Employers and government favour stricter criteria for union representativeness

The Polish legal system guarantees pluralism of trade unions at company level. In practice, this means that a dozen or more union organisations are active in some enterprises. Employers believe that this situation poses a significant barrier to effective social dialogue at company level, and they argue that the criteria determining the representative status of trade unions should be stricter. The Polish government supports this position.

Establishment of trade unions

The Constitution of the Republic of Poland guarantees the principle of freedom to establish and run trade unions. Furthermore, the right to gather together in trade unions is regulated by the Act of May 1991, which states that a trade union can be formed by at least 10 people authorised to establish trade unions, without the need to obtain permission from any state body or employer. The establishment of a trade union only requires court registration.

Trade unions at company level

The principle of trade union pluralism was adopted in the early 1990s, as a result of which the subsidiary unions of two trade union confederations were present in most enterprises – the Independent and Self-Governing Trade Union ‘Solidarity’ (Niezależny Samorządny Związek Zawodowy Solidarność, NSZZ Solidarność) and the All-Poland Alliance of Trade Unions (Ogólnopolskie Porozumienie Związków Zawodowych, OPZZ). Soon, more employee organisations started to emerge at local level, which were mostly spin-offs of trade unions affiliated to NSZZ Solidarność and OPZZ. Autonomous trade union organisations limited to individual companies were also established. Experts suggest that sometimes the managing boards of companies tried to instigate the formation of their own trade unions, so-called ‘yellow unions’, which were designed to sabotage unanimity and single policy among trade unions within one organisation.

Such practices had been curbed somewhat when, due to the Labour Code amendments in 1996, the law introduced the representativeness criteria for trade unions along with a list of privileges that accompanied the role.

At the same time, the membership of trade unions began to decline rapidly, from about 28% among all employees in 1991 to 17% in 2007; as a result, in most companies, no trade union representation currently exists. However, in certain companies, the number of trade union organisations is rather excessive, amounting to up to several dozen unions in a single enterprise. As the President of NSZZ Solidarność of the Polish Mail (Solidarność Poczta Polska), Nowicki Bogumił, explained:

...the number of trade unions currently operating here is close to 35, but that’s not the end. Every week some new structures emerge. Considering the number of employees in our company and the number of local executives who could feel threatened by lay-offs, I wouldn’t be surprised to see the number of trade union organisations going over one hundred...

The excess of trade unions in a single company causes problems both for the unions and the employers, especially when it comes to agreements that require a unanimous vote.

Representativeness criteria

In order to cope with the difficulties in reaching agreement by all of the trade unions within an enterprise due to the number of unions involved, the Labour Code was thus amended in 1996, as noted above, introducing special privileges for so-called representative trade unions. The basic criterion in defining which employee organisations are representative is the number of members. The law defines a representative employee organisation as one which has the following characteristics:

• it is affiliated to a representative national trade union confederation, according to the Act on Tripartite Commission for Social and Economic Affairs (Komisja Trójstronna ds. Społeczno-Gospodarczych) – in other words, the national confederation must organise more than 300,000 members;

• it unites at least 10% of all employees working in a given enterprise.

If none of the trade unions in a company meets either of the above criteria, the representative trade union organisation is deemed the one which has the most members within the enterprise.

Trade unions that fulfil the criteria of representativeness are authorised to take decisions in a situation where all of the unions operating in a company are unable to reach them unanimously, for example, in matters concerning a collective bargaining agreement.

Trade union fragmentation

According to industrial relations experts, the erosion of trade union density is generally attributed to the strong fragmentation of trade union structures at company level and animosity between some employee organisations. Professor Juliusz Gardawski of the Warsaw School of Economics (Szkola Główna Handlowa w Warszawie, SGH) claims that trade unions at company level started to lose credibility as the defenders of workers who did not belong to the unions. In a situation of imminent lay-offs, for example, the particular interests of certain trade unions prevailed. The unions proved that they would rather defend their own members, particularly those longstanding members who had been paying their membership fees for many years. Such preferential treatment became common knowledge and young employees, usually with a short period of work experience, began to perceive trade unions as unreliable.

Moreover, a large number of trade unions in a company constitutes a significant cost to the employer. According to the Trade Unions Act, the employer has to:

• provide the infrastructure for trade union activity, such as an office and information technology (IT) equipment;

• offer the same working and wage conditions to trade union representatives, compared with other workers.

Furthermore, in many companies, different trade unions cannot decide common, long-term policies with regard to working conditions and employment. In addition, the surplus of trade unions in a single company causes problems during negotiations in relation to collective disputes. The more parties at one table, the more difficult it is to agree on one common position.

Employer demands

As a result, employers have called for changes to the Collective Disputes Act of 1991. The employers believe that trade union pluralism not only makes negotiations difficult, but also drives trade unions to constantly raise their demands in a form of ‘demand auction’.

According to the Confederation of Polish Employers (Konfederacja Pracodawców Polskich, KPP), the proposed changes will transform trade union strategies at company level from ‘particular pluralism’ to responsible social dialogue and cooperation.

Negotiations begin

In May 2008, social partners met at the forum of the Tripartite Commission in order to agree a common position on the matter of strengthening social dialogue by setting a more precise rule for trade union representativeness. Both trade unions and employers were in favour of specifying such rules; differences of opinion arose only in relation to the number thresholds. The employers proposed that the representative trade unions should represent at least a third of the total staff. However, the trade unions objected, arguing that a 33% threshold would be so high that it would make it impossible to organise a strike in the majority of companies.

Instead, the trade unions proposed to double the current thresholds. In addition, NSZZ Solidarność suggested introducing a rule that only one trade union within a company could have its percentage threshold reduced to less than the obligatory 10% due to its membership in a national trade union confederation represented in the Tripartite Commission. At present, each trade union at company level which is affiliated to a representative confederation at national level has the right to a reduced percentage threshold.

Meanwhile, the trade union leaders rejected any amendments to the Collective Disputes Act.

Commentary

Changes in trade union operations were on the cards for some time. The trade union law, dating back to the beginning of the 1990s, does not provide the best solutions under the present circumstances. The criteria of representativeness should undoubtedly be stricter. Nevertheless, the employers’ proposals were too radical. It seems, however, that reaching an agreement is just a matter of time. In fact, this may also be a good opportunity to start some definite work on the code of the collective labour law, the absence of which is increasingly felt.

, Institute of Public Affairs (ISP)