Requirement to report the number of members

The rights of a trade union do not continue indefinitely. Parliament has stipulated that in order to extend (or secure) those rights, unions must meet their reporting obligations with respect to employers.

Functioning trade unions must report their membership numbers every six months to the employers at which they are active.

This information should provide:

• the status on 30 June by July 10, 
• the status on 31 December by January 10.

Newly formed unions must submit the above information within two months from their date of formation.

Does a newly formed union have to report information twice: within two months and then again for 30 June and 31 December?

Yes. The regulations explicitly state that the submission of information within two months from the date of a union’s formation does not dispense with the requirement to submit it also for the next regular reporting date, namely 30 June and 31 December respectively, by the 10th day of the following month.

Legislators have not set out the form in which this information should be provided. Provisions do not require it to be in writing with the handwritten signatures of persons authorised to represent the union (the most common case in practice). Therefore, sending a scan to the employer with manually signed information must also be regarded as acceptable.

May one ask a trade union to confirm information that was given verbally?

No, but in such a situation it is best to request that the information is confirmed in documentary form (e.g. in an email).

This is because, if a given employer has more than one trade union, particular unions may request the employer to forward for inspection the information reported by another union (obviously, verbal information cannot be made available "for inspection"). In such a situation, there are grounds for requesting the information in documentary form, so that the employer may meet its obligations.

Consequences of failure to report information on membership levels

It is important for employers to know that if a trade union fails to report the number of its members this causes it to lose all of its rights. Although this penalty may appear harsh, it is temporary: the rights are restored as soon as the trade union has met its obligation and supplied the employer with the appropriate information. Therefore, the union does not have to wait until the next reporting period – the supply of the missing details will be sufficient to regain the rights that were lost.

Does the loss of rights also cause a loss of special protection?

Yes, but only until the information on the number of members is actually (later) submitted, which will trigger a recovery of union rights and thus the special protection of union officials.

Verification of a trade union’s membership level by an employer

The Act on Trade Unions allows employers and other trade unions to challenge a level of membership reported by a union.

Within 30 days of receiving the details of a union’s membership level, the employer may object to it without having to provide a justification. In accordance with regulations, the objection should be in writing and signed by hand or a qualified electronic signature by a person authorised to represent the employer.

Other trade unions at the same employer may also do this. For them, the deadline for filing an objection is also 30 days from when the challenged union reported its level of membership to the employer. In order to assess whether it is worth filing an objection, a union may ask the employer to allow it to inspect the membership level reported by the other union.

Once 30 days have passed from when a union has reported its membership level, it is no longer admissible for either the employer or other unions to file an objection.

To whom should the employer forward the objection?

It should be sent to the persons who are authorised to represent the trade union that is the subject of the objection.

After receiving an objection, the trade union must file an application to the district court (with jurisdiction for the employer’s registered office) for it to establish the level of its membership. It has 30 days to submit this, from when it received the objection. If it fails to do so on time, it loses its rights, until it has filed an appropriate application to the court.

Such court proceedings (conducted as non-litigious proceedings) may also include the employer as a participant. This means, for example, that it may submit requests for evidence. The level of the employer’s involvement in the case may have a major impact on its outcome.

From the employer’s point of view, a major limitation is that, under the regulations, only the court and the union may process the personal data of the trade union’s members. The employer has no access to the list of members, which makes it difficult, in practice, to check whether a given person is actually working for the employer and is also a member of the trade union.

What evidence may an employer submit to support its objection?

During the proceedings, the employer may present, as a participant, any evidence to demonstrate that the information which the trade union presented does not reflect the actual status.

For example, such evidence may include:

• testimony of witnesses (e.g. former employees - former union members who should not have been included in the report at issue),
• documents with details of deductions of membership dues (although a mere failure to pay dues does not confirm lack of membership of a trade union)
• information on the membership levels of other trade unions (e.g. if the information provided shows that the trade unions have more members than there are employees and persons working on other contractual bases at the employer).

Significantly, if the ruling is unfavourable for the employer, namely if the court finds that the number of members that the trade union submitted is correct, that employer then loses the right to file objections to that trade union for one year from the date of the final ruling on the matter.

Penalties for trade union officials who provide false information about their union’s level of membership

Due to the importance of the reporting obligation binding trade unions, regulations provide for criminal penalties for submitting false data.

A trade union official who intentionally inflates a membership number to obtain or maintain the union’s rights (whether workplace, inter-workplace or representative) commits a crime. This is punishable by a fine of from PLN 100 to as much as PLN 1,080,000.

In practice, criminal liability applies mainly to situations in which the declared membership level is near the required minimum, for example if a union claims to have 10 members, but in reality, has only five. In contrast, if a union overstates its membership by a few persons, but still far exceeds the required threshold (e.g. declaring 110 members instead of 108), this will not affect its rights, so there will be no grounds for any penalty.

These provisions may be used in two ways. First as a repressive measure, if the court finds that the level of membership has been deliberately inflated. Secondly, as a measure to prevent such acts, just by simply informing unions of their possible criminal liability.

Summary

The above procedure allows employers to control, in a limited extent, the veracity of what trade unions state. Clearly, statutory regulations have a number of shortcomings that often mean that the verification of a trade union’s level of membership is only an illusion (especially at the judicial stage), nevertheless its final effect will depend on the initiatives that employers decide to undertake.

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