W dniu 30 listopada 2021 roku Wiceprzewodnicząca Komisji Krajowej OZZS „wBREw” Katarzyna Kosakowska wzięła udział w 10 Sesji Forum Grupy Roboczej ONZ nt. Praw Człowieka w Biznesie.
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The role of the National Trade Union of Self-Employed “wBREw” in developing HR DD
The self-employed as we define them are a diverse group. They include those who run their own business as entrepreneurs at their own responsibility and risk. Within this activity they provide work, usually in the form of services, for one or more entities. The second group includes all those who are not entrepreneurs, and provide work on the basis of a civil law contract, such as order, contract for the provision of services, under an agency agreement or contract for specific work.
Both are characterized by the fact that in performing their work they do not employ other persons, nor do they use someone else’s work on the basis of civil law contracts. For some of them, being self-employed is a choice, for others it is a compulsion.
In Poland since 2019 those who do not employ others may form trade unions. Although they have the formal capacity to form trade unions, in practice it is difficult to capture their common labor interest. However, the self-employed have few means of protecting their rights, the provisions of the Labor code do not apply to them, and their relations with service recipients are most often described as B2B – “business to business”. What is also important the self-employed always act alone, which on the one hand gives them independence, but on the other hand almost no protection. Formally they are “companies” but in fact they are employees.
These features significantly distinguish our members from micro-entrepreneurs. That is why we have created a separate category for them – the nano-entrepreneurs and why we recognize them as simple workers.
Perhaps this is also why, at least at first glance, the concept of the self-employed as members of a trade union seems to be an oxymoron. The fact is that self-employed, as we define them, are neither tycoons, nor companies, but work as every employee. This apparent paradox, however, is a consequence of paradoxical and anachronistic solutions specific for Polish labor law.
How should the group that you represent be treated when it comes to the UNGPs implementation – as duty bearers or as beneficiary? How should they be approached in the NAPs?
We established “wBREw” as a voluntary, independent and self-governing trade union which associates persons performing gainful employment, including in particular persons providing work for remuneration on a basis other than an employment relationship.
The Union may also include and accept other persons who have the right to associate in trade unions, in particular those who have retired, annuitants, persons receiving a pre-retirement allowance or pre-retirement benefit or those who temporarily remain unemployed due to job-seeking, as well as those who provide unpaid work as volunteers.
As I mentioned above not all of them are entrepreneurs (even nano entrepreneurs), some of them provide services on a basis of civil law contract.
In our opinion it does, however nano-enterprises, the „self-employed”, must be treated not as subjects of the obligations set out in the Guidelines, but as recipients, or rather beneficiaries, of the actions of those who benefit from their work, their entrepreneurship. It is their human rights that should be the subject of due diligence mentioned in the Guidelines.
Finally, and in our view most importantly, the self-employed should be given the opportunity to integrate more strongly, either by adapting the Trade Union Act to the realities of the labor market, or by catalyzing all grass-roots initiatives aimed at empowering this group of workers.
Fulfillment of this postulate, equipping nano enterprises with effective instruments of protection of their rights, will require careful implementation of the Guidelines and possibly the Directive into the national legal order.
It will be necessary to take into account not only the specific nature of the Polish labor market, especially the significant share of the self-employed, but also their needs and, most importantly, their rights.
Agreeing on the scope of human rights due diligence for significantly diversified groups of rights-holders on the one hand, but also duty-bearers on the other, will require non-standard procedures. A deliberative dialogue will be necessary, leading to adequate legislative solutions. Simple implementation, direct transposition of the Guidelines into the Polish legal system seems to be impossible and certainly contradictory to the purpose of this document. Ignoring the specificity of this group of companies will lead to their exclusion from the protection provided by the Guidelines.