Uphill struggle: collective bargaining for the self-employed in Poland

Abstract

German

French

Poland, which has one of the highest shares of self-employment and civil law contracts in total employment in the European Union, provides an instructive example of a labour law reform that extended the personal scope of collective bargaining. Since 1 January 2019, the right to collective bargaining has been extended to all workers in paid employment. The first effects of the reform have however been disappointing. Collective agreements concluded since the new law came into force hardly ever cover non-employees. These results are rooted both in social partners’ attitudes and strategies and in the existing legal framework. Employers keen on reducing labour costs are reluctant to enter into collective bargaining with self-employed workers, while trade unions have not adopted a comprehensive strategy for representing non-employees. At the same time, the law scarcely fosters and encourages social dialogue; in some areas it can even be an obstacle to developing collective bargaining for workers.

Keywords

Collective bargaining self-employed trade unions strike action employers

Introduction

Over recent decades, the number of people working outside a conventional employment relationship has increased significantly (OECD, 2023). Self-employment is on the rise even in traditional sectors of the economy (Eurostat, 2022), while the development of advanced technologies has brought new phenomena into being, such as platform work, in which many platform workers are not considered to be regular employees (Miranda Boto, 2022: 4). With only limited support in labour law, the self-employed need other forms of protection, including collective representation of their rights and interests. Poland, with one of the highest shares of self-employment in total employment (18.4 per cent) (Eurostat, 2022), is an instructive example of collective bargaining reform (in 2018) extending the personal scope of bargaining and its practical consequences. The key question is whether and to what extent the reform has helped to increase collective bargaining coverage among non-employees. In this article, the Polish case is analysed in the context of European trends and the changes taking place in other countries. The article is based on research on collective bargaining carried out in Poland (2019–2023), which covered, among other things, analysis of social partners’ strategies and activities since the reform, and of registers of collective agreements (under the aegis of the minister responsible for labour and county labour inspectors), questionnaires and interviews with representatives of trade unions, employers and employers’ organisations.¹

Changing the approach to collective bargaining for the self-employed

International standards aimed at protecting the collective freedoms and rights of individuals are characterised by a broad approach to the personal scope of collective bargaining (see, for example, Brameshuber, 2022). According to the ILO’s Committee on Freedom of Association, workers who are self-employed should enjoy full trade union rights for the purpose of furthering and defending their interests, including by means of collective bargaining (International Labour Office, 2018: 240 (1285)). The European Court of Human Rights has also recognised that freedom of association under Article 11 of the European Convention on Human Rights applies to the self-employed (20161/06 Vörður Ólafsson, ECHR 2010). The European Committee of Social Rights, which monitors States Parties’ compliance with the European Social Charter (ESC), has clarified that the right to collective bargaining (Article 6(2) of the ESC (RESC)) can be exercised when there is ‘an imbalance of power between the providers and engagers of labour’ (ICTU case, complaint No. 123/2016).

The legal context is more complex under EU law. On the one hand, the Court of Justice of the European Union has recognised the fundamental nature of the right to collective bargaining; on the other hand, it has limited the exercise of the right to collective bargaining by seeking a balance between union rights and economic freedoms and fair competition (for example, Biasi, 2018; Deskalova, 2021; Gyulavári, 2020; Jaspers, 2019; Ratti, 2022). One result of that balancing is a formula enabling the exclusion of collective agreements from the application of Article 101(1) TFEU (Albany–van der Woude formula). This has led, however, to a binary divide into employees (covered by the immunity) and the self-employed (Freedland and Kountouris, 2017). The binary divide was partially broken in, for example, the FNV Kunsten case (C-413/13, FNV Kunsten [2014]), in which the Court recognised the right to collective bargaining of the ‘false self-employed’. This approach was developed in the Guidelines on the application of Union competition law to collective agreements regarding the working conditions of solo self-employed persons, adopted by the European Commission in 2022. For the future, collective bargaining should be accessible ‘in all those situations where the dominant bargaining position of one of the contracting parties has the power to push down labour costs’ (Rainone and Countouris, 2021). The self-employed who perform work personally and who have a limited autonomy with regard to their working conditions should not be treated as ‘businesses’ operating in a free market (Biasi, 2018). The Commission’s changing position is reflected in the Guidelines, which recognised the right to collective bargaining of the self-employed ‘who are in a situation comparable to that of workers’ (§ 22), but also those who are in a situation of a clear ‘imbalance of bargaining power’ (§§ 36 and 37).

There is a general tendency to extend the personal scope of collective bargaining either by broadening the concept of employee (Article 2 of Italian Law No. 81/2015; Spanish Ley Rider (Pérez Prado, 2021)) or by recognising the right to collective bargaining of some categories of non-employees. Some domestic laws have formally recognised a ‘third’ (intermediate) category of working people who may enjoy collective rights, such as employee-like persons in Austria and Germany (arbeitnehmerähnliche Personen), economically dependent workers in Spain (trabajador autónomo económicante dependiente, TRADE) or co.co.co. workers in Italy. They are economically dependent because of their involvement in an organised activity (Loi, 2022: 33). In some other countries (France, the Netherlands), the extension is based on informal recognition of such a category (Hießl, 2021: 270–271).

Development of the labour market and collective bargaining in Poland

The Polish labour market is characterised by a high share in total employment of work performed outside the employment relationship (Eurostat, 2022). The percentage of people working outside the employment relationship is higher than in other countries, at around 2.5 million or approximately 20 per cent of all workers compared with around 10 per cent in the EU as a whole (Eurostat, 2023). The main group comprises people who work on the basis of civil law contracts (Lewandowski and Magda, 2017: 144–146; Mitrus, 2021: 203–207), mainly mandate contracts (Article 734 of the Civil Code), agency contracts (Article 758 of the Labour Code), contracts for the provision of services (Article 750 of the Civil Code: the largest group), and contracts for the performance of specific tasks (Article 627 of the Labour Code). Civil law contracts can be used as long as work does not have the characteristics of an employment relationship, in particular if there is no subordination of a worker to an employer (Article 22 § 1¹ of the Labour Code). Moreover, the law explicitly allows temporary work agencies to engage temporary workers not only under employment contracts but also civil law contracts (Article 1 of the Law on Temporary Workers). Again, the nature of work, in this case the subordination to a user employer, should be a decisive criterion. Some civil law contractors enjoy the formal status of ‘entrepreneurs’ (one-person businesses) (Mitrus, 2021: 201–202) (self-employed sensu stricto). Others, including temporary workers, conclude civil law contracts as natural persons (workers under civil law contracts).

