Darmowy fragment publikacji:
Chapter 1. Sources of Polish Collective
Employment Law
Krzysztof W. Baran
1. The concept and hierarchy of sources of labour law
In the legal science, the concept of sources of labour law has two different
meanings. On the one hand, it may be understood as the sources of creation
of law (fontes iuris oriundi) and on the other hand – as sources of cognition
(knowledge) of law (fontes iuris cognoscendi). Since a dominant model in
the Polish normative system is the model of statutory law, it is reasonable to
present the sources of labour law in accordance with the fontes iuris oriundi
formula. With regard to the scope of application, the sources of labour law
may be divided into general sources and specific sources of law1. The latter are
characteristic mainly of the collective employment legislation system since they
are not present in other branches of law.
A model hierarchy of sources of labour law may be presented in the form
of a pyramid. At the top of the pyramid there are constitutional norms2 and
EU laws3. Those which are sufficiently precise are considered self-executing and
are directly applicable. Apart from the constitutional norms, also international
agreements and acts have their place in the hierarchy of sources of labour law.
The binding force of both categories of the legal acts is uniform. However, if
an act cannot be reconciled with an international agreement ratified by the
1 See: K.W. Baran, D. Książek, [in:] K.W. Baran (ed.), System prawa pracy. Część ogólna. Tom
I [The System of Labour Law. General Part, Volume I], Warszawa 2017, p. 646 ff. and the literature
referenced there.
2 See: J. Oniszczuk, [in:] K.W. Baran (ed.), System prawa pracy. Część ogólna... [The System
of Labour Law. General Part...], p. 668 ff. and the literature referenced there; A. Sobczyk, Prawo pracy
w świetle Konstytucji RP, tom I i II [Labour Law in the Light of the Constitution of the Republic of Poland,
Volume I and II], Warszawa 2013, passim.
3 See. K. Walczak, [in:] K.W. Baran (ed.), System prawa pracy. Część ogólna… [The System
of Labour Law. General Part…], p. 800 and the literature referenced there.
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Chapter 1. Sources of Polish Collective Employment Law
President upon prior consent of the Parliament, then according to the conflict
of laws principle expressed in Article 91(2) of the Constitution of the Republic
of Poland, the international agreement shall have precedence over the act.
Due to the fact that provisions of international law are not uniform in nature,
under Article 93(3) of the Polish Constitution and in connection with A rticle 9
within this category of sources of law priority should be given to the law of the
European Union. Such interpretation correlates with an idea of supremacy of
EU provisions, both in the international and domestic order, deeply rooted in
the acquis communautaire.
The sources of labour law include also legal acts of limited personal and
territorial application in the employment relations (such as collective agreements,
arrangements, internal rules). Since they are not generally applicable, they are
called in the doctrine the specific sources of law. For this reason, they should be
placed below the hierarchy of legal acts defined in Article 87 of the Constitution
of the Republic of Poland. Often their relation to statutory provisions in a broad
sense is characterised by the autonomic scope of regulation.
Article 9 of the Labour Code clarifies the mechanisms of priority of
application of particular acts of labour law. Article 9 § 2 defines a relation
between the general and the specific sources of labour law in accordance with
favourability principle. According to this Article, the provisions of collective
agreements and arrangements, internal rules and statutes cannot be less
favourable to workers than the provisions of the Labour Code and of other laws
and implementing acts.
On the other hand, Article 9 § 3 of the Labour Code governs the intra-
normative relations within the specific sources of labour law. In this sense, the
principle of favourability is also dominant4, which means that the provisions
of internal rules and statutes cannot be less favourable to workers than the
provisions of collective agreements and collective arrangements. However, the
said provisions do not establish this principle in normative relations between the
collective agreements and other collective arrangements. Therefore, the general
principles of conflict of laws and rules of interpretation should be applied.
In the Polish legal system the case law is not considered a source of
labour law. Both labour courts and other bodies adjudicating on employment
relationships are not competent to establish generally applicable provisions. It is
because the essence of the jurisprudence is imperative resolution of individual
rights and obligations, in accordance with the principle ius facit inter partes.
Also, the sources of obligations, including a contract of employment, cannot be
considered the sources of labour law.
4 See a judgment of the Supreme Court of 19 March 2008, I PK 235/07, MoPr. 2008, No. 9, p. 472.
2
2. General sources of labour law
Also custom and internal customary practices at the establishments cannot
be included among the sources of labour law5. On the other hand, according to
still valid Justinian line of argumentation – consuetudo est optima legum interpres
– custom is the best interpreter of law. In labour relations, the customary norms
often directly or indirectly affect the functioning of normative mechanisms, for
example when they penetrate into the provisions of collective agreements or
internal rules.
