Poland
Pillar I. The State Duty to Protect human rights [pages 8-20]
National law identifies areas of fundamental human rights at work, as specified in the ILO Declaration on Fundamental Principles and Rights at Work:
Prohibition of forced or compulsory labour
Referring to the prohibition of this type of work, it should be noted that, although the Labour Code does not contain a definition of forced labour, according to Article 65(1) of the Constitution of the Republic of Poland, everyone shall have the freedom to choose and to pursue their own occupation and to choose their place of work (with exceptions specified by law). On the other hand, one of the basic principles of labour law is the right to choose work freely, resulting from the provision of Article 10 of the LC, which also guarantees minimum remuneration and the assistance of the public authorities in taking up employment, as part of state policies to combat unemployment. This provision does not, however, provide the grounds to demand employment. In addition to the right to choose work freely, as specified in Article 10 § 1 of the LC, there is the principle of discretion when establishing an employment relationship, set out in Article 11 of the LC.
Employment and occupation equality
As regards the principle of equal treatment of employees and the prohibition of discrimination in employment, this is clearly established in further provisions of the Labour Code, in particular in Chapter II a, ‘Equal treatment in employment’ (Articles 183a –183e). Counteracting discrimination in employment is one of the basic duties of employers. Employers are also obliged to provide employees with the text of the provisions on equal treatment in employment in the form of written information distributed on the premises of a work establishment or to provide employees with access to the legislation otherwise accepted by a given employer. The Labour Code sets out an open catalogue of grounds for discrimination. In Article 113 , the Labour Code establishes a prohibition of any discrimination on any grounds 10 whatsoever. Similarly, Article 183a § 1 of the LC, which introduces the obligation to treat employees equally in respect of establishing or terminating an employment relationship, employment conditions, conditions for promotion, as well as access to training in order to improve professional qualifications, in particular regardless of sex, age, disability, race, religion, nationality, political beliefs, trade union membership, ethnic origin, creed, sexual orientation, as well as regardless of whether employment is for a definite or indefinite period of time or full-time or part-time employment. The Labour Code contains definitions of equal treatment, direct discrimination, indirect discrimination, harassment, and sexual harassment. Equal treatment in employment means that there must be no discrimination whatsoever, directly or indirectly, whatever the grounds. Discrimination is also taken to include: • practices related to encouraging another person to violate the principle of equal treatment in employment or ordering a person to violate that principle; • harassment or unwanted conduct with the purpose or effect of violating the dignity of an employee or of creating an intimidating, hostile, degrading, humiliating, or offensive atmosphere. Concerning harassment and sexual harassment, the Labour Code guarantees employees that their submission to harassment or sexual harassment or their rejection of harassment or sexual harassment may not result in any negative consequences for said employees. According to Article 183b of the LC, a violation of the principle of equal treatment in employment occurs, with some exceptions, when an employer treats an employee differently on one or more grounds with the effect of, in particular: 1) terminating or rejecting the establishment of an employment relationship; 2) establishing disadvantageous conditions of remuneration for work or other terms of employment, or not being selected for promotion or not being granted other workrelated benefits; 3) not being chosen to participate in training organised to improve professional qualifications unless the employer proves that this was done for objective reasons. In discrimination cases, the burden of proof is shifted from the employee to the employer. The employee should, however, present facts that would lend credence to a case of discrimination. The Labour Code guarantees the right to equal remuneration for the same work or for work of equal value, including all components of remuneration, regardless of their name or characteristics. At the same time, it should be noted that the Labour Code does not explicitly define the concept of “the same work”. A person against whom an employer has violated the principle of equal treatment in employment has the right to compensation of at least the amount of the minimum remuneration for their work. The Labour Code also guarantees other rights to employees who assert their rights. The fact that an employee exercises his or her rights due to a violation of the principle of equal treatment in employment may not constitute a reason for disadvantageous treatment of the employee and may not result in any negative consequences for the employee. In particular, it may not constitute grounds for termination of an employment relationship by an employer, with or without notice. This regulation also applies to employees who have provided any form of support to an employee who has exercised his or her rights on account of a violation of the principle of equal treatment in employment. According to Article 943 of the LC, the employer is obligated to take action against workplace mobbing, which includes acts or behaviour towards an employee or 11 directed against an employee involving persistent and long-lasting harassment or bulling of an employee causing specific negative consequences. An employee who was harassed at work and developed health problems may claim an appropriate amount of money from the employer as a pecuniary compensation for the damage sustained. An employee who terminates his or her employment contract as a result of workplace bullying has the right to claim compensation from his or her employer in an amount not lower than the minimum remuneration for work, as specified under separate provisions. The employee’s statement on the termination of his or her employment contract must be made in writing, stating the reason for termination. Workplace bullying at one’s place of work or in connection with one’s work means a systematic repetition of certain behaviour directed at an employee that results in, e.g., the elimination of such an employee from the group. Particularly important in this case is the health aspect, which distinguishes the phenomenon of workplace bullying from an ordinary conflict. Ensuring equal treatment with respect to, among other things, undertaking and pursuing economic or professional activity is governed by the Act on the Implementation of Certain Regulations of the European Union Regarding Equal Treatment. This law implemented the following European Union directives: 1. Council Directive 86/613/EEC of 11 December 1986 on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity, and on the protection of selfemployed women during pregnancy and motherhood; 2. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; 3. Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; 4. Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services; 5. Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation; 6. Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures to facilitate the exercise of the rights conferred on workers in the context of the free movement of workers (OJ L 128, 30.4.2014) The law determines the areas and means of preventing violations of the principle of equal treatment on the grounds of sex, race, ethnic origin, nationality, religion, belief, disability, age, or sexual orientation, as well as the competent authorities in this respect. The law applies to individuals, legal entities, and organisational units. The law (Article 3) defines the phenomenon of direct and indirect discrimination and explains the concepts of harassment, sexual harassment, unequal treatment, and the principle of equal treatment. According to Article 4, the law applies to, among other things, undertaking vocational training (including further training, improvement, professional retraining, and apprenticeship); the conditions for undertaking and conducting an economic or professional activity (including, in particular, employment or work under a civil-law contract); joining and taking part in trade unions, employers’ organisations, and 12 professional self-governing bodies; and also exercising the rights that members of these organisations are entitled to; having access to, and the opportunity to use, labour market instruments and services, human resources development and unemployment prevention, social security, healthcare, education and higher education, and services, including housing services, objects, and acquiring rights and energy, if they are offered to the public. Article 8 of the law prohibits unequal treatment of individuals on the grounds of sex, race, ethnic origin, nationality, religion, denomination, belief, disability, age, or sexual orientation as regards the conditions of undertaking and conducting economic or professional activity or working under a civil-law contract. It is also prohibited to encourage or order unequal treatment (Article 9). The law also identifies legal remedies for the protection of the principle of equal treatment and the competent authorities to deal with violations. Everyone whose right to equal treatment has been violated has the right to compensation. Employees employed under a contract of mandate or specific work contract have the right to claim compensation from their employer. However, they must justify their claims against the employer, i.e., lend credibility to their claim that there has been a violation of the principle of equal treatment. In this case, the employer is obligated to prove that no violation occurred. According to the provisions of the law, a victim of unequal treatment can only claim compensation, as the law does not provide for the possibility of awarding redress for harm caused by unequal treatment. Victims of discrimination must exercise their rights in court, in which case, the provisions of the Civil Code and the Code of Civil Procedure apply. Employers employing individuals under civil-law contracts are required to comply with the anti-discrimination provisions of the Act on the Implementation of Certain Regulations of the European Union Regarding Equal Treatment; otherwise, they may be exposed to costs due to possible compensation proceedings. The law introduces the principle of reversed proof of burden, as does the Labour Code. According to this regulation, anyone who alleges a violation of the principle of equal treatment should lend credibility to the fact of its violation, and the party that has been accused of discrimination must try to prove that they have not violated the principle.
Prevention of economic exploitation of children
Article 39 of the Convention on the Rights of the Child states that States Parties to the Convention “recognise the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development”.
Article 3045 of the LC provides that work or other paid jobs may only be performed by a child under the age of 16 for the benefit of an entity conducting cultural, artistic, sporting, or advertising activity, and only with the prior consent of the child’s statutory representative or guardian, as well as permission from the relevant labour inspector. The relevant labour inspector must refuse permission if the performance of the work will endanger the life, health, or psychophysical development of the child or if it constitutes a threat to the child’s performance of his or her school duties. In turn, the freedom to employ individuals between the ages of 16 and 18 is limited by the provisions of the Ordinance of the Council of Ministers of 24 August 2004 listing jobs prohibited to young people and conditions of employment for some of these jobs.
Freedom of association
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). Other important areas addressing the issue of labour rights include:
The right to a fair wage
According to Article 23 of the Universal Declaration of Human Rights, “everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection”. This right was specifically codified in Article 7 of the International Covenant on Economic, Social and Cultural Rights. The establishment of a minimum wage and a hourly minimum wage for certain civillaw contracts represents an instrument that furthers this goal. These issues are regulated by the Act of 10 October 2002 on Minimum Remuneration for Work (Journal of Laws 2015, Item 2008, as amended). According to the law, the minimum remuneration is the subject of negotiations in the Social Dialogue Council, consisting of representatives of the government, employees (trade unions), and employers (employers’ organisations). In the event of disagreement in the Social Dialogue 14 Council, the decision on the amount of minimum remuneration is taken by the Council of Ministers. The amount of minimum remuneration for work determines the minimum hourly wage. As of 1 January 2017, the minimum monthly remuneration for work is PLN 2,000. Systemic changes have also been introduced: it is no longer possible to set employee’s remuneration at a level lower than the minimum remuneration for employees with a short period of service (i.e., 80 per cent of that remuneration); the scope of the minimum remuneration component was also changed by removing the allowance for night-time work. As of 1 January 2017, a minimum hourly rate of PLN 13 applies to employees hired under mandate contracts and service contracts, including those who are self-employed. This amount will be adjusted annually to reflect the increase in the minimum remuneration for employees employed on the basis of an employment contract. Remuneration below the minimum wage constitutes a violation of employee rights. Each increase of the minimum wage improves of the situation of the lowest-paid workers. The introduction of a guaranteed minimum-remuneration for mandate contracts and service contracts, to which the provisions of mandate apply, is intended to generate a positive change in the labour market by preventing the abuse of civil-law contracts and introducing protections for individuals receiving remuneration at the lowest level.