The division into two categories (the self-employed and other workers under civil law contracts) has a number of legal consequences, for example, in the field of tax and social insurance (Lewandowski and Magda, 2017: 144–146). From the perspective of labour law, however, the positions of the two groups are very similar. Both categories of non-employees, with some exceptions, are not covered by the statutory protection arising from labour law (Mitrus, 2021: 201). In theory, both the self-employed sensu stricto and workers under civil law contracts exercise freedom of contract, justified by their market position. Although not all of them have the status of entrepreneur, all are participants in civil law transactions. As a result, at least some conclusions concerning the self-employed sensu stricto should be extended to those working under civil law contracts as natural persons.

Civil law contracts (in both configurations – as part of the business and outside it) are used in various sectors of the economy. The employment relationship is rarely used in platform work. Some platforms (for example, transport and food delivery) offer b2b contracts, including vehicle rental agreements. Drivers or suppliers have to establish their own businesses and conclude contracts with platforms as entrepreneurs (Kozak-Maśnicka and Pisarczyk, 2022: 213–217). But civil law contracts are popular also in traditional sectors of the economy: accommodation and food services, cleaning and security services, retail and construction (Lewandowski, 2018: 13). Civil law contracts are often used when employing young workers (for example, students) and migrant workers (although the number of migrants has significantly increased recently) (European Commission, 2022). Most temporary workers are employed by temporary work agencies as natural persons under civil law contracts: 64 per cent of all temporary workers in 2022 (Ministry of Family and Social Policy, 2023). Other temporary workers are employees. The self-employed sensu stricto and workers under civil law contracts exist in similar proportions (with a certain predominance of the self-employed). In 2022, the number of workers under civil law contracts was estimated at 1.3 million (Nowak, 2022) while the number of registered self-employed (entrepreneurs) in 2023 was 1.7 million.²

The large number of civil law contracts result primarily from the abuse of the non-employee status (striving to reduce labour costs) and not from any unique features of the Polish economy.

Theoretically, work performed on terms characteristic of an employment relationship should be treated as such (Article 22 § 1¹ of the Labour Code). This applies to both working under a civil law contract as a natural person (including temporary workers) and self-employed workers (formally ‘entrepreneurs’ under the law). The reclassification of a civil law contract as an employment contract, however, requires an application to the labour court. Potential employees hardly ever use the opportunity to convert their status (Hajn and Mitrus, 2016: 81) because of this requirement of entering into a legal dispute with their current employer, with all the complexity and costs of court proceedings.

Self-employed persons in the strict sense and workers under civil law contracts are not covered by labour law’s comprehensive standards, which are supposed to guarantee decent working conditions. At the same time, their individual bargaining position is usually not strong enough to negotiate satisfactory working conditions with contractors. As a result, they often work under poor conditions (for example, long working hours, no overtime payments, no guarantee of paid annual leave) and are exposed to the risk of exploitation.³ Therefore, in the case of the self-employed and other workers, collective protection could prove particularly important.

Two of the main forms of collective bargaining are negotiations aimed at concluding a collective agreement (regulated in Chapter 11 of the Labour Code) (for example, Baran, 2019; Hajn, 2022), and a procedure aimed at resolving collective disputes that establishes a legal framework for exercising the right to strike or other collective action (see, for example, Baran, 2016: 425–443). Collective bargaining in Poland is in deep crisis (Czarzasty, 2019; Pisarczyk, 2019). Union density has been falling and now is just over 10 per cent. Most union members belong to one of the three largest trade unions or confederations: NSZZ ‘Solidarność’, Ogólnopolskie Porozumienie Związków Zawodowych (All-Poland Alliance of Trade Unions, ‘OPZZ’), and Forum Związków Zawodowych (Trade Unions Forum, ‘FZZ’) (Czarzasty and Mrozowicki, 2023: 834–842; GUS, 2023: 3). At the same time only 2.5 per cent of employers (21,600 out of 900,000) are members of an employer organisation (GUS, 2023).⁴ Most unionised employers, however, are large companies that employ up to 20 per cent of Polish workers.⁵ Not surprisingly, the collective bargaining system is uncoordinated and atomised. Multi-company bargaining is virtually non-existent (covering below 2 per cent of all employees). Company-level collective agreements are concluded only in certain industries and types of enterprises, such as state-owned and former state-owned companies and traditional sectors such as coal mining (Expert Opinion of 2022: Mądrzycki and Pisarczyk, 2022). According to the State Labour Inspectorate, in January 2024 company-level collective agreements covered 1,643,097 employees (approximately 12 per cent). In sectors in which self-employment is particularly prevalent (platform work, temporary work agencies) coverage is even lower.

In recent years, unions have developed new strategies to halt negative tendencies. By organising mass protests (for example, the teachers’ strike in 2019) and demanding that the government increase salaries for public workers (for example, civil servants) popular perceptions of the unions have changed slightly, helping to slow the decline in unionisation (Czarzasty and Mrozowicki, 2023: 846–847). For now, however, these are only initial symptoms of recovery.

Who are working people? Who can benefit from the right to collective bargaining?

Until the end of 2018 the right to form and join trade unions was reserved almost exclusively for employees (in other words, workers with proper employment contracts) and public functionaries. Despite the legislator’s restrictive approach some trade unions decided to represent non-employees (Owczarek and Chełstowska, 2016: 77). An example of an organised group of self-employed workers comprised taxi drivers working as ‘entrepreneurs’ (single-person businesses) for traditional taxi companies (they have been affiliated with NSZZ Solidarność). For instance, they protested against the fact that certain administrative requirements (licences, city ‘knowledge’ exam) did not apply to platform workers, which made competition between digital platforms and traditional companies unfair (Kozak-Maśnicka and Pisarczyk, 2022: 225). Midwives are another example, some of whom are employed under civil law contracts. Ogólnopolski Związek Zawodowy Pielęgniarek i Położnych (Polish Trade Union of Midwives), associated with FZZ, demanded, for example, the use of employment contracts in health care (OZZPiP, 2023). The trade unions also organised a number of mass protests against various abuses affecting non-employees, such as exploitation of civil law employment and Sunday working (Czarzasty and Mrozowicki, 2023: 847). All above-discussed cases concern either specific groups of workers or specific problems, however, and do not provide scope for general remarks concerning the whole labour market. In 2018, non-employees amounted to only 0.1 per cent of trade union members (GUS, 2019: 4).

