How Law and Justice (mis)used the pandemic to dismantle social dialogue in Poland

With the independence of Poland’s judiciary already compromised, the autonomy of social partnership has become the latest target of the ruling populists.

On March 31st the Polish parliament adopted the Act on Special Solutions Related to the Prevention, Counteracting and Combating of Covid. Its title suggests the act’s focus should be on tackling the crisis caused by the coronavirus. In reality, however, the government and politicians of the Law and Justice Party (PiS) have used the pandemic to limit social dialogue in Poland.

Initially, the government intended the bill to exclude trade unions from representing workers if, during the crisis, employers planned to introduce special measures amending workers’ terms and conditions. Following union protests, the regulation was removed from the draft before submission to parliament.

But the unions’ relief was brief. To their and the employers’ surprise, a group of PiS MPs in the lower chamber (Sejm) introduced two amendments on the functioning of the Social Dialogue Council (the Polish tripartite body), which allowed the prime minster, Mateusz Morawiecki, to dismiss members of the council.

The bill was then debated in the upper chamber (Senate), dominated by the opposition, which rejected the amendments. It came back to the Sejm for final approval and—regardless of protests by the social partners, as well as of the higher majority required to reject Senate amendments—the Sejm approved the regulations restricting the independence of the council.

The same day, the Polish president, Andrzej Duda, also of the PiS party, signed the act. It came immediately into force.

Symbolic gesture

In a somewhat symbolic gesture, Duda later decided to submit the regulations on the council to the Constitutional Tribunal, to assess whether they were in line with the Polish constitution. The Constitutional Tribunal is however totally dependent on the PiS, which has appointed almost all of its judges (in a process heavily criticised by the European Commission). Involving the tribunal seems to have been little more like a smokescreen to divert public and social partners’ criticisms.

The act caused outrage among the Polish, and European, social partners, because of how it exploited the pandemic to dismantle social dialogue. In a joint letter, the European social partners told Morawiecki and Duda:

The autonomy of Social Partners is a founding element of social dialogue, guaranteed by international and European law. Furthermore, social dialogue is a key instrument to fight against the economic and social consequences of Covid-19 and Governments, all over Europe, should be supporting social partners for them to succeed in this endeavor. Therefore, we do not understand that a new legal act allowing the Prime Minister to dismiss at will members of the Social Dialogue Council during the Covid-19 pandemic was adopted in Poland.

Importantly, one of the two regulations on the council, article 46, has no time limit on its validity and will be still in force after the end of the pandemic. And while article 85 allows the prime minister to dismiss members of the council only during this emergency, article 46 allows him to do so under two circumstances: if they co-operated with the Communist security authorities under the former regime or engaged in inappropriate actions against the council which was unable to conduct transparent, substantive and regular dialogue among workers and employers’ organisations and the government side. The second reason, being extremely ambiguous, could be easily used to remove any member who did not support government policies in the future.

Difficult to comprehend

The logic behind the PiS decision remains difficult to comprehend. The party not only alienated the social partners and reduced their trust to the lowest possible level but offended its closest supporter—the Solidarność trade union. It was the first time during the lifetime of PiS governments that the union made such a strong anti-government statement:

Unfortunately—and this is the worst of all—trust has been undermined, and undermined trust cannot be easily rebuilt. Solidarność does not forget such things and this will have its negative consequences in the future.

Maybe what motivated the PiS is simple: it showed again its intention to build an authoritarian system, without democratic supervision, and so without independent social partners. It may have been a deliberate decision to introduce the regulation using its own MPs—as with some previously adopted controversial acts—to offer the government impunity.

Recently, a group of opposition MPs submitted a bill, which proposed to revise the act by removing the articles related to the council. The bill was remitted for its first reading in the relevant commission of the Sejm.

The PiS demonstrated that, within a couple of days, it was able to neuter social dialogue in Poland. While hoping that the Constitutional Tribunal will remove the regulations on the council or a corrective bill will be approved by the parliament, the social partners, in Poland and in Europe, need to remain vigilant. The Covid-19 crisis is just the beginning—and we can expect more attacks on social-partner autonomy.