2. General sources of labour law
2.1. Constitution of the Republic of Poland
The Constitution of the Republic of Poland is the fundamental legal act
defining the state’s system, also in labour relations6. A principle of fundamental
importance is that the Republic of Poland is a democratic state ruled by
law and implementing the principles of social justice. The instrument for
implementation of this formula is the idea of social market economy based on
the freedom of economic activity, private ownership and solidarity, dialogue
and cooperation between social partners (Arti cle 20). The essence of this model
is a social homeostasis which implies establishment of the regulators of social
and economic processes in order to guarantee the dignity of human work.
The Polish Constitution governs also certain matters relating to collective
labour law relationships. In Article 12 it guarantees7 a freedom of establishment
and operation of trade unions and other voluntary associations (for example
employers’ associations). This general provision is clarified in Article 59 which
defines the fundamental freedoms in the collective sense in the industrial
relations. More specifically, it ensures the freedom to associate in trade unions,
social and professional farmers’ organisations and employers’ organisations.
Paragraphs 2 and 3 of this Article establish the right to bargain collectively and
the right to strike and protest. On the other hand, paragraph 4 of this Article
defines the scope of restrictions of the freedom of association in the Polish
legislation.
5 See: A. Patulski, [in:] K.W. Baran (ed.), System prawa pracy. Część ogólna… [The System of Labour
Law. General Part...], p. 1277 ff. and the literature referenced there.
6 See: J. Oniszczuk, [in:] K.W. Baran (ed.), System prawa pracy. Część ogólna… [The System
of Labour Law. General Part...], p. 668 ff. and the literature referenced there.
7 See: W. Sanetra, Prawa (wolności) pracownicze w Konstytucji [Workers’ Rights (Freedoms)
in the Constitution], PiZS 1997, No. 11, p. 2 ff.; L. Florek, Konstytucyjne gwarancje uprawnień
pracowniczych [Constitutional Guarantees of Workers’ Rights], PiP 1997, Nos 11–12, p. 195.
3
Chapter 1. Sources of Polish Collective Employment Law
Trade union freedoms are enshrined in the Constitution of the Republic of
Poland among political rights and freedoms8, unlike any other workers’ rights
and freedoms which are included in a group of economic, social and cultural
freedoms and rights. Against this background, a question arises about the
accuracy of this type of classification. The starting point for further deliberations
on this subject will be the conclusion that the freedom of association in trade
unions and employers’ organisations has been treated by the legislature – despite
its social core – as one of the dimensions of the general freedom of assembly.
In the constitutional terms, the “political factor”9 of the trade union
freedoms, in particular the freedom of association should be viewed as the
possibility of employees or employers to collectively influence the form and
functioning of social and economic relations in a broad sense through their
empowerment in relations with public authorities and public administration.
It is worth emphasising that in a democratic state in no event such “political
factor” of the freedom of association can be a pretext for the trade unions or
employers’ organisations to take over the roles and tasks of political parties10.
As compared with the legal regulations applicable in the past11 in the system
of Polish law and relating to trade union freedoms, the mechanisms adopted
in the Constitution appear to be comprehensive and broadly take into account
international standards in this field. The essence of constitutional regulation
is that the freedom of formation and operation of trade unions is recognised
in Article 12 of the Constitution of the Republic of Poland as one of the
fundamental characteristics of the political system of the Republic of Poland.
Unfortunately, said provision does not mention employers’ organisations and
this – in my opinion – heavily undermines the directive of equality of the
parties in labour relations. This means a continuance of a disgraceful tradition
of discrimination of employers’ organisations12 in the Polish legislative system.
Obviously, on the basis of a functional interpretation of Article 12 of the
Constitution, it may be assumed that the freedom of formation and operation
refers also to employers’ organisations as they can be classified in the group of
entities called “other voluntary associations.”
8 See: W. Zakrzewski, [in:] W. Skrzydło (ed.), Polskie prawo konstytucyjne [Polish Constitutional
Law], Lublin 2000, pp. 182–183.
9 See: Z. Witkowski (ed.), Prawo konstytucyjne [Constitutional Law], Toruń 1998, p. 96.
10 See in particular: W. Sanetra, Prawa (wolności)... [Workers’ Rights...], p. 7.
11 See more in: K.W. Baran, Wolności związkowe i ich gwarancje w systemie ustawodawstwa
polskiego [Trade Union Freedoms and Their Guarantees in the System of Polish Legislation], Bydgoszcz-
Kraków 2001, pp. 33–34.
12 Normative manifestations of discrimination against employers’ organisations as regards the
coalition rights are mentioned by Z. Hajn, Status prawny organizacji pracodawców [Legal Status of the
Workers’ Organisations], p. 5 and 6.