The personal scope of collective bargaining was, as a rule, limited to employees. The provisions of collective agreements concluded for employees could be extended to workers performing tasks outside an employment relationship, however. The application of collective agreements to non-employees depended on the willingness of the parties to the agreement. According to research into registers of collective agreements, the option of extending their provisions to non-employees has been exercised relatively rarely (Expert Opinion of 2022: Mądrzycki and Pisarczyk, 2022). Some (rather rare) agreements have provided entitlements for the self-employed in specific areas (such as social benefits). Some other agreements require employers to use only employment contracts to engage workers for specific jobs. There have also been a number of collective disputes in which trade unions demanded that employers not engage workers as self-employed but under terms typical of employment relationships (Kakowska-Mehring, 2012). Nonetheless, the effects of collective bargaining on the situation of the self-employed have been very limited.

Polish trade unions have tried to draw the attention of international bodies and national courts to the collective status of the growing group of non-employees. In 2011 NSZZ Solidarność lodged a complaint (Case No. 2888) with the ILO’s Committee on Freedom of Association. The Committee requested that the Polish government take the necessary measures to ensure that all workers, without distinction, including the self-employed and those employed under civil law contracts, be given the right to establish and join organisations of their own choosing within the meaning of Convention No. 87 (Committee on Freedom of Association, 2012). The ILO’s mission to Poland in 2014 suggested that the self-employed and workers under civil law contracts should be able to express their collective voice (Solidarność, 2014). A turning point in the development of the legal framework for collective bargaining for the self-employed was the judgment of the Constitutional Court of 2 June 2015 initiated by the complaint lodged by OPZZ. The Constitutional Court declared that, in light of Articles 12 and 59(1) of the Constitution, the right to form and join trade unions could not be dependent on the legal form of employment (and limited to the employment contract only). Collective rights should be recognised in the case of all who perform work in person and for remuneration, and have interests that can be represented by trade unions. After a few years of legislative work and consultations with social partners (2016–2018), a reform of the law regulating collective bargaining was adopted. The Law of 5 July 2018 Amending the Law on Trade Unions and Some Other Laws (Item 1608, Journal of Laws 2018) came into force on 1 January 2019.

The amending law recognised a new category of actors in industrial relations: workers performing paid work who are not employees (Article 1¹ of the Law on Trade Unions). The law defines a worker as a person who is employed outside an employment relationship and:

– performs work for another person or entity;

– performs work for remuneration;

– does not hire other people for this work; and

– has rights and interests related to the performance of work that can be represented by a trade union.

Collective rights have been recognised in relation to those who perform ‘work’. This may suggest some form of permanence. A one-off or temporary provision of services does not have this feature. Continuity of employment is not required, however (Duraj, 2020: 73–74). Moreover, there must be a beneficiary/recipient of work: the employer (work vs service and employer vs client). Full trade union rights have been limited to those who perform work for remuneration. Neither a specific level of remuneration nor a specific number of working hours are required. To enjoy trade union rights, working people cannot employ other persons, irrespective of the legal basis of the employment. By engaging other persons, a self-employed person becomes an employer and their interests should be represented by an employers’ organisation. The last condition is the criterion of interests that can be represented collectively by a trade union. Although prima facie quite ambiguous, the criterion can constitute a legal instrument (used, for example, by courts) to distinguish workers from genuine freelancers (‘entrepreneurs’), who have interests that can be represented not by trade unions, but by business organisations. It can be assumed that trade union representation is desirable in both cases: working under conditions similar to those of employees (bogus self-employment), as well as when there is an imbalance with regard to bargaining positions. At the same time, recognition as a worker cannot be based solely on measurable criteria and requires evaluation case by case, which may influence the application of the new law (Countouris and De Stefano, 2021: 16).

The definition of a worker focuses on the features of work, not the legal form of employment. A specific form of employment does not constitute a criterion that determines whether someone should be treated as a worker. In practice, the main group of workers comprises those who perform work under the main types of civil law contract. Whether a worker is a formal entrepreneur or self-employed is of no importance. Collective rights can be exercised by both those who conclude civil law contracts as natural persons (workers – non-employees) and formal entrepreneurs or self-employed, if they meet the statutory conditions (Baran, 2018: 3). The adopted definition of worker is flexible and inclusive. Workers (non-employees) may form trade unions and their company organisations alone (workers’ trade unions) or together with employees (mixed trade unions) (compare Mitrus, 2021: 213). Workers, on an equal footing with employees, are included in the number of members, which enables exercising the rights of a company-level organisation (10 members) and acquiring representativeness.

Consequently, workers who are not employees may benefit from collective bargaining. The provisions of Chapter 11 of the Labour Code (Collective Agreements) applies mutatis mutandis to workers who are not employees (Article 21(3) of the Law on Trade Unions). This means that trade unions may negotiate collective agreements for both employees and workers (non-employees), as well as for workers (non-employees) only. The law does not explicitly exclude any matters from collective bargaining for non-employees. Consequently, collective agreements may establish working conditions for the self-employed and other workers under civil law contracts, including remuneration, but also working time and paid leave, occupational safety and health, work-life balance, and other things. Their provisions cannot infringe the rights of third parties.

A similar extension of the personal scope of collective bargaining took place as part of the collective dispute procedure. The provisions concerning employees apply mutatis mutandis to other workers (Article 6 of the Law on resolving collective disputes). This means that non-employees may exercise the right to strike. Collective agreements (concluded as a result of both procedures) apply, by virtue of law, to all employees and other workers employed in a company covered by an agreement (Mitrus, 2021: 214). The parties to an agreement may limit its personal scope. However, the limitation cannot be discriminatory. Unfortunately, the law does not explicitly provide for the prohibition of modifications in peius in individual civil law contracts (unlike in the case of employment contracts). As a result, it is unclear whether non-employees can waive their rights arising from collective agreements.