Occupational safety and health
Article 7 of the International Covenant on Economic, Social and Cultural Rights calls on the States Parties to the Covenant to recognise the right of everyone to enjoy of just and favourable conditions of work, including safe and healthy working conditions, as well as rest, leisure, and reasonable limitation of working hours and periodic paid holidays, as well as remuneration for public holidays. The provisions for ensuring safe and hygienic working conditions by employers are set out in Division 10 of the Labour Code, “Health and Safety at Work”, as well as in other generally applicable laws. In accordance with the provisions of the Labour Code, employers are obliged to protect the health and life of their employees by providing them with health and safety conditions at work that appropriately use science and technology achievements. Employers are also obligated to organise work in a manner that ensures the above-mentioned conditions. In addition, Division 10 of the Labour Code specifies the rights and obligations of employees with respect to health and safety at work, the basic health and safety requirements for buildings and working premises, as well as machines and other technical equipment, requirements regarding factors and processes of work that create particular threats to health or life, obligations providing employees with preventive health protection, employers’ obligations related to accidents at work and occupational diseases, obligations to provide health and safety training, obligations to provide employees with measures of individual protection and work clothes and shoes, requirements to establish a health and safety at work service, requirements to provide consultations on health and safety at work and a commission on health and safety at work. In addition to the provisions of Division 10, the Labour Code also contains other provisions for the protection of the lives and health of women and young people who are employees, included in Division 8, “The Rights of Employees in Relation to Parenthood”, and Division 9, “Employment of Young People”. The provision of safe and hygienic work conditions for employees is also ensured by regulations of other laws, including the Construction Law, the Atomic Law, and the Geological and Mining Law. 15 The state’s activities as regards supervision and inspection of work conditions (in accordance with the requirements of international law) are important for ensuring health and safety at work. The system of measures that implement this policy is based, in particular, on the powers of the National Labour Inspectorate (reporting to the Sejm of the Republic of Poland) to supervise the observance of labour law, including health and safety at work, and the State Sanitary Inspection (reporting to the Minister of Health) to supervise compliance with work hygiene regulations. According to Article 304 of the LC, employers are obligated to ensure health and safety working conditions not only for their employees, but also for individuals performing work on a basis other than an employment contract at a work establishment or in a place designated by the employer, as well as for anyone conducting their own business activity at a work establishment or in a place designated by the employer. Obligations related to health and safety at work are applicable to non-employers who organise work performed by individuals on a non-employment basis and self-employed individuals. According to Article 3041 of the LC, the basic duties of employees (referred to in Article 211 of the LC) within the scope determined by an employer or another entity organising work will also be imposed on individuals who perform work on a different basis than an employment contract at a work establishment or in a place designated by the employer or other entity organising work, as well as on anyone conducting their own business activity at their work establishment or in a place designated by the employer or another entity organising work.
Right of female workers to protection
In view of the right of employed women to special protection under Article 8 of the European Social Charter, as well as the right of mothers to special protection during the period before and after childbirth under Article 10 of the International Covenant on Economic, Social and Cultural Rights, and under Article 177 of the LC, the employment relationship with a female employee during her pregnancy or while on maternity leave is accorded particular protection. During this time, an employer may not terminate an employment contract with or without notice unless there are reasons justifying termination without notice through the fault of the employee and an enterprise trade union representing the employee has consented to the termination of the employment contract. During pregnancy or maternity leave, it is possible to terminate an employment contract solely in the event that the employer declares bankruptcy or is liquidated. In such cases, however, the employer is obliged to agree with the enterprise trade union representing the female employee on the date of the termination of her employment contract. If it is not possible to ensure other employment within that period of time, the female employee is entitled to the benefits specified in separate provisions on cash benefits from social security in the event of sickness or maternity. The special protection of the employment relationship does not apply to female employees during their trial period not exceeding one month or to employees hired under an employment contract for a definite period of time concluded to replace an employee during a justified absence from work. These regulations also apply accordingly to employees on parental leave. The Labour Code also contains a number of provisions governing specific rights of employees related to parenting, including the provisions on maternity, parental, paternity, and child-care leave, as well as provisions to facilitate the fulfilment of parental responsibilities in relation to child care and education, including regulations that make it possible to combine leave with part-time work or regulations on working time and the use of exemptions from work or breaks from work. 16 The particular protection of employment relationships during pregnancy and maternity leave is subject to modifications resulting from the provisions of the Act of 13 March 2003 on Special Rules regarding the Termination of an Employment Relationship for Reasons not Related to Employees (Journal of Laws of 2016, Item 1474). This law, which applies to employers with at least 20 employees, permits termination of current employment and working conditions with notice, while still prohibiting termination, both in the case of collective redundancies and individual termination of an employment relationship during pregnancy and maternity leave. These regulations also apply accordingly to employees on parental leave. Under the Act on the Implementation of Certain Regulations of the European Union Regarding Equal Treatment, in the case of a violation of the principle of equal treatment, laid down in that law, against an individual, including in connection with pregnancy, maternity leave, leave on terms of maternity leave, paternity leave, parental leave, or child-care leave, such person is entitled to compensation.
Improvement of professional qualifications
Employers are obliged to enable employees to improve their professional qualifications. The Labour Code outlines the rules governing the conclusion of contracts regarding supplementary education, granting leave for education, a training leave, and additional benefits. The principle of enabling employees to improve their professional qualifications mainly relates to the qualifications necessary for the proper performance of their current job or the qualifications needed for the work that employees are supposed to do in the future for a particular employer. This does not mean that an employer should not, to the extent possible, foster their employees’ overall intellectual development. Such development is not only in the interest of employees, but also in the interest of the employer, because it influences the creative attitude adopted by employees at work. The principle of enabling employees to improve their professional qualifications is connected with the right to education, which is enshrined in Article 70 of the Constitution of the Republic of Poland, the Universal Declaration of Human Rights (Article 26), and the International Covenant on Economic, Social and Cultural Rights (Article 13). At the same time, it should be noted that the idea of lifelong learning is one of the most important premises of the so-called Lisbon Strategy and also one of the elements of Europe 2020, a strategy for smart, sustainable, and inclusive growth. Article 8 of the Act on the Implementation of Certain Regulations of the European Union Regarding Equal Treatment prohibits unequal treatment of individuals on the basis of sex, race, ethnic origin, nationality, religion, denomination, belief, disability, age, or sexual orientation, also in the scope of undertaking professional development activities (including further training, improvement, vocational retraining, and apprenticeship). In case of a violation of this prohibition, the injured party may seek compensation. The issue of the improvement of professional qualifications of workers is also governed by Article 10 of the European Social Charter and International Labour Organization Paid Educational Leave Convention, 1974 (No 140). These regulations oblige the state to promote the training of workers by granting them various forms of assistance, in particular financial entitlements and paid release from work.