4
2. General sources of labour law
While analysing the provisions of Article 12 of the Constitution, I conclude
that it not only establishes the freedom to form trade unions and employers’
organisations, but also their freedom to act. Thus, two other union freedoms
were decreed implicitly in the Constitution, namely the self-governance and
independence. If these two freedoms were not respected in the industrial
relations, it would be difficult to imagine the free operation of organisations
associating employees or employers.
The deliberations on the freedom of association cannot be detached
from the general assumptions and principles laid down in the Constitution.
In particular, attention should be given to Article 20 of the Constitution
according to which a social market economy, based on the freedom of economic
activity, private ownership and solidarity, dialogue and cooperation between
social partners, shall be the basis of the economic system of the Republic of
Poland. I have no doubt that the market nature of the economic system has
significantly determined the form of the freedom of association. A broad scope
of the freedom of association in trade unions and employers’ organisations
provided for in Article 59 of the Constitution of the Republic of Poland and
reinforcement of this freedom with the right to bargain collectively, to strike and
to protest, undoubtedly means departure in the collective labour relations from
the state interventionism characteristic of the previous era towards dialogue and
partnership.
The Constitution of the Republic of Poland includes certain normative
mechanisms to serve the “reality and applicability”13 of the freedoms and rights
laid down in it. Article 8 of the Constitution seems to be of key importance
in this regard. Paragraph 2 of the Article stipulates that the provisions of the
Constitution shall apply directly, unless it provides otherwise14. In the light
of the provisions cited above, I have no doubt that Article 12 and 59 of the
Constitution which set a very specific range of union freedoms are suitable for
direct application. Of course, these freedoms are not absolute. Article 59(4) of
the Constitution expressis verbis permits their statutory restrictions, but only to
the extent permitted by international treaties binding the Republic of Poland15.
13 W. Sanetra, Prawa (wolności)... [Workers’ Rights…], p. 6.
14 See in particular: W. Skrzydło, Konstytucja Rzeczypospolitej Polskiej. Komentarz [Constitution
of the Republic of Poland. Commentary], Kraków 2000, p. 20.
15 See more in: K.W. Baran, Wolności... [Trade Union Freedoms...], p. 21 ff.
32 See: L. Florek, Zakres ograniczenia wolności związkowych (art. 59 ust. 4 Konstytucji) [The Scope
of Limitation of Trade Union Freedoms (Article 59(4) of the Constitution], PiP 2000, No. 12, p. 4 ff.
33 See more in: L. Florek, Rola umów międzynarodowych w zbiorowym prawie pracy [The Role
of International Agreements in the Collective Labour Law], [in:] G. Goździewicz (ed.), Zbiorowe prawo
pracy w społecznej gospodarce rynkowej [Collective Labour Law in the Social Market Economy], Toruń
2000, pp. 99–108.
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Chapter 1. Sources of Polish Collective Employment Law
According to Article 31(3) of the Constitution of the Republic of Poland,
any limitation upon the exercise of constitutional freedoms and rights may
be imposed only when necessary in a democratic state for the protection of
its security and public order, or to protect the natural environment, health or
public morals, or the freedoms and rights of other persons. This provision –
also in relation to union freedoms – correlates with the provisions of Article 2
of the European Convention on Human Rights. At this point, it should
also be emphasised that in the light of Article 31(5) of the Constitution, it is
unacceptable to introduce restrictions on the freedom of association for reasons
other than those mentioned in this provision. That provision is numerus clausus.
As a result, according to the exceptiones non sunt extendendae directive, none of
the premises contained in the catalogue can be interpreted broadly.
2.2. Acts/laws (Ustawy)
The acts/laws (ustawy) constitute the base of the Polish labour law16.
According to a generally accepted opinion, an act/law (ustawa) is a normative act
which establishes general and abstract norms and is adopted by the parliament.
It is a primary form of legal regulation in democratic states. With regard to the
material scope, the Polish legal system is governed by the principle of exclusivity
of acts which means that the Constitution does not impose any limits on the
scope of the legislation17. However, it must be noted that the unlimited material
scope does not mean that the legislature has full discretion in deciding on the
substantial contents of acts. According to Article 31(3) of the Constitution of the
Republic of Poland, any limitation upon the exercise of constitutional freedoms
and rights may be imposed only when necessary in a democratic state for the
protection of its security and public order, or to protect the natural environment,
health or public morals, or the freedoms and rights of other persons.
The Polish statutory collective employment law is pluralised, in the sense
that it is included in various laws and legal acts. Until now, despite various
legislative attempts, it has not been possible to pass a uniform code of collective
employment law.
