Deregulation in Social Dialogue: the End of Written Form as the Only Option in Dealings with Trade Unions and Works Councils

A government bill amending the Trade Unions Act and the Act on Informing and Consulting Employees has been submitted to the Sejm. Prepared by the Ministry of Family, Labour and Social Policy as part of the work of the Government Deregulation Team, the bill introduces the possibility for an employer to communicate with trade unions and works councils in documentary or electronic form — where until now only written form was permitted.

I. The problem the amendment is meant to solve

The provisions currently in force under the Trade Unions Act of 1991 and the Act on Informing and Consulting Employees of 2006 use the expressions “in writing” and “written”, which — in the absence of an equivalent of Article 300 of the Labour Code in collective labour law — means a requirement that the document be in paper form. The Civil Code provisions on documentary and electronic form (Article 781 and Article 651 of the Civil Code) do not apply here directly. In practice this means that even routine correspondence — for example a request from the board of a workplace trade union organisation for the number of persons protected as managerial staff — must be in paper form, even though internal workplace communication has long been conducted mainly by electronic means.

II. Scope of the proposed changes

1. The Trade Unions Act

• Article 32(9¹) — a request from the board of a workplace trade union organisation for notification of the number of persons constituting managerial staff will be capable of being submitted in writing, in documentary form or in electronic form. The employer’s deadline for a reply remains unchanged at 7 days.
• The new Article 32¹ — the employer and the workplace trade union organisation will be able to provide in a collective agreement or in an accord that the information referred to in Article 26¹(1) (information on the transfer of an establishment to a new employer) and in Article 32(9¹), first sentence, may also be provided in documentary or electronic form.

Importantly, the extension of the range of permissible forms is not automatic — in both cases it depends on the will of the parties as expressed in a collective agreement or accord. During the consultation stage, the drafters withdrew their original idea of amending Article 28 of the Act (concerning the provision of information requested by a union), leaving that issue unchanged — the provision still does not expressly specify the form of the employer’s reply.

2. The Act on Informing and Consulting Employees

• Article 13(2) — a works council will be able to submit a request for information in documentary or electronic form as well, rather than — as until now — only in writing.
• Article 13(3) — the employer will be able to provide information in writing, in documentary form or in electronic form, with the choice of form requiring the prior acceptance of the works council.
• Article 5(1) — points 1a and 1b will be added, allowing the works council and the employer to agree the form of the request and the form in which information is provided as part of their arrangements on the principles and procedure of cooperation. Only in the absence of such arrangements will the statutory rules apply.

Unlike the solution adopted in the Trade Unions Act, works councils — as bodies not entitled to conclude collective agreements — do not need an additional instrument of collective labour law in order to use the new forms of communication; an arrangement with the employer suffices, or, failing that, the statutory provision applies directly.

III. What the change does not cover

The bill deliberately limits the scope of deregulation. It does not extend to provisions concerning individual employee rights, such as the written request for union dues to be deducted from pay (Article 33¹ of the Trade Unions Act). During consultations, the Minister of Infrastructure’s proposal to extend deregulation to further provisions (including Article 25¹, Article 29, Article 32(9²) and Article 8(1) of the Act on Informing and Consulting Employees) was also rejected — it was considered to go beyond the mandate developed by the Deregulation Team and, in part, to concern matters of a constitutive character (such as a request to establish a works council).

IV. The consultation process and the positions of the social partners

The bill was consulted with representative trade union and employer organisations and reviewed by the Social Dialogue Council, the Chief Labour Inspector, the Ombudsman, the SME Ombudsman and the Joint Commission of Government and Local Government.

Key objections were raised by NSZZ “Solidarność”, OPZZ and the Trade Unions Forum, pointing among other things to:

• the risk that flexible forms of communication will be used against union organisations, especially at employers unsympathetic to unions (invoking Article 61 § 2 of the Civil Code on the moment a declaration of will in electronic form is made);
• the absence of the presumption under Article 245 of the Code of Civil Procedure in the case of documentary form, which may make proof more difficult in court disputes concerning the special protection of union activists;
• terminological inconsistency between “documentary form” and “electronic form” against the background of the Labour Code;
• the need to make the use of the new forms dependent on the union side’s consent rather than a unilateral decision of the employer.

As a result of the consultations, the drafters partly took those comments into account — the amendment to Article 28 of the Trade Unions Act was dropped, and it was clarified that new forms of communication in dealings with trade unions require regulation in a collective agreement or accord and cannot be imposed unilaterally by the employer.

The Institute of Civic Affairs also took part in the public consultations, calling for additional safeguards against the digital exclusion of works council members (including a duty to provide an alternative form of communication and confirmation of receipt of information). Those comments were not accepted — the Ministry argued that the provision as drafted already requires the chosen form to allow the council genuinely to acquaint itself with the matter, and that duplicating communication channels would risk organisational chaos and uncertainty as to the running of deadlines.

V. Consequences for businesses

According to the regulatory impact assessment, the bill generates no costs for the public finance sector or for micro and small enterprises (where trade unions and works councils are in practice absent — works council elections concern employers with at least 50 employees). Its greatest practical significance will be for large and medium-sized employers with several union organisations or a works council in place; for them, the informalisation of communication channels is intended to shorten document turnaround times and reduce administrative burdens.

VI. Entry into force

The act is to enter into force 14 days after publication. The bill provides for no transitional provisions — the new rules on the form of communication will also apply to matters initiated before the amendment enters into force, in accordance with the principle of the immediate effect of the new act.