Contributed by Wolf Theiss.
1.1. Background checks
Background checks are permitted to a very limited extent. According to the Labor Code, employers are entitled to demand very limited data from a job applicant, such as name and surname, date of birth, contact details indicated by the applicant, education, professional qualifications, and history of previous employment. However, information about the education, qualifications, and employment history may only be requested if it is necessary to perform a specific type of work or in a specific position.
Data on education, qualifications, and previous employment are confirmed by documents submitted by the applicant.
Certain background checks are permissible with the job applicant’s consent. Without such consent, the employer may neither contact former employers listed on the résumé nor verify references provided to ascertain the applicant’s performance and character.
Nevertheless, even with the applicant’s consent, the employer may not search for past criminal activity of the applicant and demand a clean record certificate from the National Criminal Register unless there is an explicit legal basis allowing the employer to demand such data.
1.2. Initial medical checkup
Before being allowed to work, an employee must undergo a mandatory initial medical checkup. The checkup is intended to confirm fitness for work and lack of contraindications to work in a given position. The initial medical checkup is performed at the employer’s expense by occupational health care services based on a contract concluded by the employer.
1.3. Legal presence
In order to hire employees in Poland it is not required to establish any legal entity in Poland. Employees may be hired directly by foreign entities.
If the registered seat of the foreign entity is located in the EU or European Economic Area (EEA), it will be required to register the entity with the Polish Social Insurance Institution (ZUS) as a remitter of social insurance contributions. An alternative solution is to agree with an employee that the employee may fulfill the employer’s contribution payment obligations on its behalf.
1.4. Employment contract
There are three types of employment contracts in Poland:
- contract for a trial period that may not exceed three months;
- open-ended contract – the most common and desired type of contract from the employee’s perspective;
- fixed term contract – may be concluded only three times between the same employer and employee. The fourth contract is considered to be an open-ended contract. The total maximum duration of all fixed-term contracts is thirty-three months. From the thirty-fourth month onwards, the contract is regarded as an open-ended contract. This restriction does not apply, and a longer fixed-term employment contract may be concluded in cases specified in the Labor Code, in particular, to replace an employee during the employee’s justified absence at work.
Mandatory elements of an employment contract include:
- parties to the contract;
- type of employment contract;
- the date of the conclusion of the contract;
- work terms and conditions, in particular: (i) the type of work, (ii) the place of work, (iii) remuneration for work corresponding to its type, and remuneration components; (iv) the working hours (full-time or part-time) and (v) the work commencement date.
In addition, an employer is obliged to inform an employee in writing within seven days of the conclusion of the employment contract about (i) the daily and weekly working hours; (ii) the frequency of the remuneration payment; (iii) the holiday entitlement; (iv) the length of the notice period; and (v) the collective bargaining agreement applicable to the employee (if any). If the employer is not obliged to adopt workplace regulations (mandatory for employers with at least fifty employees), the employee must be informed about: (i) the night-time hours; (ii) the place, date, and time of remuneration payment; and (iii) the manner of confirming arrival and presence at work and justifying absence from work.
Certain employment documents require a written form. These are, in particular, the employment contract or conditions as well as termination notice letter. The written form is also required under the pain of nullity for the non-compete agreement binding during and after employment, as well as for a contract based on which the employee transfers copyrights to the employer.
According to the current regulations, a handwritten signature on a document covering the content of a declaration of consent is sufficient for the written form to produce the legal effect. Equivalent to the written form is a declaration signed with an eIDAS-compliant qualified electronic signature.
The Act on the Polish Language requires that employment contracts and employment documents be executed in Polish if the employee is resident in Poland on the day of the conclusion of the contract and the work is performed in Poland. Additionally, documents may be executed also in a foreign language version; however, the Polish version prevails in case of any discrepancy between the two language versions if the employee is a Polish citizen.
A fixed-term or open-ended employment contract may be preceded by a trial period contract. The purpose of this type of contract is to check the employee’s qualifications and ability to be hired to perform a certain job.
