Employers’ complaint on pension benefits dismissed

The Constitutional Tribunal has decided not to consider a complaint concerning pensions for miners, lodged by the Polish Confederation of Private Employers ‘Lewiatan’. The employers had complained that amendments to the legislative Act regarding disability and pension benefits financed from the social insurance fund contravened the Polish constitution. However, the Tribunal has concluded that since employers are not responsible for pensions funding, they do not have the authority to question the legislation.

The amended version of the legislative bill regarding disability and pension benefits financed from the social insurance fund was adopted in July 2005, in response to pressure from the trade unions in the mining sector. The amended Act retains the right of miners, who have 25 years of service, to retire irrespective of their age; other employees working under particular conditions may also benefit from early retirement up to the end of 2007.

Employer organisations disagreed vehemently with the amendments, both on account of their substance and the circumstances of their adoption. Employers argued that these special privileges will have the effect of ‘blowing a hole in the social insurance system’. Furthermore, they complain about ‘militant unions hijacking the social dialogue process’.

Constitutionality of the amendments

In this context, the Polish Confederation of Private Employers ‘Lewiatan’ (Polska Konfederacja Pracodawców Prywatnych Lewiatan, PKPP Lewiatan) announced that it would apply to the Constitutional Tribunal (Trybunal Konstytucyjny, TK) to verify the amended Act’s concordance with the constitution. After the autumn parliamentary elections, and in the final days before its resignation, the cabinet of Prime Minister Marek Belka lodged a complaint about the Act with the tribunal; this move elicited protests by the two largest trade union organisations in Poland.

However, the newly elected government of Prime Minister Kazimierz Marcinkiewicz withdrew the complaint; the close ties of the ruling Law and Justice (Prawo i Sprawiedliwosc, PiS) party with the Independent and Self-Governing Trade Union Solidarity (Niezalezny Samorzadny Zwiazek Zawodowy Solidarnosc, NSZZ Solidarnosc) may have influenced this decision. Under these circumstances, PKPP Lewiatan took action and, in December 2005, asked that the Tribunal consider whether the amendments to the legislative Act regarding disability and pension benefits financed from the social insurance fund were in accordance with the constitution. On 23 March 2006, the Tribunal announced that it would not do so because the state – and not companies – is responsible for the financing of pensions and therefore employers do not have a say in this matter.

Reaction from the social partners

This decision was welcomed by the unions. As Waclaw Czerkawski, Vice Chair of the Trade Union of Miners in Poland (Zwiazek Zawodowy Górników w Polsce, ZZG) explained in a statement to the Polish Press Agency (Polska Agencja Prasowa, PAP): ‘The decision of the Constitutional Tribunal demonstrates that union officials are also capable of reading, writing, and of advancing cogent arguments. Our pensions are none of PKPP Lewiatan’s business, as it is not PKPP Lewiatan that finances them. This was the point that we made in our submission to the tribunal.’ Wojciech Gumulka, spokesperson for the Silesia and Dabrowa regional structure of NSZZ Solidarnosc, stated that, even had the Tribunal decided to consider the matter, the unions would still be confident about the eventual outcome.

Wojciech Blaszczyk, Deputy Chair of PKPP Lewiatan, took a less optimistic view of the outcome, claiming that it was ‘a catastrophe for the national budget’. He added in a comment to the Polish newspaper Gazeta Wyborcza, that: ‘The state will have to somehow come up with the money for the miners, and it will surely increase taxes – all of us will end up paying them.’ Mr Blaszczyk also announced that PKPP Lewiatan will appeal against the tribunal’s decision.

Commentary

The signs are that the longstanding dispute over miners’ pensions is drawing to a close. Nevertheless, the employer groups may seek an alternative legal route by which their grievances might be brought before the TK, for instance by persuading a duly empowered entity to lodge a complaint on their behalf. The civil rights ombudsman would represent such an entity, as its office has constitutional authority to put forward complaints on behalf of citizens.

Jan Czarzasty, Instytut Spraw Publicznych

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