Internal consultations as an element of implementing a whistleblower procedure

One of the issues worth discussing is the consultation procedure [1a]. According to law, the implementation of the procedure requires internal company consultations. In organisations where trade unions are established, the implementation of such procedure should be consulted with the trade union. If an organisation has no trade union, consultations should be held with representatives of employees of that organisation. 

This is an issue that enterprises have already had to contend with in the past, for example, during lockdowns caused by the coronavirus pandemic. Employers who wanted to introduce economic downtime or reduce working hours under the Covid Act had to conclude an agreement with employee representatives. Employers introducing Employee Capital Plans (ECP, or PPK in Polish) had to proceed in a similar way. 

The question therefore arises: can organisations where employee representatives have already been selected under the Labour Code or specific laws turn to those representatives to consult the implementation of the whistleblower procedure? 

Covid laws and ECP use the term “employee representatives”. The Whistleblower Bill uses the term "workers". Please note that if the legislator has introduced this differentiation within the same discipline of law – i.e. once the term “employee representatives” and once “worker representatives” – then, it stands to reason that the legislator means two different types of parties.

Thus, "employee representatives” is not the same as “worker representatives”. This is because workers include not only employees but also people hired based on civil-law contracts or B2B agreements. This means, in turn, that to consult the implementation of the whistleblower procedure, employers will have to hold elections of representatives from among all staff (irrespective of the type of contract). Supplementary elections where representatives from among people who are not company employees would be selected in addition to the representatives already elected also seem to be an admissible solution.

The question how to understand the term “staff consultations” is another source of doubt. More specifically: should a trade union or worker representatives consent to the implementation of the procedure within the organisation, and what to do, if such consent is not given.  The term “consultations” used by the legislator should be understood literally, i.e. the employer does not need any consent to the implementation of the whistleblower procedure. It is the employer’s obligation to implement one. Thus, the staff may not stop the employer from taking measures that might trigger the employer’s liability if they are not taken.