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27 February 2013
On December 20 2012 seven judges of the Supreme Court confirmed a new approach to analysing the consequences of a trade union's failure to notify the relevant employer of the number of union members among its employees in a timely manner (III PZP 7/12). This approach was suggested by the court in an October 6 2011 ruling (III PK 17/11).
Under Article 25(1)(1) of the Trade Union Act, a local (in-company) trade union will enjoy its statutory rights only if it has at least 10 members among the employees of the relevant employer. One of such rights is the right to be consulted by the employer with respect to the latter's intention to terminate a union member's employment.
Article 25(1)(2) of the act further stipulates that a local trade union must supply the employer with information relating to the number of employees who are union members as at the end of each calendar quarter. The data should be provided within the first 10 days of the subsequent quarter.
Under previous Supreme Court case law, a union was entitled prove at any time (even after the employer had given notice of termination of employment) that it had more than 10 members. If this was proven, the notice of termination would be found to be illegal after the fact if the employer had not consulted with the union before issuing the notice (by acting on the assumption that the union did not enjoy its statutory rights).
In the first case under consideration (III PK 17/11), the Supreme Court presented a new, reasonable and employer-oriented approach to the consequences of a delay in the submission of such information by the union. A second ruling (III PZP 7/12) was issued in response to a query by the ombudsman and served to clarify, reinforce and (hopefully) finally confirm the interpretation presented in the first ruling.
An employer terminated an employment agreement with a trade union member on unilateral notice. The union had previously submitted the required information on the number of its members to the employer. However, delivery of the information was delayed, although it was still received by the employer before the employee received the termination notice. Due to the delay in submission of the required information, the employer did not consult the union with respect to termination of the claimant's employment.
In its judgment, the Supreme Court stated that if a trade union fails to provide the employer with information on the number of its members within the stated period of 10 days after the end of a quarter, the employer may assume that the local trade union does not enjoy its statutory rights. Consequently, the employer is released from the obligation to cooperate with it when terminating employment agreements with employees. The court pointed out that delayed information is still effective, but that the pertinent statutory rights of the trade union become applicable only on delivery of such information to the employer.
The court disagreed with prior case law, stating that the previous interpretation had placed the risks related to a breach of the trade union's obligation on the employer. It instead argued that such risks should be borne by the union (as it is the union that benefits from the regulation).
According to the court, the union's obligation to inform the employer of the number of its members is in place in order to protect the employer against the negative consequences of an unintended breach of the union's rights. This particularly pertains to actions taken by the employer resulting from a lack of knowledge of the union's status. Thus, receipt of information on the number of the union members by the employer after the required date, and after serving the notice of termination, does not render such termination illegal.
The above ruling contradicted previous judgments and the view of a number of eminent legal writers. This caused considerable confusion, especially as another ruling was issued in March 2012 that adhered to the previous case law.
In order to clarify finally the Supreme Court's position, the ombudsman submitted an inquiry to the court regarding the consequences of a trade union's failure to provide information on the number of members. In justification for the motion, the ombudsman supported the view expressed in the III PK 17/11 judgment.
In the resolution issued in reply to the ombudsman's inquiry, seven judges of the Supreme Court confirmed the view that failure by a local trade union organisation to provide the information referred to in Article 25(1)(2) of the act triggers no illegality in relation to actions taken by an employer without the required cooperation with that organisation, until such information has been presented.
The second ruling not only confirms the reasonable and employer-oriented position of the first judgment, but also extends it to other areas where collaboration with a trade union is necessary, such as introducing and amending internal policies and regulations.
The obligation of the trade union to provide information on its member numbers to the employer every quarter is subject to no penalty directly expressed in the act. The previous case law conferred on the trade union the right to confirm its status at any time, even after an employer's action had been performed in good faith, based on a lack of pertinent information, in the belief that the trade union no longer enjoyed its rights. The above rulings have changed the previous interpretation, which favoured trade unions, and provided a better balance between protecting the rights of a trade union and protecting the employer from negative consequences resulting from the union's negligence.
For further information on this topic please contact Roch Pałubicki or Katarzyna Pikiewicz at Soltysiński Kawecki & Szlęzak by telephone (+48 22 608 7000), fax (+48 22 608 7070) or email (email@example.com or firstname.lastname@example.org).
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