First results of legal changes with regard to collective bargaining for the self-employed

Despite the legislator’s expectations the reform did not boost trade union membership among workers (non-employees) (Government of the Republic of Poland, 2018: 32). The level of unionisation among workers remains very low (much lower than among employees). Unfortunately, trade unions do not have reliable statistics on the number of non-employees who are members. According to rather imprecise data presented by the Central Statistical Office, the proportion of non-employees among trade union members increased from 0.1 per cent in 2018 (GUS, 2019: 4) to approximately 1 per cent in 2022 (GUS, 2023: 4). The proportion of non-employees in the labour market is nearly 20 per cent.

Among a few initiatives launched by the largest trade unions one might mention a new strategy developed by Konfederacja Pracy, a trade union federation affiliated to OPZZ, which aims to attract young workers and create union structures in companies operating digital platforms.⁶ In October 2022, Konfederacja Pracy established organisations in companies acting under the Pyszne.pl umbrella (food-delivery company) (Rawa, 2022). One of the first collective actions supported by the new union was the protest of Pyszne.pl couriers, which started in December 2022. This protest was initiated by the couriers themselves. In 2023, the union issued a manifesto on platform workers’ rights underlining, among other things, the precarious position of this group, as well as the role of collective bargaining in raising their working conditions (OPZZ Konfederacja Pracy, 2023). In 2021, the first national trade union representing only self-employed people (‘wBREW’) was established. The union is meant to be ‘the voice of the voiceless’. It is going to represent all workers, from those working in traditional sectors to platform workers.⁷ However, so far, the unions, positioning themselves as representing non-employees, have conducted mainly preparatory and conceptual work aimed at working out how to build up a membership base (towards whom the union offer is to be addressed) and what collective actions could be undertaken to improve non-employees’ working conditions.

The unions have not yet initiated collective bargaining or organised a larger collective action to improve employment conditions. As a result, no collective agreement specifically (exclusively) for non-employees has been concluded at either company or supra-company level. Moreover, research in collective agreement registers has likewise revealed that the provisions of collective agreements concluded for employees hardly ever cover non-employees (Expert Opinion of 2022: Mądrzycki and Pisarczyk, 2022). Collective agreements usually do not set pay scales for work outside employment relationships. Relatively few provisions in collective agreements refer to selected social benefits for the self-employed and other workers. Relations between employers and trade unions representing non-employees are rather of an informal nature, sometimes called ‘working relations’ (Business Insider Polska, 2022). Perhaps these preliminary talks will provide a prelude to regular collective bargaining.

Because of the passivity of traditional actors, on the one hand, and the growing importance of atypical forms of employment, on the other, some groups of workers have organised spontaneous collective actions themselves. The most important examples are protests (‘strikes’) of couriers working for the Glovo and Pyszne.pl food-delivery platforms (however, some of them enjoy employee status). The Glovo workers found the operation of the algorithm highly unfavourable. The couriers at Pyszne.pl demanded a pay increase to reflect inflation, as well as weekend bonuses (offered by the platform only in the biggest cities) and other benefits (related to bad weather and seniority). Glovo couriers who took part in the protest, to put pressure on the platform, accepted orders but then did not carry them out. The protest took place in several cities and resulted in some changes in the platform’s policy. In the end, however, the results were less than expected because the company maintained or restored some of the provisions that had been challenged (Wiadomości Handlowe, 2021). The idea behind the Pyszne.pl protest was not to accept orders in the pre-Christmas peak, in particular on 19 December (in some cities for even longer). The protests were a result of workers’ self-organisation and could be treated (as in the past in the United Kingdom and Italy) as a form of proto-strikes (Cini et al., 2022: 349–351).

Perhaps it is still too early to judge, but the first effects of the reform have been disappointing (compare Latos-Miłkowska, 2023). It is paradoxical that trade unions, which over recent years have launched some successful initiatives and contributed significantly to the recognition of non-employees’ rights (Czarzasty and Mrozowicki, 2023: 846–847), are currently unable to take advantage of existing opportunities.

Why has the reform not brought the expected results and what legal changes could improve the situation?

The reasons for the unsatisfactory results of the reform are rooted in both the attitudes and strategies of social partners, as well as the existing legal framework.

Research interviews with Polish employers have revealed that they do not appreciate the benefits of standardising working conditions. Most of them treat collective agreements as an additional burden and an obstacle to running their business. As a result, the employers expect greater flexibility, also with regard to working conditions (Ministry of Family and Social Policy, 2022). This attitude applies especially to civil law employment, which employers have used precisely to rein in labour costs, because workers under civil law contracts enjoy only limited employee rights. It is not surprising that employers are reluctant to engage in collective bargaining for non-employees and have adopted counter-measures against the rare collective actions (for example, cutting off protesting workers from platforms or hiring substitutes). Employers have also tried to minimise the effects of collective actions for workers (for example, by restoring previous conditions), which is easier, because negotiations for non-employees usually take place outside typical legal procedures, while the relevant agreements are not treated as sources of law (discussed below).

The key factor, however, is the attitude of trade unions. As demonstrated by interviews with trade union activists, the largest Polish trade unions, including NSZZ Solidarność and the unions united in OPZZ, are concentrated in traditional unionised branches. The unions do not fully recognise the particular features of working outside the employment relationship, including its temporary nature in many cases (see, for example, Duraj, 2020), weaker integration of non-employees (such as teleworkers and platform workers), as well as the fact that numerous non-employees are young people (who have different expectations towards work and use more modern ways of communication) (compare Visser, 2019: 25A) and migrant workers. Trade unions, used to traditional forms of employment, do not perceive workers under civil law contracts as part of their natural membership base. Consequently, they have problems identifying the needs of non-employees and defining ways to represent them efficiently. As a result, none of the main trade unions has adopted a comprehensive strategy to address the needs of those working outside the employment relationship. Trade union problems with mobilising atypical workers is not unique to Poland. For instance, gig workers in other countries (for example, in France and Italy) chose self-organisation instead of traditional forms of collective representation (Cini et al., 2022: 356–357). However, trade unions in other countries have managed to adopt some successful strategies for non-employees (Waddington et al., 2023: 1097, 1108–1109). This has not been achieved in Poland so far, however. The trade unions have not yet developed a concept that could be adapted to non-employees and be attractive to them.