Among the statutory sources of collective employment law, particularly
important are the following:
– Act on Trade Unions (Ustawa o związkach zawodowych);
– Act on Employers’ Organisations (Ustawa o organizacjach pracodawców);
16 See a judgment of the Supreme Court of 2 December 2010, II PK 126/10, argument 1.
17 See: K.W. Baran (ed.), [in:] K.W. Baran (ed.), System prawa pracy. Część ogólna… [The System
of Labour Law. General Part...], and the literature referenced there.
6
2. General sources of labour law
– Act on the Resolution of Collective Labour Disputes (Ustawa o rozwiązywaniu
sporów zbiorowych);
– Act on the Council of Social Dialogue (Ustawa o Radzie Dialogu Społecznego);
– Act on Information and Consultation of Employees (Ustawa o informowaniu
pracowników i prowadzeniu z nimi konsultacji);
– Act on Special Rules for Terminating Employment Relationships for Reasons
not Attributable to Employees, so-called the Act on Collective Redundancies
(Ustawa o szczególnych zasadach rozwiązywania z pracownikami stosunków
pracy z przyczyn niedotyczących pracowniników so-called Ustawa o zwolnieniach
grupowych).
In the system of Polish law, the source of collective employment law is
also the Labour Code. It regulates the legal framework for collective labour
agreements and certain other collective arrangements. It will also be discussed
in this study.
2.3. Regulations (Rozporządzenia)
One of the types of legal acts in the hierarchy of provisions of labour law
are regulations (rozporządzenia)18. They implement laws/acts (ustawy) and
govern matters necessary for the implementation of the former. Enactment
of a regulation requires separate and explicit statutory authorisation. Such
authorisation should specify the matters to be regulated and the shape of the
regulation. Regulations may not deal with the matters reserved for acts/laws
(ustawy).
Regulations in the labour relations may be adopted by: the President,
the Council of Ministers, the Prime Minister and the ministers in charge of
government administration departments. In the relevant material scope, it
means primarily a minister competent in labour matters.
From a normative point of view, the regulations in force in the Polish
labour law legislation have different nature. On one hand, they regulate
comprehensively the labour law mechanisms, and on the other hand, they only
supplement or clarify the statutory regulations. An example of the first category
is a Regulation of the Council of Ministers of 16 August 1991 on the Rules of
Procedure before the Social Arbitration Panels (rozporządzenie Rady Ministrów
z dnia 16 sierpnia 1991 w sprawie trybu postępowania przed kolegiami arbitrażu
społecznego) (Journal of Laws [Dz.U.] No. 73, item 324). An example of the
second category is a Regulation of the Minister of Economy and Labour of
18 See: K.W. Baran, [in:] K.W. Baran (ed.), System prawa pracy. Część ogólna… [The System
of Labour Law. General Part...], p. 838 ff. and the literature referenced there.
7
Chapter 1. Sources of Polish Collective Employment Law
8 December 2004 on the Conditions of Remuneration of Mediators Entered on
a List of a Competent Minister of Labour (rozporządzenie Ministra Gospodarki
i Pracy z dnia 8 grudnia 2004 w sprawie warunków wynagradzania mediatorów
z listy ustalonej przez ministra właściwego do spraw pracy) (Journal of Laws
[Dz.U.] No. 269, item 2673).
3. Specific sources of collective employment law
3.1. Introduction
In the system of Polish employment law, the specific sources of law are
supra-individual collective agreements concluded by entities representing
employees and employers, if they have a statutory basis. These include collective
agreements19 and other collective arrangements20. I will present them in
this chapter. The starting point will be a statement that Article 59(2) of the
Constitution of the Republic of Poland21 does not restrict the conclusion of other
collective arrangements. In a market economy, they therefore have a diverse
nature. The criteria for differentiation are set out Article 9 § 1 of the Labour
Code. According to this provision, the granting of the status of the source of law
is dependent on the cumulative fulfilment of two premises: the statutory basis22
and regulation of the rights and obligations of the parties to an employment
relationship. In this case, the universal principle conventio est lex applies in the
industrial relations, which means that the agreement has the power of law.
De lege lata, the following categories of agreements have the statutory basis
in the system of collective employment law23:
− collective agreements;
19 Issues concerning collective agreements will be presented in the commentary on chapter XI.
See in particular: M. Włodarczyk, [in:] K.W. Baran (ed.), Zarys systemu prawa pracy, t. I, Część ogólna
prawa pracy [The Outline of the System of Labour Law, Volume I, The General Part of Labour Law],
Warszawa 2010, p. 398 ff.