The maximum duration of the trial period contract is three months. However, re-employment of the same employee for a trial period is permissible if the employee is to be hired for another type of work or is hired after a period of at least three years that lapsed from the date of termination or expiry of the previous employment contract if the employee is to be employed for the same type of work.
According to the planned amendment to the Labor Code, the duration of the trial period contract will depend on the duration of employment after the end of the trial period. If the employer envisages concluding a fixed-term contract for less than six months after the trial period, the trial period may not exceed one month. If the fixed-term employment contract after the trial period lasts at least six months but less than twelve months, the trial period may last two months. Only if the envisaged employment after the trial period lasts at least twelve months, will a three-month trial period be permissible. However, it is unclear when this new law will be adopted and come into force.
1.5. Executive employees
In Poland, “executive employees” have not been defined in the labor legislation. If executives are hired based on an employment contract, the general provisions of the Labor Code apply to them. However, they are covered by special rules regarding, in particular, overtime remuneration. Such rules apply to employees who manage the workplace on the employer’s behalf and employees who manage separate business units.
Employees who fall into one of these categories have no right to overtime remuneration. An exception applies to employees who manage separate business units if overtime work was performed on a Sunday or public holiday and no day off was granted for such work.
1.6. Employees versus independent contractors
There is no statutory checklist regarding differentiating factors between employees and independent contractors. The distinction between an employment relationship and a civil law contract such as a contract with an independent contractor is primarily determined by the definition of the employment relationship in the Labor Code, the case law, and legal doctrine.
The Labor Code sets out that by establishing an employment relationship, the employee undertakes to perform work of a certain type for the employer’s benefit, under the employer’s direction, at a place and time determined by the employer, and the employer undertakes to employ the employee in return for remuneration.
Consequently, elements of an employment relationship include (i) subordination to the employer: an employee must follow the employer’s orders and directions and work at the place and time determined by the employer; (ii) personal performance of the contractually agreed type of work by the employee with no right of substitution; (iii) regular payment of remuneration; and (iv) risk burden: the risk associated with the employment, including the economic, personal, technical and social risk, is borne by the employer.
The legal assessment of whether a relationship is an employment relationship or a civil law relationship is based on the principle of primacy of facts. By choosing a different “name” for a contract, the application of the Labor Code may not be avoided by the parties because the actual performance of a contract, rather than its wording, is decisive for the legal classification.
If an independent contractor is reclassified as an employee, the individual may claim employee benefits from the employer for the last three years, in particular overtime remuneration, allowance for work at night, sick pay, holiday pay, etc.
In addition, the employer will be regarded as a remitter for social and health security contributions and PIT withholdings and will be obliged to pay overdue amounts for the last five years together with default interests. The Social Insurance Institution (ZUS) may also impose on the employer an additional fee in the amount of 100% of the unpaid contributions.
Depending on whether the reclassified individual previously had the status of self-employed (sole trader, individual entrepreneur), further consequences may relate, in particular, to VAT settlement.
Moreover, entering into a civil law contract in circumstances where an employment contract should have been concluded constitutes an offense against the employee’s rights and may be subject to a fine of up to PLN 30,000 (approximately EUR 6,500).
1.7. Foreign employees
As a rule, foreign nationals need a legal residence in Poland, e.g., on the basis of a visa or a residence permit, and a work permit allowing them to work in Poland. However, this rule does not apply to nationals of the EU, the EEA, or Switzerland who may work in Poland without any work or residence permit. Polish employers may employ them in the same manner as Polish citizens. Nevertheless, foreign nationals are obliged to report their stay in the territory of Poland if the stay exceeds three months.
There are some further exceptions that allow foreign nationals to work in Poland without a work permit, e.g. foreign nationals with a refugee status obtained in Poland or holding a permanent residence permit in Poland. Moreover, nationals of Armenia, Belarus, Georgia, Moldova, or Ukraine may work for up to 24 months in Poland based on a declaration of entrusting work registered by the employer with the labor office in a quick and simple procedure.
