As a rule, if there are no trade unions active in an employing establishment, certain actions should still be consulted or even agreed upon with employee representatives. Such employee representatives are not protected by the Labour Code to the same extent as trade union members. In particular, they are not protected against termination of employment.
Most actions of the employer do not require the consent of employee representatives – consultation is usually sufficient.
However, there are specific cases in which the law requires consent and the employer is obliged to reach an agreement with the employee representatives. For example, under the COVID-19-related provisions, employers had to obtain the consent of the employee representatives in order to suspend or modify certain terms and conditions of employment contained in employment contracts, including working hours, full-time jobs, or to suspend certain provisions of remuneration regulations and bonus policies. In other words, mere consultation in this case would not have been sufficient.
The consent of employee representatives is also required for the following: (i) extending the settlement period; (ii) introducing flexible and interrupted working time systems, and (iii) taking decisions related to the social benefits fund, including the decision not to create one.
Interestingly though, if collective redundancies are necessary, the decision and the rules for the process need only to be consulted with employee representatives. As a rule, such consultations involve the employer presenting proposed actions in order to find out the opinions of the employee representatives, and although the representatives take part in them, including presenting their opinions and proposals, the final decision rests with the employer. This is also the case with setting the conditions for the use of telework (and soon also the conditions for remote working, which is to replace telework in the Labour Code).
Consultation alone is also sufficient in the case of the selection of a financial institution operating employee capital plans, or in matters related to health and safety in the workplace, including, for example, the creation of an occupational health and safety service.
The issue of employee representative involvement will soon become important in the context of the implementation of the so-called Whistleblower Directive. In the near future, employers with at least 250 employees (and from 2023, also employers with at least 50 employees) will be required to establish internal whistleblowing regulations. According to the bill on the protection of whistleblowers (known as the “whistleblower law”), the procedures introduced will have to be consulted with employee representatives if there are no trade unions active in the company.
Although representatives are elected directly by the employees, the employer is responsible for initiating the election. Elections can also be organised remotely via email or by using so-called “voting buttons” or a suitable voting platform. While the rules on the conduct of elections do not regulate this issue, in practice, employers usually choose to have at least two employee representatives.
In order to avoid any unnecessary delays in the performance of the activities described above, employers should verify whether employee representatives have been elected and for what purposes, .
The most practical solution from an employer’s perspective is to indicate that the representatives are elected for all activities for which cooperation with employee representatives is required by law, in order to avoid having to hold more elections.
Employers that do not yet have any elected employee representatives but intend to do any of the things described above that require consultation with them (e.g. employers with more than 250 employees who will soon have to create a whistleblower policy) should start preparing for such elections now.
Izabela Olejarz, Junior Associate