20 See: Z. Niedbała, O niektórych kontrowersjach wokół porozumień zbiorowych jako źródeł
prawa pracy [Some Controversies About Collective Agreements as Sources of Labour Law], [in:] J. Stelina,
A. Wypych-Żywicka (eds.), Księga jubileuszowa poświęcona Profesor Urszuli Jackowiak [An Anniversary
Book Dedicated to Professor Urszula Jackowiak], Gdańsk 2007, p. 167 ff.
21 See the judgment of the Supreme Court of 7 December 2012, II PK 128/12 in which the
Court held that this provision cannot constitute a statutory basis for collective agreements containing
provisions of labour law.
22 Judgment of the Supreme Court of 13 June 2012, II PK 288/11.
23 See: M. Włodarczyk, [in:] K.W. Baran (ed.), System prawa pracy. Zbiorowe prawo pracy. Tom
V [The System of Labour Law. Collective Labour Law. Volume 5], Warszawa 2014, p. 424 ff. and the
literature referenced there.
8
3. Specific sources of collective employment law
− agreement on the application of a collective agreement (Article 24110 of the
− agreement to suspend the application of a collective agreement (Article 24127
Labour Code);
§ 1 of the Labour Code);
Code);
− agreement related to transfer of an undertaking to a new employer
(Article 261(3) of the Act on Trade Unions);
− agreement to suspend the provisions of labour law (Article 91 of the Labour
− agreement on the application of less favourable employment conditions
(Article 231a of the Labour Code);
− agreement on the conditions of telework (Article 676 of the Labour Code);
− conciliation agreement concluded in a collective dispute (Article 9 of the Act
− mediation agreement concluded in a collective dispute (Article 14 of the Act
on Resolution of Collective Disputes);
on Resolution of Collective Disputes);
− arbitration agreement concluded in a collective dispute (Article 16 of the Act
on Resolution of Collective Disputes in connection with § 9 of the Regulation
on the Procedure Before the Social Arbitration Panels);
− strike or post-strike agreements concluded in a collective dispute (Article 9
or 14 in connection with Article 17 of the Act on Resolution of Collective
Disputes)24;
− agreement on collective redundancies (Article 3(1) of the Act on Collective
Redundancies);
− anti-crisis agreement25;
− participatory agreements.
The above list is not exhaustive. The employer can create “bases” of the
statutory level for further types of agreements. They can be both based on
Labour Code and non-Labour Code. This part of the study will present those of
the “other26 collective arrangements”27 which are not based on the Labour Code.
24 See the judgments of the Supreme Court of Poland of 8 July 2014, I PK 312/13, argument 3;
of 12 August 2014, I PK 14/14.
25 See: J. Szmit, Porozumienia zawierane w trybie ustawy z dnia 1 lipca 2009 r. o łagodzeniu
skutków kryzysu ekonomicznego dla pracowników i przedsiębiorstw [Agreements Concluded under
the Act of 1 July 2009 on Mitigating the Effects of the Economic Crisis on Employees and Enterprises],
[in:] A. Świątkowski (ed.), Studia z zakresu prawa pracy i polityki społecznej, Kraków 2010, p. 107 ff.
26 Article 18 of the Labour Code applies to all collective agreements. See: L. Florek, Porozumienia
zbiorowe a umowa o pracę [Collective Agreements and a Contract of Employment], [in:] Z. Niedbała
(ed.), Księga pamiątkowa w piątą rocznicę śmierci Profesora Andrzeja Kijowskiego [Memorial Book
on the Fifth Anniversary of Death of Professor Andrzej Kijowski], Warszawa 2010, p. 44.
27 See: M. Włodarczyk, „Swoiste” źródła prawa pracy – kilka refleksji na temat ich genezy i funkcji
[“Specific” Sources of Labour Law – A Few Reflections on Their Origins and Functions], [in:] Z. Góral (ed.),
9
Chapter 1. Sources of Polish Collective Employment Law
The status of sources of employment law within the meaning of Article 9
§ 1 of the Labour Code is granted also to agreements/arrangements concluded
during a collective labour dispute between trade unions and employers or
employers’ organisations. Under the applicable laws, there is no doubt that
conciliation and mediation agreements have direct statutory basis required by
the commented provision28.
