Impact of European Works Councils examined

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Legislation implementing the Directive on European Works Councils (EWCs) came into force in Poland when it joined the EU in May 2004. A number of Polish workforce representatives already sit on EWCs, and the Directive's extension to Poland means that their number will increase. This article examines debate around the legislation, and evidence on the extent and outcomes of existing Polish participation on EWCs.

The EU Directive (94/45/EC) on European Works Councils (EWCs) was incorporated into Polish law by way of the legislative Act of 5 April 2002 (Journal of Laws No 62, item 556), which came into force on 1 May 2004 - ie on the day of Poland’s accession to the Union (PL0208106F). Poland opted for an implementation route similar to that applied in 'old' EU Member States such as Austria, Finland, France, Germany, Greece, Ireland, the Netherlands, Portugal and Spain (TN9807201S), in that transposition was primarily through a parliamentary legislative instrument. There were no efforts towards the negotiation by the social partners of an agreement to implement the Directive, of the sort concluded in Belgium, Italy and Norway. The system often used in Denmark and in Sweden, whereby legal regulation of an issue is preceded by legislative preparation involving social partner representatives, was also not employed in Poland. The Polish parliamentary system does not accommodate such solutions - however, that is not to say that representatives of businesses and trade unions did not take part in the work of the relevant parliamentary commissions, whose members took pains to consult the major unions and various business and employers' organisations over the government's draft legislation.

The Polish implementing legislation largely follows the terms of the Directive. However, in certain areas the Directive leaves scope for national-level 'customisation'- notably the method for the election or appointment of the members of the special negotiating body (SNB) which negotiates with management over EWC agreements based on the Directive, and of statutory EWCs based on the Directive's subsidiary requirements (ie essentially where no agreement is reached). On the selection of such Polish employee representatives, the new Act distinguishes between cases where there the multinational concerned has only one Polish operation and cases where it has more than one operation:

  • in the first case, the Polish SNB or EWC representatives are appointed by the representative company-level trade union organisation. If there is no such organisation, representatives are elected by at least 100 employees or their representatives. If there is more than one trade union organisation in the enterprise, the representatives are appointed jointly by all these unions. If they cannot agree, the representatives are elected by employees from candidates nominated by the unions; and
  • in the second case, three representatives are appointed or elected in the above fashion in each enterprise concerned. These representatives then elect from among their number the Polish representative(s) on the SNB or EWC.

Political context of EWCs debate

The process of drawing up the Act implementing the EWCs Directive in Polish law was accompanied by debate in parliament. This was not marked (unusually, it might be argued) by political rifts among the largest parties in parliament - the 'post-communist' Democratic Left Alliance (Sojusz Lewnicy Demokratycznej, SLD), the conservative Civic Platform (Platforma Obywatelska, PO) and the right-wing Law and Justice (Prawo i Sprawiedliwość, PiS). The only major fault-line to emerge was between these parties and the decidedly 'eurosceptic' deputies of the League of Polish Families (Liga Polskich Rodzin, LPR). A position typical of LPR’s brand of euroscepticism, one with a distinct Catholic and nationalist streak, was articulated by Zygmunt Wrzodak, a well-known LPR figure with a background of radical trade union activity. During discussion of the proposed EWCs legislation in the lower chamber in February 2002, Mr Wrzodak declared that 'this statute does not resolve employees' problems, quite on the contrary it refers back to the so-called works councils familiar from communist times ... The European employers need only a dozen or so activists, selected under unclear circumstances, who will pacify any collective disputes ... This statute will engender conflicts among unionists and sow discord among the workforce.'

This view seems fairly typical of the political discourse often used by right-wing eurosceptics in Poland. Aside from this and similar positions, however, the proposed legislation did not meet with any material doubts among the deputies. Furthermore, the trade union confederations and the large business organisations limited themselves to a generalised expression of support and to making several minor points about the technical aspects of the draft Act.

Polish representatives on EWCs

Polish workers' representatives have been sitting on the EWCs of some foreign-based multinationals since 1997 and even, in the case of the French-based Thomson Multimedia electronics manufacturer, since as far back as 1994. To date, however, there are no accurate figures available on the number of Polish operations whose workers are represented on EWCs, or of the exact number of people representing Polish workers in these structures. Often, it is only the European industry federations - the European-level organisations bringing together trade unions within a particular sector - that provide scraps of information on Polish representation in EWCs. This, it has been suggested, may testify to the prevailing communications problems among Polish social partner organisations at the national level as well as within specific sectors and regions.