Not surprisingly, trade unions have not commenced regular collective bargaining for non-employees. Instead, they tend to react to situations, for example, by supporting or joining protests organised spontaneously by the workers. The unions have also used alternative methods to typical collective bargaining, such as informal negotiations with employers (similar to trade union strategies in other CEE countries: Kahancová and Martišková, 2023) and initiatives aimed at establishing statutory standards for non-employees, including lobbying efforts targeted at politicians. This occurred particularly in the period 2015–2023 when the ruling party declared its support for vulnerable social groups (Gyulavári and Pisarczyk, 2023). Both types of actions may help to improve the position of workers. However, the results of informal negotiations (agreements, covenants) are not recognised as sources of law and may be modified by individual contracts to the detriment of workers (non-employees), while statutory conditions focus on selected issues (such as the statutory minimum hourly rate) and thus do not establish a comprehensive and effective system for protecting workers’ interests. At the same time, the development of statutory conditions may discourage trade unions from initiating typical collective bargaining (Butković et al., 2023). On the other hand, some complaints lodged by trade unions with the ILO and the Constitutional Court have led to profound legislative changes and the recognition of collective rights for non-employees.

The weakness of collective bargaining for non-employees cannot be blamed on the social partners alone. Generally speaking, the state does not do enough to support the development of collective bargaining. There are no legal measures to stimulate social dialogue, such as an obligation to conduct periodic negotiations, or promote their results. This might include the extension of multi-company collective agreements’ scope of application (as in France). The state remains neutral but this only entrenches the weakness of social dialogue, embedding restrictions and passivity (trade unions) or social partner resistance (employers). What is worse, some legal measures may be perceived as obstacles to developing collective bargaining, in particular in relation to non-employees and, as a result, implementation of the Minimum Wage Directive. To some extent, this is because the legal framework has not been adapted to work performed outside traditional employment relationships. Laws regulating collective bargaining for employees apply mutatis mutandis to other workers.

First, trade unions are the sole agents in negotiating collective agreements and resolving collective disputes. Furthermore, collective bargaining aimed at concluding a collective agreement at company level is supposed to be conducted within a formal structure, namely a company-level trade union. Such an organisation can be established by a minimum of 10 employees and/or other workers. However, workers who are not employees are counted if they have been employed by the given employer for at least six months. For those workers who are taken on for shorter periods, the seniority requirement constitutes an important obstacle to trade union activity (OPZZ Konfederacja Pracy, 2023). Theoretically, they may ask for representation from a trade union established by employees, inside or outside a company. But because of the low level of union activity in the realm of atypical employment and the lack of adequate provisions for workers under civil law contracts, this possibility has scarcely been used (OPZZ Konfederacja Pracy, 2023). It is also unclear whether temporary (agency) workers may join trade unions at their temporary workplaces. As a result, workers (non-employees) – such as the protesting couriers – have organised and have been represented by informal agents (such as ad hoc committees). Informal representatives, who are not treated as legitimate bargaining agents, act outside obligatory legal procedures. Consequently, collective actions – including strikes – organised under such circumstances do not meet the legal requirements with regard to resolving collective disputes. Participants in spontaneous protests, and especially their organisers, are thus exposed to liability for damages and criminal responsibility for organising collective action if the actions are qualified as illegal. Although to date no employers (for example, digital platforms) have brought any claims against protesting workers, the risk that they may constitutes a significant obstacle to collective bargaining for non-employees. The procedural problem may be solved either by recognising collective bargaining by non-union representatives (such as ad hoc committees) for workers who are not employees or, if the legislator is reluctant to undermine the unions, by adopting more open union representation, for example, by delegates designated by trade unions operating outside companies. Given this possibility, the unions could train negotiators to deal with issues affecting non-employees. The law should also recognise the right of temporary workers to join organisations operating in host companies.

Second, agreements reached outside formal procedures (without an explicit statutory basis) are not recognised as legally binding on third parties (Article 9 §1 Labour Code). They are binding between the parties – namely employers and bodies representing workers – but for individual workers they are treated as pactum in favorem tertii (an agreement in favour of a third party) (Hajn, 2022: 382). This entails significant legal consequences. Workers may waive their rights or agree to less favourable working conditions than those arising from an agreement. Employers may take advantage of their bargaining position to persuade workers to accept less favourable conditions. To protect workers effectively, modifications of collective agreements to the detriment of the workers should, as a rule, be prohibited. Moreover, the law should explicitly recognise the normative effect of collective agreements concluded for non-employees and impose a non-regression clause: workers should not be able to waive their collectively established rights. Third, traditional strikes may turn out to be inappropriate for non-employees, as illustrated by the protests organised by some couriers. Employers can easily replace such workers with other contractors or just exclude striking workers, for example, by cutting them off from a platform if they do not accept orders. To put pressure on employers, platform workers must accept orders but then decline to fulfil them. This, however, exposes them to the risk of contractual liability. The effective use of the right to strike by non-employees requires legal recognition (as in the case of employees) of the fact that exercising the right to strike does not constitute a breach of obligation.

All the above-mentioned amendments may contribute not only to improving the position of non-employees but also to an overall increase in the coverage of collective agreements in line with the Adequate Minimum Wage Directive.