On the other hand, more serious doubts arise with regard to the statutory
basis of the agreement (the so-called arbitration agreement) concluded in
the course of the a rbitration procedure. Although § 9 of a Regulation of the
Council of Ministers of 16 August 1991 on the Rules of Procedure Before the
Social Arbitration Panels (rozporządzenie Rady Ministrów z dnia 16 sierpnia
1991 w sprawie trybu postępowania przed kolegiami arbitrażu społecznego29)
allows explicitly the conclusion of an agreement by the parties to a collective
dispute, but only under a lower-ranking legal act. In my opinion, the arbitration
agreement has statutory basis required by the Code. This interpretation is
supported by systemic arguments. It should be kept in mind that in light of
the provisions of Article 92(1) of the Constitution of the Republic of Poland,
the issuance of a lower-ranking normative act (regulation) is always aimed at
ensuring the implementation of a higher-ranking act by specifying the provisions
of the latter. It is worth noting that the regulation is obligatory, in the sense that
Article 16(7) of the Act on the Resolution of Collective Disputes does not leave
the Council of Ministers the freedom to enact it. Therefore, it seems legitimate
to argue that the arbitration agreement has the statutory basis required by
Article 9 § 1 of the Labour Code, although it is indirect. Such interpretation is
justified by teleological considerations and the need to guarantee legal certainty
in industrial relations.
Interpretation problems arise also in the case of so-called strike or post-
strike agreements. They are concluded either during the strike or they end
the strike or other industrial action. The Act does not provide for a separate
legal basis for them in the provisions governing the strike. However, it is not
necessary to recognise them as sources of labour law. One should bear in mind
that such agreements are always concluded within the statutory arbitration
procedures, either in direct negotiations or before a mediator. The irenic
methods are used in parallel during the strike or protest. They are universal in
Z zagadnień współczesnego prawa pracy. Księga jubileuszowa Profesora Henryka Lewandowskiego
[The Issues of Contemporary Labour Law. The Anniversary Book of Professor Henryk Lewandowski],
Warszawa 2009, p. 110 ff.
28 See: Ł. Pisarczyk, [in:] K.W. Baran (ed.), System prawa pracy. Zbiorowe prawo pracy… [The
System of Labour Law. Collective Labour Law…], p. 640 ff. and the literature referenced there.
29 Journal of Laws [Dz.U.] No. 73, item 324.
10
3. Specific sources of collective employment law
the sense that they can be applied at all stages of a collective dispute. According
to the circumstances in a particular dispute, it will be a conciliation agreement
or a mediation agreement. Therefore, it is justified to argue that strike or post-
strike agreements have the statutory basis required under Article 9 § 1 of the
Labour Code. This view has also been approved in the case law of the Supreme
Court30, which gives such agreements the quality of sources of labour law within
the meaning of Article 9 of the Labour Code.
There are no normative obstacles for them to regulate the factors
determining the terms and conditions of an employment relationship. However,
in the practice of Polish industrial relations, they mainly concern broadly
understood wages and other monetary benefits, because the etiology of the
majority of collective disputes in the free market conditions has an economic
and social basis. They are therefore sources of labour law within the meaning
of Article 9 § 1 of the Labour Code, because their provisions directly concern
the individualised rights and obligations of the parties to an employment
relationship.
At this point, it is worth emphasising that in the practice of collective
disputes there are also such collective arrangements which in part relate to the
rights and duties of employees, and in part to the parties in the collective dispute
(e.g. trade unions). Because of the dualistic legal nature of such agreements,
it should be assumed that their individual provisions must be classified in
accordance with their substantive content. Therefore, for the employee some
of their provisions may be claimable, while others not. The discussed collective
agreements, in particular those ending the strike or other industrial action, very
often include a clause of no criminal record of trade unionists organising or
leading the course of this dispute. Depending on its wording, it may even be
claimable. However, in no circumstances can it constitute immunity for persons
who violate basic employee duties during a collective dispute.
The sources of collective employment law are also other collective
arrangements31 concluded by the employer with a non-union representation
of employees, if they cumulatively meet both criteria laid down in Article 9
§ 1 of the Labour Code. This kind of interpretation is justified by the lege non
30 See the judgments of the Supreme Court of Poland of: 8 July 2014, I PK 312/13, argument 3;
12 August 2014, I PK 14/14.
31 See: B. Wagner, Porozumienia zawierane na gruncie ustawy o informowaniu pracowników
i prowadzeniu z nimi konsultacji [Agreements Concluded under the Act on Information and Consultation
of Employees], [in:] A. Sobczyk (ed.), Informowanie i konsultacja pracowników w polskim prawie
pracy [Information and Consultation of Employees in the Polish Labour Law], Kraków 2008, p. 114
ff.; L. Florek, Porozumienia zbiorowe dotyczące informacji i konsultacji pracowniczej [Collective
Agreements Concerning Information and Consultation of Employees], [in:] Z. Góral (ed.), Z zagadnień
współczesnego… [The Issues…], p. 70 ff.
