Unions oppose changes to working time regulations
Following lengthy and unsuccessful negotiations with unions, the Polish government has unilaterally introduced significant changes to the Labour Code that make it possible for employers to extend the working time reference period from four months to one year. Employers say this will help protect existing jobs and create new ones, but unions argue that the changes breach a European Commission directive and an International Labour Organization convention ratified by Poland.
Working time definition
The Working Time Directive issued by the European Commission (Directive 2003/88/EC) defines working time and provides for a maximum 48-hour working week, including overtime, rest periods and breaks, and a minimum of four weeks’ paid leave each year, to protect workers from adverse health and safety risks. To comply, workers must be required to work no more than 48 hours a week averaged out over a four-month reference period. The aim is to guarantee that workers do not work excessive hours or excessively at night, and are entitled to adequate rest and holidays.
In Poland, plans to extend the working time reference period from four months to one year have been discussed in the Tripartite Commission on Social and Economic Affairs since February 2012.
A similar extended reference period appeared in the anti-crisis legislation which was in force from July 2009 to December 2011 (PL0906019I). Independently of discussions in the Tripartite Commission, in December 2012, a draft bill outlining the proposed changes was submitted to parliament by MPs from the ruling Civic Platform (PO) Party. In the draft, among other things, MPs also proposed a reduction in the overtime bonus. The government and employers have also argued that flexible working time should become a permanent part of the Labour Code to help employers to protect jobs in times of economic slowdown.
Trade unions have opposed this, however, on the following grounds.
- Such changes would apply to all employees, including pregnant women, those working night shifts, employees older than 55, and employees working longer than 12 hours a day, contrary to the Commission’s Directive 2003/88/EC (concerning certain aspects of the organisation of working time). The changes pose a threat to employees’ health and safety and work–life balance.
- They would make it possible for employers to avoid paying overtime.
- At workplace level, in non-unionised workplaces employers will be able to introduce a new reference period if employee representatives agree. Such representatives may not, however, have been selected by a majority of workers and employees’ real participation in the changes is not guaranteed.
Since no agreement had been reached in the Tripartite Commission, the government decided to take unilateral action and press ahead with its proposed changes to the Labour Code.
Changes to working time regulations
The new legislation, changing the Labour Code and the Trade Union Act, was passed by parliament on 12 July 2013 and came into force on 23 August 2013.
The most important change is in the Labour Code, making it possible for employers to calculate working time over a one-year reference period if this can be justified by objective, technical or organisational reasons.
There are two proposed ways to introduce a longer reference period:
- in unionised workplaces where a company-level collective agreements exist, a new length of reference period must be included in the agreement or introduced in the weaker form of a separate agreement with trade unions;
- in non-unionised workplaces, the introduction of a longer reference period requires an agreement with workers’ representatives elected in accordance with the rules regarded as ‘customary’ in a given workplace.
If an extended working time calculation period creates a situation where an employee will not be able to work the full number of hours required by their contract in a given month, the employer will still be required to pay them at least a minimum wage. Each extension of the reference period must be reported to the National Labour Inspectorate.
Other changes to the Labour Code include the introduction of flexitime and other forms of working time organisation. The changes make it possible for employers to vary the time that work should start and to define the timespan in which an employee may choose to start work. These variations to more conventional working time arrangements can be introduced by the same methods as an extended working time reference period, or in response to a written request from an individual employee.
All three nationally representative union confederations have demanded the reversal of these changes in recent months. This demand featured during the general strike in the Silesia region in March 2013 (PL1304019I) and during the four-day long nationwide protests in September 2013.
The lack of government response to the unions’ objections is one of the reasons why union negotiators left the Tripartite Commission in June 2013. Union statements have also drawn attention to the contradictions between the current Polish legislation and International Labour Organization (ILO) Convention 135, which has been ratified by Poland.
The trade unions are preparing an application to the country’s Constitutional Tribunal on the basis that the current legislation does not guarantee adequate protection for workers’ representatives.
Employers, however, welcome the new legislation.
In a statement entitled Long awaited changes to the Labour Code come into force (in Polish), the Employers of Poland organisation (Pracodawcy RP) suggests that the new working time regulations will help to protect existing jobs and to create new ones, especially in companies dependent on seasonal employment.
Similar arguments have been put forward in an open letter, PKPP Lewiatan urges the president to sign the agreement on flexible working time (in Polish), addressed to the President of Poland, Bronislaw Komorowski. In it, the Polish Confederation of Private Employers (PKPP Lewiatan) expresses its support for the new law and argues for even greater flexibility in working time.
Adam Mrozowicki, Institute of Public Affairs and the University of Wroclaw, and Barbara Surdykowska, Institute of Public Affairs