Right to development
Another inalienable human right that should be guaranteed is the right to development. The UN Declaration on the Right to Development, adopted in 1986, emphasises the importance of human beings in the development process and points to the relationship between human rights and development. This declaration can serve as a guideline for the creation of national and international policies. It may be an instrument of: – incorporating human rights in the development process; – recognising the importance of the human factor in development efforts; – providing a political, legal, social, moral, and rational basis for development cooperation; – dialogue on human rights between developed and developing countries. States are obliged to pursue their chosen national development policies with a view to the steady growth of the well-being of society and of all individuals, growth based on a fair distribution of benefits. Both the Vienna Declaration and the Programme of Action adopted at the World Conference on Human Rights in Vienna state that development facilitates the enjoyment of all human rights. On the other hand, one may not claim a lack of development and, at the same time, justify a violation of human rights. This is due to the universal nature of these regulations being beyond all discussion. Article 55 of the United Nations Charter details the areas of international economic and social co-operation that, pursuant to Article 56 of the Charter, require common and independent action by UN member states. This co-operation includes: a) higher standards of living, full employment, and conditions of economic and social progress and development; b) solutions to international economic, social, health, and related problems; and international cultural and educational cooperation; and c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.
3. Regulations on European Funds
Article 7 of Regulation No 1303/2013 of the European Parliament and of the European Council of 17 December 2013 laying down common provisions on five EU funds5 obligates all Member States to take appropriate steps to prevent any form of discrimination, including based on disability. 6 In view of the above, in 2015, the Ministry of Infrastructure and Development developed the Guidelines for the implementation of the principle of equal opportunities and non-discrimination, including accessibility for people with disabilities and the principle of equal opportunities for women and men within EU funds for 2014-2020. The above-mentioned Guidelines aim to ensure the compatibility of operational programmes (OPs) with the principle of equal opportunities and non-discrimination, including accessibility, for people with disabilities and the principle of equal opportunities for women and men, as well as to ensure a coherent approach in this respect under the European Social Fund (ESF), the European Regional Development Fund (ERDF), and the Cohesion Fund (CF). The Guidelines are addressed to all institutions that participate in the implementation of operational programmes cofinanced by the ESF, the ERDF and the CF, in particular managing authorities (MAs), intermediate bodies (IPs) and implementing authorities (IAs). MAs ensure that the competent decision-making body or which is a party to a project co-financing agreement under an OP will commit the beneficiary in a decision or project cofinancing agreement to apply the current Guiding Principles. The provisions adopted in these Guiding Principles are also an expression of the inclusion of the provisions of the United Nations Convention on the Rights of Persons with Disabilities, ratified by Poland in 2012, within the framework of structural funds. According to the Guiding Principles, the managing authorities of operating programmes develop criteria for the evaluation of applications for co-financing allocation in such a way that co-financing (also projects implemented by enterprises) is offered to projects that have a positive or neutral impact on the principle of equal opportunities and non-discrimination, including accessibility for people with disabilities, and the principle of equal opportunities for women and men. The creation of administrative capacity to implement equal opportunities and non-discrimination policies, including accessibility for people with disabilities and equal opportunities for women and men in relation to the European Structural and Investment Funds (EFSI) was regulated in the Action Plan for Equality and Non-discrimination 2014-2020 (22 April 2015). 8 This document is primarily an action plan for the measures that should be taken by the institutions involved in the implementation of EU funds to ensure accessibility for people with disabilities. The above-mentioned documents provide a strategic and operational framework for the disbursement of structural funds corresponding to EU policies on equal opportunity. They also represent the government’s efforts to implement and promote the provisions of the United Nations Convention on the Rights of Persons with Disabilities. In practice, the intention is to give disabled clients of European funds an opportunity to participate in the EU budget, i.e., the opportunity to use the funds, choose a career without barriers, and thus enjoy full inclusion in society. Hence, the introduction of a number of tools intended to ensure such accessibility, e.g., universal design, rational improvements, digital accessibility, or architectural availability.
5. Planned changes in national legislation:
Act on Counteracting the Unfair Use of Contractual Advantage in the Trade in Agricultural and Food Products.
The Act on Counteracting the Unfair Use of Contractual Advantage in the Trade in Agricultural and Food Products was prepared by the Ministry of Agriculture and Rural Development. Signed by the President on 28 December 2016, it will enter into force on 12 July 2017. The new act’s primary goal is to ensure the effective dispute resolution between suppliers and buyers of food and agricultural products. A contractual advantage occurs in cases where there is a significant disparity in economic potential between the two parties and where the weaker of these parties lacks the sufficient capacity for selling or purchasing agricultural or food products from other entrepreneurs.
Any entrepreneur who has a reasonable suspicion that it is being subjected to any practices which involve the unfair use of contractual advantage may submit a written complaint to the President of the Office of Competition and Consumer Protection. The Office of Competition and Consumer Protection may only intervene where the total value of the turnover between the supplier and the customer exceeded the amount of PLN 50 000 – during any of the two years preceding the year in which the proceedings were initiated and where the turnover of the supplier or customer applying the practices in question exceeded PLN 100 000 000 – during the year preceding the year in which the proceedings were initiated.