Other nationals require a work permit. There are several types of work permits in Poland, such as:
- type A work permit granted to foreign nationals who will perform work in Poland on the basis of a contract with an entity whose registered office or branch, establishment, or another form of organized business activity is located in the territory of Poland;
- type B work permit granted to foreign nationals who will perform work as a member of the management board of a legal person entered in the entrepreneurs register or of a capital company in an organization, or who will manage affairs of a limited partnership or a limited joint-stock partnership as a general partner, or who will perform work as a commercial proxy and will stay in Poland for a period exceeding in total six months within the period of twelve consecutive months;
- type C work permit granted to foreign nationals who will perform work for a foreign employer and will be posted to Poland for a period of more than thirty days in a calendar year to a branch or establishment of a foreign entity or an;
- type D work permit granted to foreign nationals who will perform work for a foreign employer who does not have a branch, an establishment, or another form of organized activity in Poland, and will be posted to Poland to provide a service of a temporary and occasional nature (export service);
- type E work permit granted to foreign nationals who will perform work for a foreign employer will be posted to Poland for a period exceeding three months within the period of six consecutive months for a different purpose than indicated for the work permit type B, C, and D;
- type S work permit – permit for seasonal work.
Foreign nationals already legally residing in Poland may apply for a temporary residence permit without the need to obtain a separate work permit, e.g. a temporary residence and work permit which is issued to foreigners whose purpose is to work in Poland or a temporary residence permit for the purpose of performing work in a profession requiring high qualifications (Blue Card).
Special rules apply to nationals of neighboring countries, such as Belarus and Ukraine as well as some further countries. Due to the armed conflict in the territory of Ukraine Ukrainian nationals who arrived in Poland after 24 February 2022 may work in Poland without the need to obtain a work permit. Moreover, nationals of Belarus, Ukraine, Armenia, Georgia, and Moldova may work in Poland for 24 months without the need to obtain a work permit based on the aforementioned declaration on entrusting work.
In addition, the Polish government supports IT specialists from Belarus, Ukraine, Moldova, Georgia, Russia, Armenia, and Azerbaijan and offers them, upon fulfilling certain criteria, the so-called Poland Business Harbor (PBH) visa. The PBH program allows for fast-tracking visa application. Under the PBH program, IT specialists apply for a long-term type D national visa which allows them to cross the border and start working in Poland for a PBH partner company.
1.8. Remote work
An amendment to the Labor Code, which introduces provisions for remote work into the Labor Code, has been currently adopted. Remote work is defined as work performed wholly or partially at a place indicated by the employee and each time agreed with the employer, including the employee’s home, in particular by means of direct remote communication.
Remote work may be agreed upon by the employer and the employee either at the conclusion of the employment contract or during the course of employment. Moreover, the employer may instruct employees to work remotely during a state of emergency, a state of epidemic threat, or a state of the epidemic and for a period of three months after their cancellation or during a period in which it is temporarily impossible for the employer to ensure safe and hygienic working conditions at the employee’s current place of work due to force majeure.
In addition, remote work may also be carried out on an occasional basis, at the employee’s request up to a yearly limit specified by the new law.
Employers must prepare an occupational risk assessment for employees performing remote work taking into account, in particular, the impact of work on vision, the musculoskeletal system, and the psychosocial implications of this work. Prior to being allowed to work remotely, employees must confirm that they have read the risk assessment and information containing the principles of safe and healthy performing of remote work and agree to comply with them as well as confirm that healthy and safe conditions for remote work are provided at the remote workplace at the location indicated by them and agreed with the employer.
Moreover, employers are obliged to provide employees working remotely with materials and work tools necessary to perform such work and to ensure their installation, service, use, and maintenance. However, employers may agree with employees on the use of materials and tools not provided by them. In such a case, the employees are granted a cash equivalent. Furthermore, the employers may decide to cover the necessary costs related to the installation, service, use, and maintenance of work tools instead of providing these services. Costs of electricity and telecommunication services necessary for remote work must be covered by employers.
