New rules for resolution of collective labour disputes

To the numerous changes in employment law awaiting Polish employers (whistleblowing, work-life balance, remote working, alcohol screening of employees, new probationary contracts, etc.) will be added another one concerning the resolution of collective labour disputes.

The new bill and reasons for the change

The new bill governing collective labour disputes was published on the government website on 15 July 2022. According to the explanatory memorandum, the main reasons underlying the bill include: the need to adapt the law to the changing market situation and to enable improved cooperation between trade unions and employers. The current law is over 30 years old and gives rise to a number of practical problems. An analysis of the new regulations gives an impression that their development was also dictated by the deteriorating economic situation in the country and a potential surge of various industrial conflicts. The instruments provided for in the bill impose certain limitations on the manner of conducting a dispute and may, at least theoretically, neutralize the adverse effects of disputes for employers.

Extension of the scope of a dispute

The current regulations establish a list of matters that can be subject to a collective dispute (conditions of work, pay or social benefits as well as the trade union rights and freedoms of employees or other groups which are entitled to form trade unions).

According to the new definition, a dispute can apply to all collective matters in which trade unions represent the rights of persons doing paid work. Contrary to some concerns raised by certain commentators, this change will not be of significance because nearly all collective disputes apply to employees’ remuneration or health and safety issues, which is most likely to continue under the new law. However, it will still not be possible to engage in a collective dispute to support individual demands (such as reinstatement of an individual to work or cancellation of a disciplinary measure).

There is to be a slight difference in disputes regarding collective labour agreements concluded between employers and trade unions. If a dispute pertains to performance of a collective agreement or compliance with such an agreement by the employer, the dispute can be initiated and conducted with no need to terminate the agreement by the union in advance (a new solution). However, if a dispute is to apply to provisions of the collective agreement, i.e. if the union would like to change the agreed terms and conditions, the dispute, in principle, can be initiated and conducted no earlier than on the day of termination of such terms and condition by the union (this rule applies now).

Introduction of the requirement of joint representation of the union organisations

So far, each trade union organisation has had the right to initiate and conduct a collective dispute. It was possible that an employer was engaged in a dispute with several union organisations at the same time, even if their interests and demands were often contradictory. Closing a dispute with one organisation did not denote closure of the dispute in its entirety.

Currently, an obligation to set up a coalition of all union organisations active at the employing establishment (at least to a certain extent) is planned to be implemented. According to Art. 8 of the bill, negotiations are to be conducted by a joint representation of union organisations which are engaged in them. Organisations which will not elect a joint representation can also engage in negotiations (on their own behalf), but only if they are representative within the meaning of the Trade Unions Act. This change seems fair, because for many employers a dispute will be conducted with one social party only, which may considerably facilitate its closure.

Preventive mediation

During the first stage of a dispute, i.e. negotiations, the parties act with no mediator. The mediator is engaged only during the second stage of a dispute, i.e. mediation. According to the proposed changes, a voluntary preventive mediation will be implemented, which is to prevent escalation of the conflict and to help reach an agreement. The aim is for a mediator to be involved already at the stage of negotiations.

Implementation of a review of the legal status of a strike referendum by the court

This solution is much awaited by employers. The main threat involved in a collective dispute is the possibility for employees to arrange for a strike, which requires prior referendum among the staff. So far, employers could not control the manner of carrying out the referendum or the result thereof in any way. The new regulations provide that in the period between calling a strike and the date of its commencement, the union organisation or the employer can apply to the court for examining compliance of the voting on the strike with the law. The strike cannot commence until the court ruling becomes final. The application will have to be recognized by the court within 14 days and thereafter a decision will be issued and delivered to the parties. Within 7 days of delivery of the decision, either party may file an appeal. The appeal will be submitted by the court, along with the case file, to the second instance court, which should issue the final judgment in the case within 14 days. On the one hand, employers have the possibility to have the legal status of a strike controlled by the court, while on the other hand they gain time to enter into an agreement with the unions and thus to avoid the strike.

Limitation of the duration of a collective dispute

Currently, the law does not provide for the maximum duration of a dispute which means that, in practice, disputes can continue for years. The new bill offers a solution whereby the duration of a dispute is limited to 9 months with a possibility of its extension by additional 3 months. In principle, after this time ends, the dispute will expire by operation of law.

It seems that all the new regulations go in the right direction and address the postulates that have long been raised by employers. For the full text of the bill (including the explanatory memorandum) visit:
https://legislacja.rcl.gov.pl/projekt/12361950/katalog/12895602#12895602

KONTAKT

Magdalena Patryas Partner, Katowice

E: magdalena.patryas@pl.Andersen.com
T: +48 32 731 68 84
M: +48 502 392 419

Katarzyna Komulainen Partner, Warsaw

E: katarzyna.komulainen@pl.Andersen.com
T: +48 22 690 08 77
M: +48 606 760 836

Maciej Pietrzycki Manager | Legal advisor, Katowice

E: maciej.pietrzycki@pl.Andersen.com
T: +48 32 731 68 50

Justyna Tlatlik Senior Associate | Legal advisor, Katowice

E: justyna.tlatlik@pl.andersen.com
T: 32 731 68 88

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