The regulation will help provide greater protection for smaller companies that, in situations of unfair use of contractual advantage, lost their liquidity, and consequently shifted the cost burden onto employees (e.g., delayed payment of wages).
“Package for Creditors”
As a result of a review of legal provisions related to the recovery of debtors’ receivables, in view of the impact of delays in settling obligations on the financial condition of enterprises, particularly in the SME sector and households, as well as the negative effects of actions by unreliable contracting parties, a draft law’s amendment was drawn up to strengthen the rights and guarantees for creditors protecting or enforcing their ownership by:
1) providing broader possibilities for verifying payment credibility of potential contracting parties, based on the data from the registries of economic information offices and the newly created Public-Law Debt Registry, while at the same time respecting the rights of debtors;
2) raising the upper limit of the subject matter of disputes for cases heard in simplified proceedings;
3) extending the scope of cases heard in class actions and eliminating the main barriers to the effective resolution of cases in these proceedings;
4) increasing the effectiveness of a solvency safeguard procedure and enforcement proceedings.
Most of the changes introduced pursuant to the Act of 7 April 2017 on the Amendment of Certain Acts to Facilitate Debt Recovery (Journal of Laws, Item 933) will apply to both entrepreneurs and non-entrepreneurs.
Attention should be paid, in the context of human rights, to regulations on collective bargaining aimed at:
- a) extension of the scope of class actions by enabling redress in class actions arising from non-performance or improper performance of a contract or from unjust enrichment and making claims for liability in cases related to injury to life or health;
- b) increasing the possibility of using class actions for payment through a less rigorous approach to harmonising claims in such cases and clarifying the effects of the harmonisation of claims;
- c) shortening the duration of class actions—their formal phases, e.g., through removal of the obligation to adjudicate at hearings on the admissibility of class actions, giving
up appeals against the decision on the case in class actions, and making it possible for a case to be heard (with respect to circumstances common to all members of the group) at the time when the complaint against the group composition is being heard;
- d) streamlining class actions for liability through clarification of the nature and subject matter of such proceedings;
- e) clarification of the rules regarding the use of a deposit to secure the costs of proceedings.
The changes are intended to shorten and streamline class actions. They will also make it possible to adjudicate more cases in class actions, including the claims of entrepreneurs. Making multiple claims for payment or determining liability for a specific event that affects the property of many individuals in single proceedings will improve the economics of the proceedings. It will help save time and resources related to bringing many individual actions that result from the same event or event of one kind. Consequently, these changes will facilitate the effective exercise of the right to access the courts.
Most of the changes will enter into force on 1 June 2017. The Ministry of Economic Development was responsible for drafting the bill.
Addition of general principles in administrative proceedings:
Friendly interpretation of the law (in dubio pro libertate)
The Act of 7 April 2017 Amending the Administrative Procedure Code and Certain Other Acts (Journal of Laws, Item 935) introduced into the Administrative Procedure Code the principle that, in the event of different interpretations of the law, the authority conducting the proceedings should adopt an interpretation favourable to the party. Thus, the party will be given protection against the negative consequences of unclear legal regulations and the associated uncertainty.
Interpretation of the law may cause difficulties both to citizens (other entities) and administrative authorities, as well as courts and entities performing tasks entrusted to public administration.
Decisions of public authorities where interpretative uncertainties have been adjudicated to the detriment of the party reduce confidence in the state and the laws it introduces. The proposed principle will have particular significance in proceedings imposing an obligation or punishment on the party or revoking the party’s right. In such proceedings the party’s sphere of freedom is restricted either directly or indirectly.
In the area of tax law, the Constitutional Court9 has indicated that the public administration authorities should, in accordance with the principle of in dubio pro tributario, resolve interpretation doubts in favour of the taxpayer. On the other hand, in the context of the protection of the right to property, the Supreme Administrative Court has argued in favour of restrictive interpretation with regard to interference with the rights of the owner.10 There is no doubt that the principle of in dubio pro libertate rights—and this is the case at hand—the court is obliged to follow the directive in dubio pro libertate. It should therefore interpret the rule in such a way as to reduce interference in the content of the co-owners’ right to manage joint property to a minimum.’ permeates the entire administrative law.11 By extending this principle to the level of proceedings before administrative authorities, the provisions that cause uncertainty should be interpreted in a way that does not harm the legitimate interests of citizens.
The constitutional principle of correct legislation serves to protect the confidence of citizens in the state and the law it adopts. The same values should also be more extensively protected in the process of application of the law. Consequently, this principle aims to comply with the same values as the above-mentioned constitutional principle. Although the law should be formulated in such a way that it is not difficult to interpret the meaning of its provisions, the occurrence of such difficulties cannot be ruled out. Therefore, the proposed principle aims to reduce the risk of any possible ambiguity of the provisions affecting the parties.
The principle of proportionality (relevance), impartiality, and the principle of equal treatment
The principles of impartiality and equal treatment, which should be of particular importance in cases involving several parties, have also been included in the provisions of the Act Amending the Administrative Procedure Code. The principle of impartiality means that administration authorities and their employees should not be guided in their actions by any interests or motives beyond the law that might violate the interests of the parties. In accordance with the principle of equal treatment, all parties in the same situation should be treated in a comparable manner without any discrimination.
The principle of deepening citizens’ confidence in the state authorities, a fundamental premise for establishing friendly relations between the administration and citizens, needs to be defined in a more concrete way. One of the basic criteria for assessing the extent to which the administration is friendly to the individual is the predictability of the actions of the public administration authorities and their respect for the individual’s interests. A party that files documents with an authority, generally in cases involving investment expenditure or requiring prior involvement of material resources, including time, has the right to arrange their interests in the belief that, acting in good faith and with respect for the law, it does not risk adverse legal consequences of their decisions, especially the effects that they could not predict at the time they were taken. The administration authorities are required to respect the principle of legitimate expectations so that the party is able to plan its activities in a rational manner.
