crime. The signing of an agreement between the

Border Guard Chief Commander and the Chief Labour Inspector in 2008 and then in 2015 served as an instrument to strengthen the capacity of labour inspectors to respond to the illegal employment of foreign nationals and to the phenomenon of trafficking in human beings. The agreement offers a basis for cooperation in undertaking joint inspections by Border Guard officers and labour inspectors, and for exchanging information on violations of the law concerning foreign nationals, including cases of their illegal employment. Effective combating of crimes of trafficking in human beings for forced labour is also possible thanks to mechanisms of cooperation and exchange of information between National Labour Inspectorate units and prosecutors’ offices, at both the central and local levels, also on the basis of an agreement concluded in 2014. Training courses are conducted at the National Labour Inspectorate Training Centre in Wroclaw to help improve the qualifications of the inspectorial staff involved in the activities related to the issues in question. The procedure for handling complaints by PIP authorities is an important tool in the prevention of trafficking in human beings for forced labour and violations of labour rights of foreign nationals. Complaints that suggest the need for immediate action are examined first.

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

Respecting the dignity and other personal interests of employees is a fundamental duty of employers. This also includes the prohibition of unequal treatment and discrimination at work. The activities of the National Labour Inspectorate to prevent and combat unequal treatment and discrimination in labour relations include the implementation of oversight and inspection measures, as well as prevention and information. Oversight and inspection activities are carried out as a result of, among other things, complaints, notices, and indications of irregularities sent to the National Labour Inspectorate, but also within the framework of inspections carried out in accordance with the Inspectorate’s action programme (thematic inspections), where issues of equal treatment and discrimination are addressed.

Inspections of employment agencies include audits of the implementation of the prohibition of discrimination on grounds of sex, age, disability, race, religion, ethnic origin, nationality, sexual orientation, political beliefs, and religious denomination or trade union affiliation of individuals for whom the agency sought employment or other paid work.

By verifying compliance with the law in relation to temporary workers, labour inspectors make sure that there has been no violation of the prohibition on unequal treatment of temporary workers—with respect to working conditions and other conditions of employment—as compared to workers employed by the employer in the same or a similar position. 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 gender, 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 gender 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 requests before the PIP

Apart from negligence or inadequate performance of tasks by the authorities or employees of the National Labour Inspectorate, complaints may deal, in particular, with breaches of the rule of law or interests of complainants, lengthy or bureaucratic handling of cases, violations of labour law, including occupational health and safety regulations and the legality of employment.

Complaints and applications are accepted by all district labour inspectors and the Chief Labour Inspectorate. They may be submitted in writing by mail, fax, and electronic means (sample complaint and application forms are posted on PIP websites), and also orally for the record.

Planned changes aimed at enhancing the inspection powers of the PIP

Taking into account that the National Labour Inspectorate applies a different inspection procedure to entrepreneurs than to other entities, and that the rights of the former group of inspected entities may significantly affect the findings and effectiveness of actions undertaken, it is necessary for the Ministry of Economic Development to analyse, in cooperation with the National Labour Inspectorate, the rules governing inspections of entrepreneurs under the Act on Freedom of Economic Activity in terms of their impact on the operations and effectiveness of the PIP and to shape them in such a way as to ensure maximum effectiveness of inspections and compliance with international agreements in force in Poland.

One of the elements that ensure respect for the rules is the application of sanctions for violations identified during inspections. In the current legal situation, these penalties are inadequate in comparison with the benefits of illegal employment, which is particularly important as regards undeclared work. Accordingly, the Ministry of Justice, in cooperation with the Ministry of Family, Labour and Social Policy and the National Labour Inspectorate, will review violations of the rights of individuals engaged in gainful employment and the amount of penalties for individual offences and examine the possibility of tightening sanctions (including as part of proceedings on fines), or introducing administrative sanctions, in lieu of liability for offences.

Pillar III. Access to remedy

4. OECD National Contact Point [page 49]

One of the remedies available to victims of human rights abuses by multinational enterprises is the possibility of notifying the OECD National Contact Point (OECD NCP) about the situation.

The OECD NCP’s main task is to promote and disseminate the OECD Guidelines for Multinational Enterprises and, in particular situations, conduct proceedings to resolve conflicts that may arise in the course of the implementation of these Guidelines, also with respect to human rights.

The OECD Guidelines are recommendations for the standards of responsible business conduct addressed by governments to enterprises whose business extends in any way

beyond the boundaries of one country. The Guidelines should be respected by enterprises that are based in one of the countries that implement the Guidelines and wherever they conduct their economic activity. For this reason, it is worth ensuring that the Guidelines are available to all entrepreneurs.

The OECD National Contact Points operate in all 35 OECD countries and 13 non-OECD countries that implement the OECD Guidelines for Multinational Enterprises (Argentina, Brazil, Egypt, Jordan, Lithuania, Colombia, Costa Rica, Morocco, Peru, Romania, Tunisia).15

In Poland, the OECD NCP was established in 1998 within central administration structures (the Ministry of Treasury and afterwards the Ministry of Economy). Since 2001, the OECD NCP had been operating within the Polish Information and Foreign Investment Agency (PAIiIZ). In June 2016, in order to unify public administration operations in the field of CSR and responsible business conduct (RBC), the OECD NCP was transferred from the PAIiIZ to the Ministry of Economic Development. The website of the Ministry of Economic Development provides detailed information about the OECD Guidelines for Multinational Enterprises and OECD NCP activities (http://www.mr.gov.pl/strony/zadania/wsparcie-przedsiebiorczosci/spoleczna-odpowiedzialnosc-przedsiebiorstw-csr/krajowy-punkt-kontaktowy-oecd/). To file a notification of an alleged non-observance of the OECD Guidelines for Multinational Enterprises, one should complete the appropriate form, available on the website of the Ministry of Economic Development, in particular referring to the specific provisions of the OECD Guidelines to which the notification applies, and provide a detailed description of the activities of the enterprise that caused the non-observance of the OECD Guidelines in the above areas. Upon receipt of the notification, the case is subject to a detailed examination by the OECD NCP, which may refer the case to mediation if it is accepted by the NCP.