The obligation to cover the aforementioned costs may be replaced by a lump sum that should correspond to the anticipated costs incurred by the employee in performing the remote work.
2. Contract Modification
As a rule, employment contract modifications should be made in written form. However, this form requirement has no pain of nullity. If modifications are made through implicit acceptance by conduct, they are recognized by the courts.
A unilateral modification of contractual employment terms and conditions (including place of work, job position, etc.) by the employer requires special formalities and procedures. Unilateral changes must be introduced by an alteration notice. The employer terminates the existing conditions of work and/or remuneration and at the same time offers the employee new conditions with the aim of continuing the employment relationship under the altered conditions (notice with an offer of employment on new terms). If the employee refuses to accept these new conditions, the employment relationship will terminate with the lapse of the termination notice period. However, if the employee accepts the altered conditions, they become effective at the end of the notice period.
The terms and conditions of the employment may be also changed with the employee’s consent by concluding an annex to the employment contract.
As a general rule, any change in the employees’ tasks and duties that goes beyond the agreed type of work specified in the contract requires an amendment to the contract. As long as a minor change in the employees’ tasks is still compliant with the agreed type of work, a contract modification is not required. Moreover, the employee’s tasks may also be changed by an employer’s order provided such a change falls within the limits defined by the type of work as specified in the contract.
The restrictions on modifying employer policies or internal regulations depend on the type of these regulations. Generally, compulsory regulations are amended in the same way they are implemented. For example, the change of remuneration regulations, which are mandatory for employers with a certain number of employees, implementation of which requires an agreement with the enterprise trade union organization(s), must also be agreed with the enterprise trade union organization(s), if any.
At companies with trade unions, the change in workplace regulations should be agreed upon with trade unions within a set time limit. If an agreement may not be reached, employers modify the regulations on their own. The same applies to the change of these regulations.
Further policies, not required by law, for example, the code of conduct, anti-bribery, and corruption policy may be changed freely by the employer and do not need to be consulted. However, employees must be made aware of the changes before they come into force.
3.1. Termination types
In accordance with the Labor Code, there are three types of employment termination: with notice, without notice, and by mutual agreement.
- The termination with notice is regarded as a normal method of terminating an employment contract. It is not difficult to terminate an employee with notice. The main burden for this type of termination is the requirement to justify the termination. However, only termination of an open-ended employment contract with notice requires justification. No justification is needed in the case of termination with notice of a trial period contract or fixed-term contract. The termination reason(s) may not be ostensible, but must be real, specific, understandable from the employee’s perspective, and important enough to justify the termination.
The termination reason(s) may relate either to the employee (for example performance or attendance issues, failure to comply with employer’s instructions, using employer’s property for private purposes) or be attributable to the employer (for example restructuring, bankruptcy). In the case of termination for reasons unrelated to the employees, when the employer must choose some employees for dismissal from a pool of employees employed in the same or similar job positions, selection criteria are mandatory and must be indicated in the termination notice.
The intention to terminate an open-ended contract with notice must be consulted with the trade union provided the employee concerned is a trade union member or the employee’s rights and interests are protected by the union. The trade union must be notified about the intention to terminate the contract and the termination reason. Although the trade union may present reasonable reservation within five days, such reservation is not binding on the employer. After the lapse of five days, the termination notice may be served.
- Termination without notice by the employer is permissible only in cases stipulated in the Labor Code. The termination reason must be indicated in the termination letter. The employer may terminate the employment contract with immediate effect due to the fault of the employee, in particular in the case of a serious violation of basic duties by the employee. Moreover, termination without notice through no fault of the employee is permissible in the event of a long-lasting justified absence of the employee, particularly due to sickness.
Before the employer decides to terminate without notice an employee who is a member of a trade union or whose rights are protected by the trade union, the employer must notify the trade union of the termination reason. The trade union may present reservations and express its opinion within three days. However, this opinion is not binding on the employer.
