Freelancers of the world, unite!, American Investor, Summer 2015

Workers don’t have to be employees to have the right to establish and join labor unions

In a judgment issued on June 2, 2015 (Case K 1/13), Poland’s Constitutional Tribunal addressed the issue of labor unions being joined by individuals working on a non-employment basis. The judgment recognized that freelancers have the same labor union freedom as employees. This means that persons working on a non-employment basis—e.g. under civil-law contracts—will have the right to establish and join labor unions.

Complying with international standards

The judgment was issued pursuant to a petition filed by the All-Poland Alliance of Trade Unions (OPZZ), seeking a declaration that certain provisions of the Labor Unions Act of May 23, 1991 (Art. 2 (1), (2) and (5)) are inconsistent with Art. 2 of the Freedom of Association and Protection of the Right to Organise Convention (No. 87, adopted in San Francisco on July 9, 1948), as well as Art. 12 and 59(1) of the Polish Constitution.

Pursuant to Art. 2(1) of the Labor Unions Act, the right to establish and join labor unions generally applies only to employees (regardless of the basis of their employment relationship), members of agricultural production cooperatives, and persons working on the basis of an agency agreement, if they are not employers. And in the wording in force until June 11, 2015, Art. 2(2) of the act permitted persons hired on an “outwork” system to join only labor unions operating at the workplace with which they had entered into an outwork agreement.

OPZZ alleged that the Labor Unions Act does not comply with international standards for establishing and joining labor unions under Convention No. 87, and does not apply to the full range of persons protected by this freedom under the Polish Constitution. OPZZ argued that the erroneous and imprecise Polish translation of the convention resulted in an unjustified narrowing of the set of persons enjoying the right to establish and join labor unions pursuant to the act. Art. 2 of the convention states (in the authentic English version): “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation.” Similarly, the authentic French version of the convention refers to the rights of travailleurs. In OPZZ’s view, this means anyone who is gainfully employed. In the Polish version, the word “workers” was rendered as pracownicy, which had generally been understood to mean a person working on the basis of an employment relationship within the meaning of the Polish Labor Code, i.e. a person hired on the basis of an employment contract, appointment, election, nomination, or a cooperative employment contract. OPZZ also argued that the subjective scope of Art. 2(1) of the Labor Unions Act is inconsistent with Art. 12 of the Polish Constitution, in connection with Art. 59(1) of the Constitution, insofar as it limits the right to establish and join labor unions to people who are “employees” for purposes of the Labor Code. OPZZ argued that the Constitution protects the labor union rights of all persons performing gainful employment, regardless of the legal basis—including those hired on the basis of a service contract or a contract to perform a specific work, as well as self-employed people.

Complying with the Constitution

The Constitutional Tribunal partially upheld the position of OPZZ. Significantly, the tribunal held, Art. 2(1) of the Labor Unions Act is unconstitutional to the extent that it limits the freedom to establish and join labor unions of gainfully employed persons who are not mentioned in Art. 2(1). According to the tribunal, the subjective scope of the freedom of association extends to workers—pracownicy—“in the constitutional sense of the term,” and not, as has previously been assumed, only under the meaning set forth in the Labor Code. In the view of the Constitutional Tribunal, the criterion determining whether a given person is regarded as a “worker” for purposes of the Constitution is performance of gainful employment, and recognition as a worker should be given to anyone who “performs gainful employment, is in a legal relationship with the entity for which the person performs the work, and has professional interests connected with performance of the work which can be protected on a group basis.”

Based on the judgment of the Constitutional Tribunal, the right to establish and join labor unions should be enjoyed not only by employees in the Labor Code sense but also by persons performing work on the basis of civil-law contracts or self-employment. However, the reasoning behind the judgment will not be known in detail until the justification for the judgment is published, which has not happened yet. But it will be certain to have an impact on businesses hiring people on such a non-employment basis and the form of dialogue that the business will need to conduct with such workers.

Conclusions

It can’t be ruled out that even now people hired on the basis of civil-law contracts may attempt to exercise their freedom to associate in the form of a labor union, but it is not yet clear exactly what union rights they will be entitled to exercise. It will be crucial to see what changes are introduced into the Labor Unions Act in connection with the judgment holding certain of the current provisions to be unconstitutional, but the exact shape the new regulations will take cannot be predicted at this point, or when legislative work on this task will begin.

Published in: American Investor, Summer 2015