Employers in which the interests of employees are represented by trade unions are certainly familiar with the term "collective dispute". In today's entry we will bring you closer to what collective disputes at workplaces may concern, as well as what obligations the employer has in connection with an initiated dispute.
The legal act that regulates the issue of collective disputes is the Act on Resolution of Collective Disputes of 23 May 1991. (i.e., dated December 13, 2019, Journal of Laws of 2020, item 123, hereinafter: the "Act").
An industrial dispute may only be initiated and conducted on behalf of employees by a trade union. A group of employees, although having common collective interests, is not entitled to represent its rights in an industrial dispute. A dispute can be initiated by any trade union representing the interests of a few, part or all of the employees in a given workplace.
The subject matter of an industrial dispute may be working conditions, salaries or social benefits, as well as trade union rights and freedoms of the employees or other groups which have the right to associate in a trade union. It is not allowed to conduct a collective dispute in order to support individual demands of the employees, if their settlement is possible in the proceedings before the body that settles disputes over the claims of the employees (for example, a collective dispute cannot be conducted in the matter of payment of the vacation benefit paid from the company social benefit fund).
A collective dispute is initiated by a trade union addressing certain demands to the employer. The date of commencement of collective dispute is regulated in a specific manner - a dispute exists as of the date of submission of specific demands by an authorized entity to the employer, if the employer did not take into consideration all demands within the period determined in the submission, not shorter than 3 days. The trade union organization initiating a dispute may warn the employer that a strike will be called if the demands submitted are not accepted. The day of the announced strike cannot fall before the lapse of 14 days from the day of the notification of the dispute.
The provisions of the Act do not impose an obligation on the employer to respond to the demands of the trade union organization and to answer the demands formulated. However, the employer is obligated to enter into negotiations with the aim of resolving the dispute by way of an agreement and notify the competent Regional Labor Inspector about the dispute. The employer cannot evade the obligation to conduct negotiations even if the employer knows in advance that he is unable to meet the employees' demands. The Act indicates that negotiations should be undertaken immediately, which means that they should start as soon as possible. Negotiations are intended to be conducted by the parties to an industrial dispute in direct negotiations and should be conducted in good faith by each party.
Negotiations, which may include one or more meetings, end with the signing of an agreement by the parties and, if no agreement is reached, the drawing up of a record of differences indicating the positions of the parties. The law does not indicate in detail what should be included in the record of differences - usually its content includes a list of demands of the trade union organization, a summary of the negotiation process indicating which demands have been fulfilled and which remain in dispute, as well as the positions of the parties after the negotiations.
If, after the negotiations, the trade union organization continues to support the demands made, the collective dispute enters a further stage, i.e. the stage of mediation.
Mediation can only be conducted by a person providing a guarantee of impartiality, namely the mediator. The parties in a dispute jointly select the mediator, and if they fail to agree on who the mediator should be, further proceedings are conducted with the participation of a mediator appointed by the Minister of Labor from the list of mediators kept by the Minister - in that case the mediator is appointed at the request of one of the parties in the dispute. The Act does not indicate when the 5-day deadline for submitting a request for appointment of a mediator to the Minister is to be counted. The doctrine points to two initial events that start the deadline: the date on which the record of differences is signed (or the end of negotiations if the record of differences is not signed) or the date on which the trade union notifies the employer that it maintains its demands. Since the trade union organization is not obligated to send the employer a formal notice that the collective dispute is being maintained, it is more practical to count the indicated deadline from the date of signing the record of differences.
The mediator is to be paid for conducting the mediation. As a general rule, the parties to an industrial dispute bear the costs of the mediation proceedings in equal shares. However, the parties may agree on a different division of the costs; in particular, the costs may be borne entirely by the employer or the trade union organization. The mediator's minimum remuneration cannot be lower than that specified in the Regulation of the Minister of Economy and Labor on the conditions for remunerating mediators from the list established by the Minister in charge of labor dated 8 December 2004. (Dz.U. No. 269, item 2673). The minimum remuneration is: PLN 388 for the first day of mediation, PLN 311 for the second day of mediation and PLN 235 for the third and every subsequent day of mediation.
It is important to note that in the event that the course of mediation proceedings gives rise to the assessment that such proceedings will not lead to a resolution of the dispute before the expiration of the strike deadline (indicated in the Notice of Dispute Initiation or within a deadline extended at the mediator's request), the organization that initiated the dispute may organize a warning strike once and for a period not exceeding 2 hours.
Mediation proceedings, just like the negotiation stage, end with the parties signing an agreement and, if no agreement is reached, drawing up a record of differences indicating the parties' positions. The above actions are performed with the participation of the mediator. Failure by the parties to reach an agreement in mediation proceedings entitles a trade union organization to take strike action. The law does not specify what is meant by strike action - it is assumed that it is a type of pressure exerted on the employer consisting in refraining from work in order to conduct a dispute.
The final stage of an industrial dispute is the proceedings before the arbitration college. This stage is optional in nature. A trade union organization acting in the interest of the employees may, without exercising the right to strike action, submit the dispute to the resolution of a college of social arbitration. Such colleges operate at the district courts where the labor and social security court operates. In the case of proceedings before a college of arbitration, it is important to note that the decision of the college is binding on the parties to the dispute unless either party decides otherwise before submitting the dispute to the resolution of the college.
After reading the above information for employers, the question may arise: should one fear the initiation of an industrial dispute at the workplace? The emergence and conduct of an industrial dispute certainly evokes emotions on both sides, both on the employer's side and on the trade union's side, nevertheless, both parties should make every effort to ensure that the dispute proceeds correctly, with due respect for the other party and, as far as possible, to reach an agreement, but it should be emphasized that this is not always possible. With respect to the employer, attention must be paid to the necessity of acting in accordance with the provisions of the Act, in particular the obligation to notify the district labor inspector within the set time limit, to start negotiations and to participate in them, as well as in the mediation proceedings in good faith, which in turn will make it possible to protect and defend oneself against possible charges of interference by the employer in the initiation and conduct of the collective dispute, which under the Act are offenses punishable by a fine or a penalty of restriction of liberty.
Legal Adviser Dorota Mercik-Swatek
The author is a legal advisor, managing attorney in the Intellectual Property and Labor Law Practice