- Termination by mutual agreement of the parties is permissible at any time, also during the notice period triggered by a termination notice served by one of the parties.
The mandatory element of mutual termination is the determination of the last day of employment. The parties are free to decide under which terms and conditions they terminate the employment. This type of termination does not require any justification or consultation with the trade union.
The statutory notice period is the same for the employee and the employer. The notice period depends on the type of employment contract and the length of the employment. The termination notice period of fixed-term and open-ended contracts is
- two weeks if the length of employment does not exceed six months,
- one month if the employment is at least six months but less than three years,
- three months in the case of employment of at least three years.
A three months’ notice period may be shortened by up to one month provided the termination is justified by reasons unrelated to the employee. The employee is eligible for compensation amounting to the remuneration for the shortened notice period.
The notice period for a trial period contract is shorter and ranges from three days to two weeks depending on the length of the trial period.
If the termination reason is not related to the employee, the employee is eligible for a statutory severance payment, but only if the employer employs at least 20 employees. The statutory severance payment depends on the length of service with the given employer and amounts to:
- one month’s remuneration if the employment has lasted less than two years;
- two months’ remuneration if the employment has lasted less than eight years;
- three months’ remuneration if the employment has lasted at least eight years.
The statutory severance payment is capped at 15 times the minimum monthly wage. The statutory severance payment cap in the period from January 1, 2023, until June 30, 2023, amounts to PLN 52,350 and from July 1, 2023 to PLN 54,000.
An employee’s activities may be restricted during employment and after termination, in particular through a non-compete agreement. The post-contractual non-compete agreement may be concluded with an employee who had access to particularly important information, the disclosure of which could damage the employer. In the agreement, the parties should specify the scope of the restriction, its time limit as well as the restricted territory.
The employee is eligible for compensation for compliance with the post-contractual non-compete obligation in the amount of at least 25% of remuneration received prior to the termination of the employment for the period corresponding to the duration of the post-contractual restriction. This compensation may not be included in the monthly salaries received by the employee during employment.
It is permissible to determine a contractual penalty for the violation of the post-contractual non-compete obligation.
3.2. Collective dismissal
Dismissals are collective if, during a period of thirty days, the dismissals cover:
- at least 10 employees, if the employer has fewer than 100 employees;
- 10% of employees, if the employer has between 100 and 299 employees; or
- 30 employees, if the employer has 300 employees or more.
These limits also include employees whose employment contracts are terminated by mutual agreement on the employer’s initiative, if termination in such a manner applies to at least five employees.
The aforementioned period of 30 days starts on the day the termination notice is served on the first employee. Consequently, collective dismissals will not be triggered if dismissals are carried out over a longer period and employees are dismissed gradually, in “waves,” without reaching the thresholds within any period of 30 days. Timing dismissal waves are accepted.
3.3. Unlawful termination
An employee who does not accept the termination may appeal against the termination arguing that it was unlawful and/or unjustified. The dismissed employee may claim reinstatement or compensation. However, if a fixed-term contract or trial period contract was terminated by notice only compensation may be claimed.
Reinstatement means re-employment under the same conditions as immediately before the dismissal. The labor court may reject the claim for reinstatement if it determines that it is impossible or inexpedient to grant such a claim and awards compensation instead. The reinstated employee is entitled to remuneration for the period of being out of work, but not more than two months. Only protected employees are entitled to remuneration for the entire period of being out of work.
The dismissed employee may also decide to claim compensation instead of reinstatement. In such a case, compensation may amount to a maximum of three months remuneration.
The maximum compensation for unlawful or unjustified termination amounts to three months’ remuneration. The compensation is calculated according to the rules applicable to the calculation of the payment in lieu of a holiday.
Compensation for unjustified or unlawful termination of an employment contract granted by the court is exempt from personal income tax and is also not subject to social and health insurance. Compensation agreed upon by the parties through a settlement agreement is taxed.