This principle is based on the premise that the parties’ expectations are legitimate if they relate to lawful and possible actions, and that the authority, acting within the limits of the law, will adhere to its established practice of resolving matters in similar factual and legal situations. The authority should not, without special and important reasons, depart from established and uniform practice.
The adopted provisions also include the principle of proportionality, which requires administration authorities to undertake only such acts that cause an inconvenience for parties that are necessary and proportionate to the intended purpose. Engaging, in the course of proceedings, in activities onerous for the party, in particular involving a limitation of the party’s rights or creating a burden for the party, a public administration authority should take into account the interests of the parties and interfere in those interests only if and to the extent that it is necessary to achieve the intended purpose, in particular resolving the issue in accordance with the law
These principles are expressed in, e.g., Articles 5, 6, and 8 of the European Code of Good Administrative Behaviour.
Uniform standards for the imposition of administrative penalties
Administrative penalties under Polish law often constitute a severe sanction for violating the law. At the same time, the legal system includes no general rules that govern the imposition of these penalties, resulting in a significant differentiation of the situation of the entities subject to punishment, particularly with respect to the mechanisms mitigating the objective nature of administrative liability (e.g., as a result of the lack of determination or differentiation of the factors taken into account while estimating the amount of the pecuniary penalty), which is often unjustified due to the subject matter and the characteristics of a given regulation. Moreover, administrative sanctions are often imposed in an automatic manner, failing to take into account the causes and circumstances of the violation. In addition, administrative sanctions are in many cases more rigorous than criminal penalties, e.g., when no limitations period for the imposition of an administrative penalty has been established. Moreover, the automatic nature of imposing penalties and failure to take account of the circumstances of a given case is not conducive to ensuring a just—in a social sense—response on the part of the administration authorities.
This situation also raises doubts because of the principles established in a democratic state governed by the rule of law, in particular the principle of proportionality.
In the jurisprudence of the European Court of Human Rights, the standards of human rights protection in all sanctioning proceedings should be in line with the guarantees provided for in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, as later amended by Protocols 3, 5, and 8 and supplemented by Protocol 2.12 This means that the guarantees of Article 6 of the Convention are applicable in all quasi-criminal proceedings, including those that, under Polish law, are considered administrative proceedings. Proceedings before administration authorities that may end with the imposition of a penalty should, in principle, meet all the procedural standards provided for in Article 6 of the Convention for proceedings in which the conditions of liability are adjudicated. Also, the jurisprudence of the Supreme Court and the Supreme Administrative Court indicates the need to respect the decisions of the ECHR, expressed on the basis of Article 6 of the Convention in so far as the imposition of administrative penalties is concerned.
Therefore, the formulation of the principles for the imposition of administrative penalties was justified. This will ensure uniform standards of treatment for individuals and guarantee that penalties will be rational and commensurate with the violation.
The regulation deals with: (i) the so-called directives on administrative pecuniary penalties (e.g., the degree, circumstances, and duration of the breach of duty; the frequency of past violations; the degree of the offender’s contribution to the offence; the amount of the benefits achieved; and the personal circumstances of the individual to be punished); (ii) the grounds for not imposing a penalty; (iii) postponement of the date of execution of a penalty; or (iv) division of a penalty into instalments; (v) giving the entrepreneur public aid or de minimis aid in relation to relief in the imposition of a penalty; and (vi) the limitation of the imposition or execution of a penalty. Although the proposed solutions may be used by all citizens, it should be noted that entrepreneurs are particularly exposed to the automatic nature and excessive rigour of imposed administrative penalties. In particular, administrative penalties exert a significant impact on the business environment of entrepreneurs from the SME sector.
The introduction of general provisions on the imposition of administrative penalties into the legal order will be the first such regulation in Polish administrative law.
Regulations on so-called whistle-blowers
Efforts to regulate the position of so-called whistle-blowers will continue. Without changes in the sphere of the law and awareness, it will not be possible to realistically improve the situation of people who reveal abusive practices in Poland. Legislative work is currently under way at the Ministry of Justice with regard to regulations on the protection of whistle-blowers in Poland. It is also necessary to launch a broad social campaign due to the low level of social awareness of whistle-blowing and the role it plays in the public interest.
On 10 April 2017, a pilot programme called ‘Sygnaliści’ (Whistle-blowers) was initiated by the President of the Office of Competition and Consumer Protection. Anyone may report suspected anti-competitive agreement or abuse of a dominant position by a business on a dedicated telephone number or by email. This information can be submitted anonymously, and officials have no intention of determining the identity of the whistle-blower. However, there is a need to address the legal issues related to the status of whistle-blowers in a systematic way, and to protect them from possible negative consequences from the parties whose violations they have reported.
Amendment to the Act on Tourism Services
Plans are in store to undertake work on an amendment of regulations on the provision of hotel service, in order to introduce legislation related to the prevention of sexual exploitation of minors in hotel facilities (detailing requirements of hotel regulations), as recommended by the Council of Europe’s Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse.
Amendment to the Trade Union Act
The Ministry of Family, Labour and Social Policy has drafted a bill amending the Trade Union Act that provides for extending the right of workers to organize onto individuals performing paid work but not mentioned in the provisions of the Act (in particular contractors or self-employed individuals), who have all the characteristics of workers within the meaning of the Constitution. The proposed changes are a consequence of the decision of the Constitutional Tribunal of 2 June 2015, ref. Act K 1/13, which ruled that Article 2(1) of the Trade Union Act, in so far as it restricts the freedom of associating in and joining trade unions by individuals pursuing paid work not referred to in that provision, violates Article 59(1) in conjunction with Article 12 of the Constitution of the Republic of Poland.