11
Chapter 1. Sources of Polish Collective Employment Law
distinguente argument, because the commented provision does not differentiate
the entities on the employees’ side. So there are no legal obstacles to it being
a works council or other representation of the staff. An example of the type of
the agreement discussed here can be a collective agreement concluded under
Article 14(2)(5) of the Act of 7 April 2006 on Information and Consultation
of Employees32, of course to the extent to which it defines the rights and
obligations of the parties to the employment relationship. Its provisions are
usually claimable and may be enforced in court proceedings.
Following the general reflections on other collective arrangements based
on the Act, it should be stated that within the freedom to conclude collective
agreements, they can govern the following:
1) only the rights and obligations of the parties to the agreement, i.e. trade unions
and employer(s);
2) both the rights and obligations of the parties to the agreement, as well as the
rights and obligations of the parties to the employment relationship, i.e. the
employee and employer;
3) only the provisions regarding the rights and obligations of the parties to the
employment relationship.
T he category of agreements indicated in paragraph 1 does not directly
affect the terms and conditions of employment of employees, therefore in light
of Article 9 § 1 of the Labour Code such agreements cannot be considered
provisions of labour law33. The two remaining categories can be considered to
have such an attribute in the parts in which they determine the status of the
parties to the employment relationship. In practice, this means that they are
claimable, which opens the way to their effective enforcement, both by the
employee and the employer.
In practice, many difficulties arise on interpretation of collective agreements.
Against the background of Article 300 of the Labour Code, certain doubts arise
as to whether the application of provisions of the Civil Code is admissible in this
matter. Based on a completudine argumentation, I support this interpretation
option. The judicature is also going in this direction. An example is a judgment
of the Supreme Court of Poland of 21 March 2014 (II PK 119/13) in which the
Court allowed for the auxiliary application of Article 65 of the Civil Code to the
interpretation of normative acts such as collective labour law agreements.
The status of sources of labour law within the meaning of Article 9 § 1 of
the Labour Code is not granted to collective agreements concluded without
32 Journal of Laws [Dz.U.] No. 79, item 550, as amended.
33 Where the rights and obligations of the parties have been sufficiently precisely defined, the
provisions of such an agreement may be claimable.
12
3. Specific sources of collective employment law
statutory basis34. This applies also to social agreements35 to which public
authorities and employees’ and/or employers’ organisations are parties36, if
they do not directly affect the terms and conditions of employment of specific
employees. As a result, they are not claimable, so they cannot be effectively
pursued before a labour court.
All other collective agreements discussed here briefly will be presented later
in this book.
3.2. Collective agreements
3.2.1. Legal nature of collective agreements
The origins of the collective agreements can be found in the nineteenth
century tariff and price contracts (umowy taryfowo-cennikowe) concluded
between the factory owners and newly established trade unions. Under the
liberal economy of the countries entering the industrial era, they were an
instrument for mitigation of sharp contrasts between labour and capital. In
theory, the legal nature of collective agreements is disputable37. In the labour law
doctrine38, there are two different theories on the issue in question. According
to a contract theory (teoria umowy), collective agreements are classified as
obligation acts. Supporters of this theory point out the contractual nature of
the collective agreements where the trade unions representing employees and
the employers create, under bilateral declaration of will, their mutual rights and
obligations. On the other hand, according to the law theory (teoria ustawy),
the collective agreements are classified as normative acts governing the rights
and obligations of employees and employers. Supporters of the latter theory
34 See: W. Uziak, Specyficzne źródła prawa pracy. Uwagi do dyskusji [Specific Sources of Labour Law.
Remarks for Discussion], GSP 2000, vol. VI, pp. 32–33; K.W. Baran, Zbiorowe prawo pracy [Collective
Labour Law], Kraków 2002, pp. 101–103. See also a controversial view expressed in the judgment of
the Supreme Court of 6 February 2006, III PK 114/05, OSNP 2007, No. 1–2, item 2.
35 See a ruling of the Supreme Court of 21 October 2008, III KAS 2/08, OSNP 2009, Nos 7–8,
36 M. Seweryński, Porozumienia generalne [General Agreements], [in:] Z. Góral (ed.), Z zagadnień…
item 111.
[The Issues…], p. 81 ff.
37 See: G. Goździewicz, Refleksje na temat charakteru prawnego układu zbiorowego [Reflections
on the Legal Nature of a Collective Agreement], [in:] M. Seweryński, J. Stelina (eds.), Księga pamiątkowa
poświęcona Prezydentowi Rzeczypospolitej Polskiej Profesorowi Lechowi Kaczyńskiemu [A Memorial
Book Dedicated to the President of the Republic of Poland, Professor Lech Kaczyński], Gdańsk 2012,
p. 115 ff.
