Agnieszka Lisiecka, Magdalena Świtajska

How far does a trade union’s right to information extend?

An employer has a duty to share with a trade union only information that is necessary to conduct union activity. But this covers a wide range of information about the employer’s situation.

One of the key entitlements of trade unions in Poland is set forth in Art. 28 of the Trade Unions Act of 23 May 1991. It imposes on employers a duty to provide trade unions, upon request, information necessary to conduct union activity, and more specifically information concerning employment terms and pay rules. In practice, the type and scope of information requested by trade unions are sometimes doubtful, particularly if the connection between the information and union activity is indirect or non-obvious.

Although there are differing views, it is well-established in the legal literature that the trade unions’ right to information under this regulation is not unlimited. It is limited primarily by the condition referred to in the regulation that the information be necessary to conduct union activity, and moreover by the scope of the functions and entitlements of trade unions provided by the relevant regulations of the Trade Unions Act and other laws, such as the Labour Code and the Act on Resolution of Collective Disputes. A request for information by a trade union must in any case fit within these bounds. On the other hand, in line with current trends, the specific scope of information which a trade union may demand from an employer under Art. 28 of the Trade Unions Act is evolving over time, and increasingly often extends not only to information directly concerning the interests of employees, but also, broadly speaking, concerning the situation of the employer which may have an impact on the employees’ interests. Following trends in EU law and corresponding national legislation concerning employee participation in workplace issues, such as the European Works Councils Act, trade unions have a right to information concerning, for example, the economic and financial situation of the employer and its opportunities for growth, and plans concerning the workplace and its operations, such as organisational structures, work methods, and changes in business profile.

Notably, under Art. 28 of the Trade Unions Act, the employer has an obligation not only to provide ready information falling within these bounds, but also to prepare, for example, appropriate lists and summaries based on information in the employer’s possession.

However, the trade union’s right to information under Art. 28 of the Trade Unions Act does not exclude the applicability of regulations protecting the personal data of employees. It would not violate data protection regulations to provide the trade union with information concerning pay for specific jobs or trades, so long as such information cannot be used to determine the pay received by specific individuals, but it would be impermissible to provide the trade union information concerning the pay of a specific employee or other personal data of the employee without his or her prior voluntary consent.

The trade union has no obligation to justify in any way its request for information under the act. However, there is nothing preventing the employer from requesting a justification from the trade union, particularly if the request raises doubts as to whether the information is essential for conducting union activity or is connected with the statutory purposes and functions of the trade union. Although the law does not provide any means to enforce the request for such justification, the trade union’s failure to cooperate in this respect would make it more difficult to ascribe fault to the employer or accuse the employer of hindering trade union activity (Art. 35(1)(2) of the Trade Unions Act) if the employer refuses to provide the requested information to the union.

The regulations do not address the timeframe or procedure in which the employer is required to provide information requested by the trade union. There is nothing preventing the union from specifying a deadline in its request, or specifying the manner in which the information should be provided, e.g. in the form of copies of documents or an opportunity to review the documents. Absent such instructions, the employer generally has discretion in this respect. Nonetheless, in order to avoid an accusation of hindering trade union activity, the employer should not delay providing the information without good cause.

Agnieszka Lisiecka and Magdalena Świtajska, Employment Law Practice, Wardyński & Partners