According to the Polish Civil Code, it is possible to revoke a declaration of intent (e.g., termination notice) made to another person if the withdrawal reached that person at the same time as or before the declaration. Thus, if an employer sends a termination notice and then revokes it, and the latter manages to reach the employee at the same time as the termination notice or even before the termination notice reaches the employee, the termination notice is not binding, and therefore the employment relationship will continue.
Withdrawal of termination notice is also possible after the notice has been served on the employee if the employee agrees to such withdrawal.
Polish law provides special dismissal protection to certain groups of employees. A termination notice may not be served on protected employees during the entire protection period. Employment contracts of protected employees may be terminated only in the case of the employer’s bankruptcy or liquidation. Protected employees include, in particular:
- employees in pre-retirement age (four years before reaching the statutory retirement age, which is 60 for women and 65 for men);
- pregnant women, employees on maternity leave, paternity leave, parental leave;
- employees on holiday leave or during any period of justified absence up to a time limit defined by law, in particular employees on sick leave;
- employees who are members of the management of an enterprise trade union organization or members of the enterprise trade union organization authorized to represent this organization before the employer;
- employees who are social labor inspectors;
- members of a works council.
The application of a disciplinary penalty does not exclude the application of other liability to the employee, even for the same misconduct. The imposition of a disciplinary penalty on an employee does not exclude the possibility of treating the same misconduct which gave rise to the warning as a ground justifying the termination of the employment contract, in particular where the employee’s behavior has not changed after the warning.
4. Wage And Hour
In Poland, every year the amount of the national minimum wage is determined either by the Social Dialogue Council or the Council of Ministers. In 2022, it was PLN 3,010 (approximately EUR 642.50). In 2023, the minimum wage will increase in two stages. As of 1 January, the minimum wage is PLN 3,490 (EUR 745), and as of 1 July, it will increase to PLN 3,600 gross (approximately 770).
The parties may freely decide about the currency in which the wage is paid. However, the contractually agreed monthly wage for a full-time employee may not be lower than the national minimum wage.
Besides the monthly base salary specified in the employment contract, employees are eligible for certain additional allowances, in particular, allowance for night work, overtime allowance, per diem allowance in case of business trips, etc. In the case of employees permanently working outside the workplace, it is permissible to replace the overtime allowance or nightwork allowance with a lump sum. Though the lump sum should correspond to the expected scope of work at night or overtime work.
4.2. Working time
The standard daily working time may not exceed eight hours and an average of 40 hours in an average five-day working week in the adopted settlement period. The settlement period may not exceed four months; however, if this is justified by objective, technical, or work organization reasons, the settlement period may be extended even to 12 months. There are no minimum daily working hours.
If the daily working time is at least six hours, employees are entitled to a 15-minute rest break, which counts as working time. An employer may introduce one additional daily break from work, not exceeding 60 minutes, which does not count as working time, for employees to have a meal or to handle personal matters. Lunch allowance is not mandatory.
The total weekly working time, including overtime work, may not exceed 48 hours on average in the adopted settlement period.
Overtime work is allowed only if (i) such work is necessary to perform a rescue operation in order to protect human life or health, to protect the property or the environment, or to repair a breakdown, or (ii) to meet the special needs of an employer.
The maximum yearly overtime due to the employer’s special needs is 150 hours per employee. However, this limit may be increased by workplace regulations, a collective bargaining agreement, or an employment contract up to 416 hours per year.
The statutory vacation entitlement is either 20 or 26 days in a calendar year, depending on the overall years of employment. Employees who have worked for less than 10 years are entitled to 20 days, and employees who have worked for at least 10 years are entitled to 26 days. Any periods of former employment must be taken into account regardless of the employing entity. Also, periods of education are included, for example, graduation from university counts as eight years of employment.
During employment, vacation days may not be compensated in salary. Payment in lieu of unused holiday is permissible only if the employment is terminated and the employee still has an unused holiday.
