Paweł Lasota

How the size of a workplace union affects its entitlements

It is not enough for a union to have the required number of members at a workplace. It must also notify the employer of the number of members within a period provided by law. What if it fails to do so?

The Trade Unions Act, the Labour Code, and other specific acts give workplace trade union organisations various rights with respect to individual and collective labour law.

However, the rights of a workplace union depend to a large extent on the number of members in the given organisation. Under Art. 251(2) of the Trade Unions Act, the entitlements of a workplace trade union organisation are vested in an organisation with at least 10 members who are employees or persons working under a piecework agreement with an employer covered by the actions of the organisation, or officers serving in a unit covered by the actions of the organisation. This provision also imposes a reporting obligation on the trade union organisation, which is required to submit information each quarter (by the 10th day following the end of the quarter) on the total number of members of the organisation.

What happens if the organisation fails to present such information to the employer by the required time? This situation was the subject of analysis by the Supreme Court of Poland in its judgment of 15 November 2006 (Case No. I PK 135/06). There the court held that on the issue of the entitlements of a workplace trade union organisation, the employer is bound by the quarterly information submitted by the organisation pursuant to Art. 251(2) of the Trade Unions Act. The court also held that the number of members of the union as of the date on which the information was submitted to the employer pursuant to this provision was the relevant number for exercise of the trade union’s entitlements. An employer which did not receive information about the number of members of the union organisation by the deadline set forth in the act had the right to assume that from that date, the workplace trade union organisation did not hold such statutory entitlements. However, the court did not rule out the possibility that the organisation could later show that it had at least 10 members and could thus exercise such entitlements, despite the failure to submit this information to the employer by the statutory deadline.

Thus according to the Supreme Court, what is relevant from the point of view of the union organisation’s entitlements is the actual, objective number of members, rather than the information about the number of members.

This position was significantly revised by the resolution of a seven-judge panel of the Supreme Court dated 20 December 2012 (Case No. III PZP 7/2012). According to the resolution, failure by the workplace trade union organisation to submit information about the number of members by the statutory deadline means that actions taken by the employer without the required cooperation with the union organisation before such information is submitted by the organisation are not defective. The Supreme Court reasoned that this interpretation is consistent with the system of law and with the philosophy behind the 2002 amendment of the Trade Unions Act adding Art. 251. Nor is it in conflict with the constitutional right of establishment and operation of trade unions, because the unions’ entitlements in individual and collective employment matters are governed by statute. The court also pointed out that Art. 251 should be interpreted as a whole. The entitlements of a union organisation with at least 10 members are directly connected with the duty to notify the employer of this fact in the specific manner provided in the act. The legislative intent was to reflect and protect the interests of both stakeholders—the trade union and the employer. The court also found that the inability to exercise the entitlements of a union organisation as a result of failure to submit the information to the employer under Art. 251(2) is not excessively harsh, because the obligation imposed on the organisation is not burdensome and requires only a minimum of effort. Finally, it could not be accepted that no sanction at all would follow from the failure of a union organisation to comply with the reporting requirement, which would conflict with the principle of rational legislation.

Thus under the current position of the Supreme Court of Poland, until a workplace trade union organisation submits the information required by Art. 251(2) of the Trade Unions Act, actions taken by the employer without the required cooperation with the union organisation are not defective.

Paweł Lasota, Employment Law Practice, Wardyński & Partners