Obligations to agree and consult trade unions under the draft Polish Pay Transparency Act

Marcin Wujczyk
Wardyński & Partners, Krakow
marcin.wujczyk@wardynski.com.pl

Przemysław Zając
Wardyński & Partners, Krakow
przemyslaw.zajac@wardynski.com.pl

Introduction

The draft act regulates the implementation into Polish law of the EU Pay Transparency Directive of the European Parliament and of the Council of 10 May 2023 on strengthening the application of the principle of equal pay for men and women for equal work or work of equal value through pay transparency and enforcement mechanisms. The draft, dated 12 December 2025, constitutes one of the most significant legislative challenges in Polish employment law in recent years.

Its provisions go significantly beyond the current information obligations imposed on employers and introduce an extensive system of employee participation, engaging trade unions at virtually every key stage of the implementation of the new obligations. This participation takes two fundamentally different legal forms: agreement and consultation.

Agreement and consultation – a fundamental distinction in Polish labour law

The distinction between the procedure of agreement and the procedure of consultation has fundamental practical significance in Polish employment law, although the draft act – like many other statutes in the field of collective employment law – does not contain legal definitions of these terms.

Agreement requires the employer to obtain the consent of the workplace trade union organisation (or organisations) with respect to a given solution. The employer cannot act unilaterally: without reaching agreement with the employee side, the action would be legally defective. Agreement therefore represents the strongest mechanism of employee participation in Polish employment law, as it requires the parties to reach a consensus.

Consultation, on the other hand, obliges the employer to hear the views of the employee side and take them into consideration, but does not bind the employer to follow the opinion expressed by the trade union organisations. After the consultation process has been conducted, the employer may adopt a decision which differs from the position presented by the trade unions. The obligation to consult is therefore essentially procedural: its breach may result in liability, but the position of the trade unions does not determine the employer’s final decision.

The draft act uses both mechanisms, assigning them different functions at particular stages of the implementation of the obligations arising from the act.

Job evaluation – agreement on criteria and consultation on employee categories

Under the draft act, employers are required to assess the value of work performed in particular jobs or positions. This evaluation is based on the criteria and sub-criteria referred to in Article 183c section 3 of the Polish Labour Code. Already at this preliminary but crucial stage, the draft act introduces an employee participation mechanism using the strongest available procedure – agreement.

Where a workplace trade union organisation operates at the employer, the employer must determine the criteria and sub-criteria in agreement with that organisation. If more than one trade union organisation operates at the workplace, the criteria must be agreed jointly with those organisations. As a result, the employer cannot unilaterally impose job evaluation criteria. This solution has far-reaching consequences, as the adopted criteria will determine the entire subsequent process of categorising employees and preparing pay gap reports.

If it is not possible to determine the criteria and sub-criteria in agreement with all workplace trade union organisations, the employer establishes them in agreement with representative trade union organisations within the meaning of Article 25(1) or (2) of the Polish Trade Unions Act, each of which must represent at least five per cent of the employees employed by the employer. This provision – modelled on mechanisms already known from Polish collective labour law – introduces a way of overcoming negotiation deadlocks in multi-union environments, while still maintaining the requirement of agreement with representative unions rather than allowing a unilateral decision by the employer.

A different mechanism applies to the determination of employee categories. If a workplace trade union organisation operates at the employer, the employer determines employee categories after consultation with that organisation. If more than one trade union organisation operates at the employer, consultations must be conducted with all of them. The consultation period must last at least five days and no longer than 15 days from the date on which the employer presents the proposed categorisation of employees. The introduction of statutory time limits ensures that the employer has certainty as to the maximum duration of the consultation process, which is important for planning its implementation.

The combination of both mechanisms at the same procedural stage is deliberate. Job evaluation criteria, which require agreement, have a methodological character and determine the approach to assessing the entire remuneration structure. By contrast, employee categorisation – subject only to consultation – is a subsequent step in which the employer retains greater decision-making autonomy.

Pay gap reporting – consultation and access to methodology

Employers employing at least 100 employees will be required to prepare a report on the gender pay gap between female and male employees.

