The right to exemption from the obligation to perform work by a member of the management board of a company organization results from art. 31 of the Act of 23 May 1991 on trade unions (Journal of Laws of 2019, item 263) – hereinafter referred to as the Act on Trade Union, whereby the implementing act is the Regulation of the Council of Ministers of 27 November 2018 on the procedure for granting and using the exemption from the obligation to perform work for the term of office in the management board of the company trade union organization entitled to a person performing work  earnings, the method of determining the amount of remuneration or cash benefit due to a person during the period of dismissal from work and the resulting rights and benefits (Journal of Laws of 2018, item 232).

Exemption from the obligation to perform work for the period of performing the function of a member of the management board of a company trade union organization does not result in the release of such an employee from all obligations related to remaining in an employment relationship. It only results in exemption from the obligation of readiness to perform work during the period of this dismissal. Despite the exemption from the obligation to work, the employment relationship continues. In connection with the election of an employee to the management board of the company trade union organization, there is a temporary modification of the relationship between the employee and the employer due to the change in the type of work on the part of the employee. The posted employee does not perform work covered by the scope of his previous duties, but performs duties with the employer in the field of broadly understood protection of employees’ rights and interests, their representation in disputes with the employer, compliance with labor law. For this reason, the period of posting should be treated as a period actually worked for the employer, as it is not a suspension of the rights and obligations of the parties. This view was confirmed by the Supreme Court in its resolution of 13 December 2005 (file no. II PZP 9/05).

A special situation applies to employees appointed to perform a trade union function outside the workplace. Pursuant to Article 25(1) of the Act, an employee appointed to perform an elected trade union function outside the workplace is entitled, at the request of the trade union organisation, to unpaid leave for the period of performing tasks related to the election.

Thus, an employee delegated to the management board of a company trade union organization still remains an employee employed by his employer, does not stay on unpaid leave, and thus acquires the right to annual leave and can use leave, both overdue and current. Leave is granted by the employer, not the management of the company’s trade union organization, because the posted employee has an employment relationship with the employer and not with the trade union.

For this reason, the employer should therefore include every employee, including those seconded to the management of the company’s trade union organisation, in the leave plan. Unless, pursuant to Article 163 § 11 of the Labour Code, the company trade union organisation has given its consent and the employer does not establish a leave plan. In this case, the employer sets the date of leave after agreement with the employee. This applies to both full-time and part-time posted workers.

Source: https://kadry.infor.pl/kadry/zbiorowe_prawo_pracy/zwiazki_zawodowe/5456426,Urlop-wypoczynkowy-czlonka-zarzadu-zwiazku-zawodowego.html

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