Finally, it should also be emphasised that strengthening collective bargaining for non-employees must take place within the framework of other structural changes. First of all, no improvement in collective bargaining for workers under civil law contracts (a group that faces particular obstacles in establishing social dialogue) is possible without an overall improvement in industrial relations in Poland. Some prospect of change can be associated with EU actions, including implementation of the Minimum Wage Directive. The first draft of a law on collective agreements, aimed at increasing coverage, was presented by the government in May 2023 and submitted for consultation with national social partners. The draft provides, among other things, mandatory periodic negotiations for employers not covered by collective agreements (if they employ at least 50 employees and/or other workers), simplifying the procedure of negotiating collective agreements (including abolition of the obligation to register agreements) and promoting negotiations by providing organisational support to social partners, for example, by mediators. Last but not least, the draft confirms that workers (non-employees) will not be able to waive their rights arising from collective agreements (Guza, 2023). Even so, the problem of abuse of civil law contracts, in particular the large number of people who are ‘self-employed in name only’, should be resolved. Recognition of the employee status of these bogus self-employed would improve the position of the current self-employed and other workers under civil law contracts within the framework of collective bargaining. Once again, EU law has aroused prospects for change, for example, the proposed presumption of an employment relationship in platform work. Furthermore, even without statutory changes trade unions could intensify their efforts to enforce existing standards (Waddington et al., 2023: 1109).

Conclusions

Poland has taken a first, very important step by extending the personal scope of freedom of association in trade unions and, as a result, the right to collective bargaining. The adopted definition of worker (a person performing paid work) is flexible and inclusive. As a result, in theory, the vast majority of workers (for example, the solo self-employed) could benefit from collective protection. But the legal framework must confront the reality of social dialogue. Despite the formal possibility, social partners have not stepped up collective bargaining for the self-employed. Over the past three years, there has been little increase in collective bargaining for their benefit. Specifically, no collective agreements have been concluded for the self-employed. Collective agreements concluded for employees very rarely cover them, either. Simple recognition of the right to collective bargaining is not enough to improve the situation.

There are a number of reasons why social partners have not used the legal instruments available to them. Their attitude remains the most serious problem. Employers are reluctant to set up collective bargaining for non-employees, while trade unions have not created a comprehensive offer for them and have remained passive rather than taking collective action for the sake of those outside traditional employment relationships. The existing legal framework does not facilitate collective bargaining for non-employees either. The state, if it wishes to expand the scope of collective bargaining, must support the social partners. Regulations that make negotiations difficult should be abolished, but dialogue should be actively promoted and solutions developed that are tailored to the situation of non-employees. With reference to the experience of other countries, we can assume that Poland is at the stage of self-organisation of non-employees and proto-strikes. The next phase may be the institutionalisation of trade union representation. The difference, however, is the systemic breakdown of collective bargaining in Poland. Without an overhaul of the collective bargaining system and elimination of abuses of civil law contracts, no fundamental change should be expected for the self-employed.

Footnotes

Funding

This study was financially supported by the National Science Centre in Poland [project No. 2018/29/B/HS5/02600 ‘Autonomous Sources of Labour Law’].

1

The article is based, among other things, on 35 interviews with representatives and experts of trade unions, employers and employers’ organisations, including representatives and experts of the largest national unions (confederations) with the widest spectrum of representation (also in fields in which self-employment is particularly widespread) as well as on 20 surveys completed by the social partners.

2

(accessed 27 November 2023).

3

Since 2017, however, workers under civil law contracts have been covered by a statutory minimum hourly rate.

4

(accessed 22 November 2023).

5

https://www.oecd-ilibrary.org/docserver/1fd2da34-en.pdf?expires=1666950035&id=id&accname=guest&checksum=B6E879D468BF1F8C7C21DF1A47D3FCA7 (accessed 22 November 2023).

6

(accessed 7 November 2023).

7

(accessed 7 November 2023).

References

Baran

(2016) Outline of the Polish Labour Law System. Warsaw: Wolters Kluwer.

Baran

(2018) O zakresie prawa koalicji w związkach zawodowych po nowelizacji prawa związkowego z 5 lipca 2018 r. [On the personal scope of freedom of association after the amendment of the Trade Unions Act]. Praca i Zabezpieczenie Społeczne 9: 2–4.

Baran

(2019) Model of collective labour agreements in the Polish legal system. Praca i Zabezpieczenie Społeczne 2: 6–8.

Biasi

(2018) ‘We will all laugh at gilded butterflies’. The shadow of antitrust law on the collective negotiation of fair fees for self-employed workers. European Labour Law Journal 9(4): 354–373.

Brameshuber

(2022) (A fundamental right to) Collective bargaining for economically dependent, employee-like workers. In: Miranda Boto

Brameshuber

(eds) Collective Bargaining and the Gig Economy: A Traditional Tool for New Business Models. Oxford: Hart Publishing, pp. 227–252.

Business Insider Polska (2022) Strajk w Pyszne.pl. Dostawcy mogą protestować nawet tydzień [(Strike in Pyszne.pl. Workers may protest even a week)]. Available at: https://businessinsider.com.pl/biznes/strajk-w-pysznepl-dostawcy-moga-protestowac-nawet-tydzien/yjlqk63 (accessed 15 May 2023).

Butković

Czarzasty

Mrozowicki

(2023) Gains and pitfalls of coalitions: Societal resources as sources of trade union power in Croatia and Poland. European Journal of Industrial Relations 29(1): 43–61.

Cini

Maccarrone

Tassinari

(2022) With or without U(nions)? Understanding the diversity of gig workers’ organizing practices in Italy and the UK. European Journal of Industrial Relations 28(3): 341–362.

Countouris

De Stefano

(2021) The labour law framework: Self-employed and their right to bargain collectively. In: Waas

Hießl

(eds) Collective Bargaining for Self-Employed Workers in Europe. Alphen aan den Rijn: Wolters Kluwer, pp. 3–17.

10.

Czarzasty

(2019) Collective bargaining in Poland: A near-death experience. In: Müller

Vandaele

Waddington

(eds) Collective Bargaining in Europe: Towards an Endgame, vol. 2. Brussels: ETUI, pp. 465–481.

11.

Czarzasty

Mrozowicki

(2023) Poland. Trade unions developing after a decline. In: Waddington

Müller

Vandaele

(eds) Trade Unions in the European Union. Picking up the Pieces of the Neoliberal Challenge. Brussels: Peter Lang, pp. 833–869.

12.

Deskalova

(2021) The competition law framework and collective bargaining agreements for self-employed: Analysing restrictions and mapping exemption opportunities. In: Waas

Hießl

(eds) Collective Bargaining for Self-Employed Workers in Europe. Alphen aan den Rijn: Wolters Kluwer, pp. 19–51.