If a workplace trade union organisation operates at the employer, the employer confirms the reliability of the information contained in the pay gap report after consultation with that organisation. If several workplace trade union organisations operate at the employer, the consultation must be conducted with all of them. This obligation is significant because the reliability of the report becomes subject to a joint verification process, even though it takes place in the form of consultation rather than agreement.

A key supervisory instrument at this stage is the right of access to the methodology used to prepare the report. The employer must provide the workplace trade union organisation – or organisations – with access to the methodology applied in preparing the pay gap report. This allows the unions to verify whether the data presented in the report has been calculated in a reliable manner and in compliance with the statutory requirements.

By 31 March of each year, the employer must provide information on the pay gap broken down by employee categories to employees and to the workplace trade union organisation, or – where more than one organisation operates – to all such organisations.

Joint pay assessment – consultation with elements similar to agreement

The most complicated and practically significant participation mechanism introduced by the draft act is the institution of a joint pay assessment.

An employer must conduct a joint pay assessment when three conditions are cumulatively met: the pay gap report shows a gender pay gap of at least five per cent in any employee category; the employer has not justified that gap based on objective, gender-neutral criteria; and the employer has not taken effective remedial measures within six months from the date the report was communicated.

The employer verifies the circumstances relating to the justification of the pay gap and the lack of effective remedial measures and conducts the joint pay assessment in consultation with the trade union or organisations operating at the workplace.

Although the procedure is formally defined as consultation, the draft act introduces a special system of presumptions which gives the employee side a degree of influence resembling a right to veto. It is presumed that the employer has not justified the pay gap if the employer has not presented the employee side with a justification based on objective, gender-neutral criteria or if the employer and the employee side have not agreed that the pay gap is justified. Similarly, it is presumed that the employer has not taken effective remedial measures if there is no agreement between the employer and the employee side on this issue.

Where more than one workplace trade union operates at the employer, the absence of agreement is deemed to exist if either all workplace trade unions or all representative organisations meeting the statutory representativeness threshold declare that such agreement does not exist. This provision is particularly relevant in multi-union environments: challenging the employer’s actions requires either unanimity among all unions or a joint position of all representative unions.

The employer must provide information on the joint pay assessment to employees and to the workplace trade union organisations – or, if none operate at the employer, to employee representatives elected by the workforce – within 14 days of the completion of the assessment.

The employer must then implement the measures resulting from the joint pay assessment in consultation with the trade union organisations or, in the absence of trade unions, with employee representatives elected by the workforce. The employer must take effective remedial action within no more than eight months from the date on which the information on the joint pay assessment was communicated.

Sanctions

Under the draft act, an employer or a person acting on the employer’s behalf who fails to conduct the joint pay assessment in accordance with the statutory requirements will be subject to a fine ranging from PLN 3,000 to PLN 50,000 (approximately €700 to €11,800).

This misdemeanour liability serves as an additional incentive to comply with the statutory obligations, complementing civil liability towards employees. A person whose rights relating to the principle of equal treatment in employment have been violated by the employer is entitled to compensation or damages in an amount not lower than the statutory minimum wage.

Conclusion

The draft act establishes a complex, multi-level system of obligations towards employee representatives based on two fundamentally different legal instruments. The agreement procedure – requiring the consent of the employee side – is applied at the key methodological stage, namely the determination of job evaluation criteria and sub-criteria. The consultation procedure – non-binding for the employer – is applied to employee categorisation, confirmation of the reliability of pay gap reports, the conduct of joint pay assessments and the implementation of remedial measures.

However, at the stage of the joint pay assessment the draft act introduces a system of presumptions based on the absence of agreement with the employee side, which effectively grants trade union organisations a degree of influence exceeding that normally associated with consultation.

Although neither the final content nor the date the proposed provisions will come into force is yet known – since the draft represents the first legislative proposal – employers should begin preparing for the new obligations. As Poland is required to implement the Pay Transparency Directive, the question is not whether the legislation will be adopted, but when it will ultimately be enacted by the Polish parliament and incorporated into national law.