38 See: L. Florek, Umowny charakter układu zbiorowego pracy [Contractual Nature of a Collective
Agreement], PiP 1997, No. 7, p. 15 ff.; J. Stelina, Normatywny charakter układów zbiorowych pracy
[Normative Nature of Collective Agreements], GSP, vol. VII, pp. 510–512.
13
Chapter 1. Sources of Polish Collective Employment Law
emphasise that the binding force of collective agreements is derived from the
law which sanctions the norms established under the agreement of the social
partners. More specifically, their normative character is based primarily on the
personal scope and the influence on the individual employment relationships.
The mechanism of application of statutory provisions and provisions of
a collective agreement in relation to contracts of employment is identical.
According to a compromise approach, collective agreements are considered
heterogeneous acts of partially normative and partially obligating character.
Therefore, they are defined as normative agreements concluded by trade unions
with employers or employers’ organisations and concerning the wage and
working conditions in a broad sense.
3.2.2. Personal scope of collective agreements
According to Article 239 of the Labour Code, a collective agreement39
is concluded for all employees employed by the employers covered by the
provisions of such agreement, unless the parties agree otherwise40. Therefore,
it may not include a differentiation clause according to which the provisions of
the collective agreement shall apply only to members of a trade union which is
a party to the agreement and only the latter shall be its beneficiaries, meaning
persons employed under more favourable conditions than other employees.
De lege lata, it does not, however, mean the prohibition to restrict the personal
scope of the provisions of a collective agreement, since there are no normative
obstacles to exclusion, in whole or in part, of provisions of the collective
agreement based on a type of work or the function performed.
Article 239 of the Labour Code refers to all categories of employees,
regardless of the nature of the act establishing the employment relationship.
Therefore, the provisions of a collective agreement may apply not only to
persons employed under a contract of employment but also those performing
work under nomination, appointment or even election. The above general
directive based on the provisions of Article 239 § 3 of the Labour Code does
not apply to certain categories of persons employed in the public administration
in a broad sense. Within the limits specified by Article 239 § 2 of the Labour
Code, a collective agreement may apply also to persons performing work on
39 See: M. Seweryński, Układy zbiorowe pracy w okresie demokratycznej przebudowy państwa
i gospodarki [Collective Agreements in the Period of Democratic Reconstruction of the State and the
Economy], PiP 1992, No. 12, p. 18 ff.; J. Wratny, Problem funkcji promocyjnej układów zbiorowych
w świetle zmian prawa pracy, [Promotional Function of Collective Agreements in the Light of Changes
in Labour Law], PiZS 1998, No. 2, p. 25 ff.
40 See: I. Sierocka, Zakres podmiotowy i treść układu zbiorowego pracy [The Personal Scope and
the Contents of a Collective Agreement], Białystok 2000, passim.
14
3. Specific sources of collective employment law
a basis different than an employment relationship. These may include persons
who perform work under civil law contracts or pensioners.
Parties to a collective agreement may also extend the personal scope of
the agreement to cover members of an employee’s family. It is associated with
a certain tradition functioning in the Polish industrial relations according to
which the immediate family of an employee injured in an accident at work may
receive additional social benefits or benefit from preferences in employment. It
must be emphasised that conclusion of a collective agreement solely for persons
who are not employees is not permitted since such agreement may cover such
persons only additionally.
In the Polish labour legislation, it is also prohibited to conclude a collective
agreement for the officers of uniformed services since the terms and conditions
of performance of work by this group of employees are set out unilaterally by
the employer.
While discussing the personal scope of collective agreements, it is worth
paying attention to the so-called generalisation clause41. According to the
provisions of Article 24118 § 1 of the Labour Code, at the joint request of the
employers’ organisations and multi-establishment trade union organisations
that have entered into a multi-establishment agreement, the minister competent
for labour issues may, when the important public interest so requires, extend
under a regulation the application of this collective agreement, in whole or
in part, to cover employees employed by the employer who is not covered by
any multi-establishment agreement, conducting business activity identical or
similar to the activity of employers covered by this agreement, determined on
the basis of separate provisions on the classification of activities, after consulting
the employer or the employer’s organisation and the trade union organisation –
if such organisation operates at the employer’s premises.
The basic premise for the generalisation of a multi-establishment collective
agreement is an important public interest. Because of the vagueness of this term,
it is impossible to precisely indicate the circumstances justifying the issuance of
the regulation. It seems that in the practice of industrial relations it follows from
the need to protect the interests of employees who perform work in conditions
significantly worse than employees of other enterprises covered by a multi-
establishment agreement. The purpose of the generalisation clause is usually
to standardise the conditions of employment of employees within one industry
and to reduce the social dumping.
41 See: L. Kaczyński, Generalizacja układu zbiorowego pracy [Generalisation of a Collective
Agreement], PiP 1998, No. 5, passim.
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