13.

Duraj

(2020) Prawo koalicji osób pracujących na własny rachunek po nowelizacji prawa związkowego – szanse i zagrożenia [Collective rights of the self-employed after the reform of the law on trade unions – opportunities and challenges]. Studia z Zakresu Prawa Pracy i Polityki Społecznej 27(2): 67–77.

14.

European Commission (2022) Poland: Record number of migrants working legally. Available at: https://ec.europa.eu/migrant-integration/news/poland-record-number-migrants-working-legally_en (accessed 15 May 2023).

15.

Eurostat (2022) Statistics Explained. Self-employment: Outline and latest developments. Available at: https://ec.europa.eu/eurostat/statistics-explained/index.php?title=Employment_in_detail_-_quarterly_statistics&oldid=577568#Self-employment:_outline_and_latest_developments (accessed 15 May 2023).

16.

Eurostat (2023) Employment by age, sex and employment status. Available at: https://ec.europa.eu/eurostat/databrowser/view/LFSQ_EGAPS__custom_7739265/default/&?lang=en (accessed 9 October 2023).

17.

Freedland

Kountouris

(2017) Some reflections on the ‘personal scope’ of collective labour law. Industrial Law Journal 46(1): 52–71.

18.

Government of the Republic of Poland (2018) Uzasadnienie rządowego projektu ustawy o zmianie ustawy o związkach zawodowych oraz niektórych innych ustaw [Explanatory statement to the bill amending the Trade Unions Act], druk sejm. nr 1933, VIII kadencja Sejmu RP. Available at: https://www.sejm.gov.pl/sejm8.nsf/PrzebiegProc.xsp?nr=1933 (accessed 15 May 2023).

19.

GUS (2019) Partnerzy dialogu społecznego – związki zawodowe i organizacje pracodawców – wyniki wstępne [Social partners – trade unions and employers’ organisations – initial results]. Available at: https://stat.gov.pl/obszary-tematyczne/gospodarka-spoleczna-wolontariat/gospodarka-spoleczna-trzeci-sektor/partnerzy-dialogu-spolecznego-zwiazki-zawodowe-i-organizacje-pracodawcow-wyniki-wstepne,16,1.html (accessed 7 November 2023).

20.

GUS (2023) Główny Urząd Statystyczny [Statistics Poland]. Partnerzy dialogu społecznego – organizacje pracodawców i związki zawodowe w 2022 r. [Social partners – organizations of employers and trade unions in 2022]. Available at: https://stat.gov.pl/obszary-tematyczne/gospodarka-spoleczna-wolontariat/gospodarka-spoleczna-trzeci-sektor/partnerzy-dialogu-spolecznego-zwiazki-zawodowe-i-organizacje-pracodawcow-wyniki-wstepne-w-2022,16,2.html (accessed 9 October 2023).

21.

Guza

(2023) Układ zbiorowy tylko na pięć lat. Czy będzie mniej korzystny niż Kodeks pracy? [Collective agreement only for five years. Will it be less favourable than the Labour Code] Business Insider. Available at: https://businessinsider.com.pl/prawo/praca/koniec-bezterminowych-ukladow-zbiorowych-rzad-szykuje-rewolucje-w-prawie-pracy/6v54qpr (accessed 13 January 2024).

22.

Gyulavári

(2020) Collective rights of platform workers: The role of EU law. Maastricht Journal of European and Comparative Law 27(4): 406–424.

23.

Gyulavári

Pisarczyk

(2023) Populist reforms in Hungary and Poland: Same song, different melodies. International Journal of Comparative Labour Law and Industrial Relations 39(1): 49–70.

24.

Hajn

(2022) Collective agreements in Poland in the light of international standards. Studia z Zakresu Prawa Pracy i Polityki Społecznej 29(4): 377–385.

25.

Hajn

Mitrus

(2016) Poland. In: Blanpain

(ed.) International Encyclopaedia of Laws: Labour Law and Industrial Relations. Alphen aan den Rijn: Kluwer Law International, pp. 1–318.

26.

Hießl

(2021) National approaches to collective bargaining for the self-employed: Common trends, innovative potential and unresolved problems. In: Waas

Hießl

(eds) Collective Bargaining for Self-Employed Workers in Europe. Alphen aan den Rijn: Wolters Kluwer, pp. 265–288.

27.

International Labour Office (2018) Freedom of Association. Compilation of Decisions of the Committee on Freedom of Association. Geneva: ILO.

28.

Jaspers

(2019) Collective bargaining in EU law. In: Jaspers

Pennings

Peters

(eds) European Labour Law. Cambridge: Intersentia, pp. 245–308.

29.

Kahancová

Martišková

(2023) Strengthening legislation, weakening collective bargaining? Two faces of trade union strategies in Czechia and Slovakia. European Journal of Industrial Relations 29(1): 63–81.

30.

Kakowska-Mehring

(2012) Pracownicy LOTTO szykują się do strajku [LOTTO workers are preparing to strike]. Available at: https://praca.trojmiasto.pl/Pracownicy-LOTTO-szykuja-sie-do-strajku-n46145.html?strona=2 (accessed 9 October 2023).

31.

Kozak-Maśnicka

Pisarczyk

(2022) Extending the personal scope of collective bargaining as a chance for gig workers? The Polish case. In: Miranda Boto

Brameshuber

(eds) Collective Bargaining and the Gig Economy: A Traditional Tool for New Business Models. Oxford: Hart Publishing, pp. 211–226.

32.

Latos-Miłkowska

(2023) The right to unionise in Poland after the amendment of the law on trade unions. European Labour Law Journal 14(1): 108–113.

33.

Lewandowski

(2018) Case Study. Gaps in Access to Social Protection for People Working Under Civil Law Contracts in Poland. European Commission, Directorate-General for Employment, Social Affairs and Inclusion. Luxembourg: Publications Office of the European Union.

34.

Lewandowski

Magda

(2017) Temporary employment, unemployment and employment protection legislation in Poland. In: Piasna

Myant

(eds) Myths of Employment Deregulation: How It Neither Creates Jobs nor Reduces Labour Market Segmentation. Brussels: ETUI, pp. 143–163.

35.