4.4. Sick leave
Employees who are incapable to work due to sickness or injury are entitled to time off and sick pay. During the first thirty-three days of incapacity to work due to sickness or injury in a calendar year (or fourteen days in the case of employees who have reached the age of 50), the employer pays the employee a minimum of 80% of the employee’s average remuneration calculated on the basis of the remuneration received for the twelve consecutive months preceding the period of incapacity to work. Employees are entitled to 100% of their remuneration if incapacity to work is caused by an accident while traveling to or from work, sickness during pregnancy; or medical tests carried out on cell, organ, or tissue donor candidates.
From the 34th day (or 15th in the case of employees aged 50 or over) of any sickness, employees are entitled to sickness benefits from the state. Sickness benefit is paid directly either by the Social Insurance Institution (ZUS) or by the employer employing over twenty persons on behalf of ZUS. The amount of sickness benefits paid by the employer on behalf of ZUS is then deducted from the social security contributions due from that employer. The employer does not finance any sickness benefits.
5. Collective Labor Law
5.1. Trade unions
A trade union may be formed by a resolution adopted by at least 10 employees or individuals performing gainful work on another basis than an employment relationship, provided that they do not employ other people for such work. In addition, those persons must adopt the trade union’s statutes and elect a founding committee of three to seven persons. Within thirty days of adopting the resolution to establish the trade union, an application for registration of the trade union must be submitted to the National Court Register under the pain of the founding resolution becoming invalid. The trade union acquires legal personality as of registration in the National Court Register.
A trade union may be either an enterprise trade union organization or an inter-company trade union organization that covers more than one employer, with each employer having at least one person who is a member of the organization. The inter-company trade union organization may be regional or national in character.
Moreover, trade unions may form federations (associations of more than one trade union) or confederations (national groups of trade unions).
A representative within the meaning of the Trade Unions Act is (a) an enterprise trade union organization which is an organizational unit or a member organization of a supra-enterprise trade union organization recognized as a representative within the meaning of the Act on the Social Dialogue Council which affiliates at least 8% of the individuals performing gainful work for the employer, or (b) an enterprise trade union organization which affiliates at least 15% of individuals performing gainful work employed for the employer. If none of the enterprise trade union organizations meets the aforementioned requirements, the trade union organization that affiliates the largest number of individuals employed by the employer is regarded as the representative organization.
The main trade unions’ rights include:
- the right to conduct collective negotiations and conclude collective bargaining agreements as well as other agreements stipulated by the labor law provisions,
- the right to monitor compliance with labor law and to participate in supervising compliance with occupational safety and health rules. In the event of a justified reason to suspect that there is a danger to the life or health of people in the workplace or in the place designated by the employer for work, the enterprise trade union organization may request the employer to carry out appropriate examinations, at the same time notifying the district labor inspector.
- the right to take a position on individual employee issues within the scope set out by the labor law (e.g., in the case of termination without notice or termination of an open-ended contract with notice of an employee who is a union member and whose rights are protected by the union) and on individual issues of individuals performing gainful employment;
- managing the activities of the social labor inspection and cooperating with the state labor inspection;
- trade unions must be notified about the transfer of a business or undertaking. If the employer intends to take measures concerning the employees’ terms and conditions of employment, the employer is obliged to enter into negotiations with the enterprise trade union organization.
- in the case of collective dismissals, trade unions must be notified and consulted. An agreement specifying the principles of dismissal proceeding in matters concerning employees covered by collective dismissals should be concluded with the unions.
- Certain mandatory internal labor regulations must be agreed upon with the trade unions, in particular remuneration regulations, bonus and award regulations, company social benefit fund regulations, etc.
- A trade union representative at the national level has the right to issue an opinion on drafts of legal acts within the scope of trade union tasks, as well as have the right to make proposals for the enactment or amendment of a law or other legal act in matters covered by trade union tasks.
5.2. Collective bargaining agreements
Collective bargaining agreements determine the terms and conditions to be met by the employment relationship as well as the obligations of the parties to the agreement.