It is planned to adapt the provisions of the current trade union law to new realities after the extension of workers’ right to organize and the need to ensure that all trade unionists, irrespective of the nature of their legal relationship with their employer, are able to freely exercise the right to organize in trade unions. The bill is currently in legislation. The draft law has been reviewed by social partners, e.g., as part of the proceedings of the Social Dialogue Council.
Rules governing the liability of Internet intermediaries for hate speech and violation of freedom of speech
The Ministry of Digital Affairs plans to draft a regulation to counteract restrictions on the freedom of speech, on the one hand, and to block illegal content on the Internet, on the other. Legislative work is being carried out that clarifies the procedure for notice and takedown of the illegal content online, as well as strengthens legal safeguards for freedom of speech in the activities of electronic service providers. These efforts address i.a. issues related to hate speech or incitement to violence, as well as the use of unauthorised technical restrictions on freedom of speech in social media.”
6. Actions resulting from the Council of Europe recommendation on human rights and business [page 26]
1) The text of Recommendation CM/Rec(2016)3 to member states on human rights and business (hereinafter referred to as the Recommendation), together with the Explanatory Memorandum, was translated into Polish.
- responsible entity: Ministry of Foreign Affairs;
2) The Recommendation, together with its translation into Polish, will be disseminated among competent public authorities, competent public inspection authorities, courts, prosecutors, police, entrepreneurs, business organisations, and workers’ organisations, social dialogue bodies, entities working to protect human rights, and diplomatic and consular missions. It will also be duly integrated into the curricula of training programmes.
- responsible entities: Ministry of Economic Development; Ministry of Family, Labour and Social Policy; Ministry of Justice; Ministry of the Interior and Administration; Ministry of Foreign Affairs; Government Plenipotentiary for Equal Treatment; and the Government Plenipotentiary for Civil Society, in cooperation with other relevant ministries and bodies;
3) The Recommendation will be analysed to assess the compatibility of the law and practice in Poland and to formulate proposals for possible actions to be taken to implement such compatibility.
- responsible entity: Ministry of Economic Development in cooperation with other ministries, including: Ministry of Family, Labour and Social Policy; Ministry of Justice; Ministry of the Interior and Administration; Government Plenipotentiary for Equal Treatment; and the Government Plenipotentiary for Civil Society;
4) Poland will prepare an interim report and a final report on the state of implementation of the Recommendation with a list of good practices applied by the country:
- responsible entities: Ministry of Foreign Affairs; Ministry of Economic Development; Ministry of Family, Labour and Social Policy; and other ministries;
- completion date: by the end of 2018 (interim report and list of good practices) and by the end of 2020 (final report).
7.Planned and ongoing activities [page 27]
Inclusion of references to the United Nations Guiding Principles on Business and Human Rights in government documents and action plans, including in the National Action Programme for Equal Treatment.
Pillar II. The corporate responsibility to respect human rights
3. Non-financial reporting: implementation of Directive 2014/95/EU [page 30]
Since January 2017, it has been mandatory for a certain group of companies to disclose information regarding the application of human rights policies in business practice in connection with the transposition of Directive 2014/95/EU into Polish law.
Directive 2014/95/EU on disclosure of non-financial and diversity information by certain large enterprises and groups came into force on 6 December 2014. EU Member States had two years to transpose the directive into national law.
It is estimated that the provisions will affect about 6,000 entities in the European Union, while in Poland some 300 enterprises may be required to disclose non-financial data. In Poland, the Ministry of Finance was responsible for the transposition. The Act of 15 December 2016 amending the Accounting Act was published on 11 January 2017 in the Journal of Laws (Journal of Laws 2017, Item 61) as a transposition of the above-mentioned Directive with respect to disclosure of extended non-financial information. The Act came into force on 26 January 2017 and will apply for the first time to reports prepared for the financial year beginning on or after 1 January 2017.
The implemented provisions of the Directive aim to increase the transparency of information with respect to corporate social responsibility (CSR) presented in management reports (in the form of a statement) or in separate reports as regards environmental, social, and occupational issues, respect for human rights, and anti-corruption measures. New reporting obligations are addressed to large entities and generally include those that primarily operate in the financial sector, including banks, insurance companies, issuers of securities, and large capital groups.
Under the Directive and its transposed law, the companies subject to this obligation may apply any national, EU, or international reporting standards or guidelines, including their own rules.
7.Equal opportunities for people with disabilities [page 35]
As regards equal opportunities for disabled people, entrepreneurs should take into account the following issues:
– architectural accessibility: conducting accessibility audits, application of solutions that meet the needs of people with various disabilities, including systems supporting hearing, e.g., in conference rooms, main reception areas, facilities for the blind and visually impaired, ensuring the availability of sanitary facilities;
– developing products, services, goods, and space based on the universal design concept or designing for everyone, including the disabled, seniors, pregnant women, people with baby strollers;
– digital accessibility: accessible websites that should meet the WCAG 2.0 accessibility standard; accessibility of all digital content should be ensured, i.e., online publication of editable documents (e.g., open PDF, Word), avoiding scans of paper documents;
– human resources policy: accessible working environment, employing disabled people (also other disadvantaged groups in the labour market);
– application of rational improvements, i.e., changes and adjustments, in accordance with the needs of disabled employees and customers;
– accessibility in information and promotion activities: social clauses in orders for the performance of tasks and services, communications (e.g., PR) expressed in a language that is easy to understand, respect for diversity, organisation of accessible events;
– treatment of accessibility as the operating standard and the philosophy of the subject rather than a one-off operation.