Loi

(2022) The boundaries between collective agreements and statutory legislation in the gig economy. In: Miranda Boto

Brameshuber

(eds) Collective Bargaining and the Gig Economy: A Traditional Tool for New Business Models. Oxford: Hart Publishing, pp. 21–33.

36.

Mądrzycki

Pisarczyk

(2022) Ekspertyza układy zbiorowe [Expert opinion on collective agreements]. Available at: https://www.gov.pl/web/dialog/krajowy-plan-odbudowy (accessed 15 May 2023).

37.

Ministry of Family and Social Policy (2022) Raport z konsultacji z partnerami społecznymi [Report on consultations with social partners]. Available at: https://www.gov.pl/web/dialog/krajowy-plan-odbudowy (accessed 15 May 2023).

38.

Ministry of Family and Social Policy (2023) Informacja o działalności agencji zatrudnienia w 2022 r. [Information on activities of employment agencies in 2022]. Available at: https://psz.praca.gov.pl/documents/10828/167955/Raport%20o%20dzia%C5%82alno%C5%9Bci%20agencji%20zatrudnienia%20w%20Polsce%20w%202022%20r.pdf/a3c80163-912d-42ea-9419-0043e0f1a331?t=1689766779903 (accessed 13 January 2024).

39.

Miranda Boto

(2022) Collective bargaining and the gig economy. In: Miranda Boto

Brameshuber

(eds) Collective Bargaining and the Gig Economy: A Traditional Tool for New Business Models. Oxford: Hart Publishing, pp. 3–18.

40.

Mitrus

(2021) Poland. In: Waas

Hießl

(eds) Collective Bargaining for Self-Employed Workers in Europe. Alphen aan den Rijn: Wolters Kluwer, pp. 199–216.

41.

Nowak

(2022) ‘Rynek pracownika’ po polsku. Co najmniej 1,3 miliona ludzi na śmieciówkach, najwięcej od lat [‘Employee market’ in Polish. At least 1.3 million workers on civil law contracts, the highest number over recent years]. Available at: https://oko.press/rynek-pracownika-po-polsku-co-najmniej-13-miliona-ludzi-na-smieciowkach-najwiecej-od-lat (accessed 31 October 2023).

42.

OECD (2023) Self-employment rate (indicator). Available at: https://data.oecd.org/emp/self-employment-rate.htm (accessed 15 May 2023).

43.

OPZZ Konfederacja Pracy (2023) Co musimy zmienić w pracy platformowej. Manifest pracowników platformowych zrzeszonych w OPZZ Konfederacja Pracy [What shall we change in platform work? Manifesto of platform workers united in OPZZ Konfederacja Pracy]. Available at: https://konfederacjapracy.org.pl/wp-content/uploads/2023/05/manifest-praca-platformowa-opzzkp.pdf (accessed 28 October 2023).

44.

Owczarek

Chełstowska

(2016) Amazon po polsku. Warunki zatrudnienia i relacje z pracownikami [Amazon in Polish. Working conditions and relations with workers]. Instytut Spraw Publicznych/Friedrich Ebert Stiftung. Available at: https://library.fes.de/pdf-files/bueros/warschau/12842.pdf (accessed 7 November 2023).

45.

OZZPiP (2023) Związek i jego historia [The union and its history]. Available at: https://ozzpip.pl/about/ (accessed 7 November 2023).

46.

Pérez Prado

(2021) The legal framework of platform work in Spain: The new Spanish ‘riders’ law’. Available at: https://cllpj.law.illinois.edu/content/dispatches/2021/Dispatch-No.-36.pdf (accessed 15 May 2023).

47.

Pisarczyk

(2019) The crisis of the collective bargaining system in Poland. International Journal of Comparative Labour Law and Industrial Relations 35(1): 57–77.

48.

Rainone

Countouris

(2021) Collective bargaining and self-employed workers: The need for a paradigm shift. Available at: https://www.etui.org/publications/collective-bargaining-and-self-employed-workers (accessed 29 October 2023).

49.

Ratti

(2022) A long road towards the regulation of platform work in the EU. In: Miranda Boto

Brameshuber

(eds) Collective Bargaining and the Gig Economy: A Traditional Tool for New Business Models. Oxford: Hart Publishing, pp. 39–59.

50.

Rawa

(2022) W Pyszne.pl utworzono związek zawodowy [A trade union has been established at Pyszne.pl]. Available at: https://www.wiadomoscihandlowe.pl/artykul/w-pyszne-pl-utworzono-zwiazek-zawodowy-to-pierwsza-taka-organizacja-w-sektorze-delivery (accessed 15 May 2023).

51.

Solidarność (2014) Skarga (nr 2888) dot. Prawa koalicji i ochrony związkowej osób świadczących pracę na podstawie umów cywilnoprawnych i samozatrudnionych [Complaint (No. 2888) concerning freedom of association employed under civil law contracts and self-employed]. Available at: https://www.solidarnosc.org.pl/projekty-i-dokumenty/skarga-nr-2888-dot-prawa-koalicji-i-ochrony-zwiazkowej-osob-swiadczacych-prace-na-podstawie-umow-cywilnoprawnych-i-samozatrudnionych/ (accessed 7 November 2023).

52.

Visser

(2019) Trade unions in the balance. ILO ACTRAV Working Paper. Available at: https://www.ilo.org/wcmsp5/groups/public/—ed_dialogue/—actrav/documents/publication/wcms_722482.pdf (accessed 15 May 2023).

53.

Waddington

Müller

Vandaele

(2023) Conclusion: Trade unions picking up the pieces from the neoliberal challenge. In: Waddington

Müller

Vandaele

(eds) Trade Unions in the European Union. Picking up the Pieces of the Neoliberal Challenge. Brussels: Peter Lang, pp. 1093–1148.

54.

Wiadomości Handlowe (2021) Trzeci strajk kurierów Glovo w tym roku. Jakie mają postulaty? ‘Nie opłaca się jeździć’. Available at: https://www.wiadomoscihandlowe.pl/artykul/trzeci-strajk-kurierow-glovo-w-tym-roku-jakie-maja-postulaty-nie-oplaca-sie-jezdzic (accessed 15 May 2023).