Collective bargaining agreements are concluded for all employees employed by the employers covered by its provisions unless the parties in the agreement agree otherwise.
On the day the collective bargaining agreement comes into force, its more advantageous provisions replace, by virtue of law, the existing terms of the employment contract. Any provisions of the collective bargaining agreement which are less advantageous to the employees are introduced by an alteration notice. The employer must terminate the existing employment terms and offer new terms resulting from the collective bargaining agreement. If the employee refuses to accept the altered terms, the employment terminates at the end of the notice period.
5.3. Works councils
Works councils are not mandatory and may only be established in companies with more than 50 employees. Once the average number of employees in the last six months is at least 50, the employer should notify the workforce about it. In this case, at the written request of a group of at least 10% of the employees, the employer must organize an election of works council members. Without the initiative of the employees, the employer has no obligation to form a works council.
Works councils have information and consultation rights. The works council must be informed by the employer about activities and economic situation of the company and anticipated changes in this respect and must be informed and consulted on the situation, structure, and expected developments of employment, as well as on any measures aimed at retaining the level of employment and measures that are likely to lead to substantial changes in the work organization or contractual relations (e.g., planned dismissals, transfer of undertaking, etc.). The employer shall undertake consultations with the works council in order to reach an agreement. The works council has the right to present its opinions which are not binding on the employer.
A works council may exist next to other forms of employee representation, in particular, trade unions. Works councils are not popular in Poland and their number is extremely low.
6. Transfer Of Undertakings
Poland implemented the Acquired Rights Directive into the Polish Labor Code and the Trade Unions Act. Consequently, upon transfer of a business or undertaking, employees are entitled to transfer to a new employer with all their acquired contractual rights and obligations and under the terms of employment agreed with the transferor.
Employers are required to inform the trade unions or, if there are no trade unions, individually each employee concerned about the transfer at least thirty days before the planned date of transfer of the business or undertaking or a part thereof. Moreover, the transfer is also subject to an information and consultation obligation with the works council (if any) at least 30 days before the transfer occurs.
Failure to inform the employees or the trade union does not affect the effectiveness of the transfer of undertaking. However, the failure to inform the employees about the transfer results in the employer’s liability for damages suffered by the employees as a result of the failure.
Moreover, the person responsible for the failure to inform the trade union on time about the transfer may be subject to criminal liability.
As a rule, under Polish law employees may not generally object to the transfer. However, within two months of the date of the transfer, the employee may terminate the employment relationship without notice, upon seven-day advance notification.
7. Labor Investigation
Although there is no official blacklist of the most significant employment law violations, certain violations may result in the exclusion of public procurement. Such violations include, in particular, entrusting work to foreign nationals without legal residence in Poland, being in arrears with the payment of taxes or social and health insurance contributions, and violating obligations in the field of social or labor law. Employers may be excluded from public procurement if a member of their management or supervisory board or a commercial proxy has been validly sentenced for an offense against the rights of persons performing paid employment determined in the Criminal Code or a minor offense against the rights of an employee.
The National Labor Inspectorate (Panstwowa Inspekcja Pracy – PIP) is the authority created in order to supervise and inspect the observance of labor law, in particular occupational safety and health rules and provisions on the legality of employment. Inspectors have the right to conduct an inspection of employers and to apply legal measures if violations of labor law or provisions on the legality of employment are found. Such measures include fines imposed in the form of penalty notices as well as lodging requests for punishment with courts.
An inspector may impose a fine of up to PLN 2,000 may on a person acting on the employer’s behalf who has committed a minor offense, e.g., a member of the management board or HR manager. If the person liable for the minor offense has been punished for an offense against employee rights at least twice within the last two years, a fine of up to PLN 5,000 may be imposed.
Moreover, the PIP may choose to take the matter to court. In such a case the PIP acts as prosecuting counsel. The court may impose a fine ranging from PLN 1,000 up to PLN 45,000, depending on the type of minor offense. If the infringement is not remedied, the person liable for the infringement may also be subject to criminal liability.