Andrzej Matla of the national commission of the Independent and Self-Governing Trade Union Solidarity (Niezależny Samorządny Związek Zawodowy 'Solidarność', NSZZ Solidarność) has estimated that there are approximately 80 multinationals with EWCs operating in Poland - in the metalworking, foodstuffs, chemicals, construction and construction materials, paper and cellulose, transport, power generation, commerce, and banking industries. Such data as is available suggests that trade union activists are the dominant group among Polish workforce representatives on EWCs. As of the first half of 2004, just before Poland’s accession to the EU, 32 Polish EWC representatives were NSZZ Solidarność members, of whom four sat on the EWCs' executive committees - at Heineken, Real, Thomson Multimedia and Volkswagen. A further 10 workforce representatives were members of the All-Poland Alliance of Trade Unions (Ogólnopolskie Porozumienie Związków Zawodowych, OPZZ), Poland’s second-largest union organisation, and two more belonged to in-house union organisations. Four workforce representatives were not unionised. Eleven of the Polish EWC workforce representatives were members of management (at Sanitec, Seagram and Metsa Serla, among others). For NSZZ Solidarność, the fact that employees of some enterprises are represented by members of management indicates that, in many instances, the workers are represented by people who are in practice influenced by the employer.

Assessment of outcomes of EWC participation

Questionnaire-based studies carried out by NSZZ Solidarność among Polish representatives indicate negative as well as positive aspects of the operation of EWCs. Some points of concern to Polish members include excessively long periods separating EWC meetings, which are usually held once every year over two days - not enough, it is argued, for sufficient contact among the members. Mention has also been made of perceived low effectiveness of EWCs, said to arise from vague provisions in the Directive which are replicated in the national implementing measures of Member States. There is also alleged to be abuse of confidentiality clauses on the part of employers, and a tendency for management to engage in monologue rather than dialogue.

The positive aspects highlighted by respondents include wider access to information about the enterprise concerned, interaction with employee representatives from other countries and improved possibilities for information campaigns among workers. Another significant effect brought by EWCs - perhaps the one with the greatest long-term potential - is practical experience with dialogue and with shared decision-making. This benefit is not to be taken lightly, according to commentators, particularly if considered against the backdrop of the generally contentious industrial relations situation in Poland.

Commentary

European Works Councils are beginning to take root in Poland. However, to say that EWCs have come to constitute a distinct, established element of employer-employee relations in Poland would be premature - nevertheless, the perspectives for development are there.

Unline most of the old 15 EU Member States, in Poland EWCs have not been introduced into an environment already characterised by advanced institutionalisation of dialogue-based forms of achieving consensus. Thus, one could not say - as in the case of, for instance, Austria or Germany - that EWCs are just the latest of many forms of partnership-like consultation and negotiation. For example, in Poland the process of institutionalising tripartite dialogue typical of many west European countries only began in earnest some 10 years ago, and the statutory provisions regulating the national Tripartite Commission for Social and Economic Affairs (Komisja Trójstronna do Spraw Społeczno-Gospodarczych) (PL0210106F) and dialogue at the regional level (PL0307105F) were enacted even later. Even after the establishment of the regional commissions for social dialogue, the centralised form of consultation continues to predominate (TN0207104F). A comparison of the Polish situation with the operation of EWCs in Greece or in Portugal would probably be more apposite; in these countries, EWCs have yet to make a major impact on the general state of industrial relations.

It should also be borne in mind that since 1993 an appreciable decline in unionisation has been observed in Poland (PL0208105F), a phenomenon that has occurred to varying degrees in most other EU Member States (TN0403105U). In the future, the activities of EWCs may compensate, if only to a relatively small degree, for this waning of the union movement. They will certainly fortify the culture of dialogue in the arena of Polish industrial relations. (Jacek Sroka, Institute of Public Affairs [Instytut Spraw Publicznych, ISP] and Wroclaw University [Uniwersytet Wrocławski])

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