These issues are addressed both to the public administration and the business sector, and their implementation will enable the creation of modern-looking entities that are open to serving clients with diverse needs and effectively meet their expectations.
9. Support in the implementation of the UN Guiding Principles by companies [page 35]
Equal treatment policy
The obligation to treat all employees equally regardless of their sex, i.e., the legal prohibition of discrimination on grounds of sex is one of the fundamental human rights under the applicable law. Equal treatment is based on the principle of equal pay for the same work or work of equal value, equality in decision-making processes, and equal access to training and promotion. The key areas in this respect include:
– combating discrimination in the workplace (including on grounds of sex);
– equal access for men and women to promotions and training;
– equal remuneration for the same work or work of equal value;
– increasing the participation of women in corporate decision-making bodies;
– diversity management, including employee recruitment and selection, talent management and payroll policies, also in the sphere of an enterprise’s organisational culture;
– providing employees with instruments and mechanisms to enable a good work-life balance. 36
Measures planned by the government to support the implementation of the UN Guiding Principles in these areas focus on working with business representatives, representatives of social partners, and non-governmental organisations dealing with the protection and pursuit of equal opportunities, e.g., through:
– supporting initiatives to improve compliance with human rights standards, including initiatives to strengthen gender equality and diversity in the workplace;
– promoting available solutions and developing, in collaboration with business and social partners, new tools and methods to promote awareness of human rights and equal treatment in the workplace;
– supporting initiatives to promote available solutions and developing, in collaboration with business representatives and social partners, new tools and methods to promote awareness in the area of implementation of equal-treatment policies at enterprises;
– promoting knowledge about the application of compensatory measures in the workplace, or promoting equal opportunities for people belonging to disadvantaged groups;
– measures promoting the benefits of diversity policy and equal opportunities, e.g., balanced participation of women and men in decision-making bodies (promotional and information campaigns, projects co-financed from EU funds, support for initiatives undertaken by entrepreneurs);
– promoting good practices with a view to ensuring equal opportunities by enterprises, e.g., in employee recruitment and selection, talent management, protection against discrimination, management of the remuneration system, etc.;
– supporting initiatives to build a broad coalition for creating a working environment that is free of discrimination and based on the principle of equal opportunities. These measures should involve a wide range of actors, both state institutions and private companies, NGOs, academia, the media, and social partners;
– supporting the development of research and analysis of social inequalities, which may serve as the basis for any possible remedial actions.
The constitution for Business [page 36]
Polish legislation on matters of undertaking and conducting economic activity does not contain any provisions that differentiate the situation of entities based on religion, belief, disability, age, gender, or sexual orientation. Moreover, Article 6(1) of the Act of 2 July 2004 on Freedom of Economic Activity (Journal of Laws of 2016, Item 1829, as amended) expresses the principle of freedom of economic activity by ensuring that everyone is free to undertake, conduct, and terminate economic activity under equal rights pursuant to the terms and conditions set forth by the law. Consequently, all entrepreneurs should be treated equally, i.e., without either discriminating or favouring differentiation.
As part of the ongoing efforts to implement the objectives of the Responsible Development Plan, the current Act on Freedom of Economic Activity is to be replaced by a new transparent legal act of economic law, i.e., the Law of Entrepreneurs. Together with the accompanying laws, the act forms a part of the so-called Constitution for Business package, i.e. a set of legal acts that regulate and streamline the economic activity of entrepreneurs in a comprehensive manner, and stimulate Polish business. According to the proposed regulations, the Law for Entrepreneurs will include the obligation to respect and protect human rights, in accordance with applicable international standards, as well as a number of legal principles governing the position, rights, and obligations of entrepreneurs. In the context of respect for human rights by the business world , it is necessary to pay special attention to the proposed principle of fair competition and respect for good practices and legitimate interests of other entrepreneurs and consumers, which will serve as the guiding principles for the conduct required from entrepreneurs in relation to their economic activity.
10. Planned and ongoing activities [page 37]
1) Promoting good practices in human rights and business, including with respect to state-owned enterprises and enterprises commissioned by the state;
2) Supporting enterprises in the assessment of risks with respect to human rights in doing business in non-EU countries, using the expertise of foreign institutions in Poland;
3) Increasing the involvement of foreign institutions in issues related to human rights and business, including local laws and enterprise operations in Poland, with a view to exercising human rights, with particular regard to the situation of armed conflicts;
4) Promoting dialogue, as needed, between entrepreneurs, civil society organisations, and the government on the implementation of the UN Guiding Principles on Business and Human Rights;
5) Working to establish cooperation between state institutions and business-sector entities to counteract and reduce the phenomenon of forced labour, as one of the forms of trafficking in human beings.
Implementation of the National Action Plan
1.Education [page 53]
The public administration’s role in implementing responsible business conduct includes creating favourable conditions for shaping appropriate forms of cooperation that facilitate making a voluntary commitment to responsible development and social responsibility.
Education and wide dissemination of RBC standards is an important element in this respect, including responsible supply chains and respect for human rights. These actions should be addressed both to direct producers and companies in the supply chain, as well as consumers.
It is appropriate to take preventive measures against forced labour, including education and information initiatives for employers, and to support both the public and private sectors in preventing and responding to the threat of forced labour.
Information on the UN Guiding Principles on Business and Human Rights and the European Council conclusions of 20 June 2016 recommending the inclusion of diplomatic missions in the promotion of the Guiding Principles and their application in their ongoing operations has been sent by the Ministry of Foreign Affairs to all embassies, consulates and Polish Institutes.