The content of the Act of 19 December 2008 on the compensation procedure at entities of special importance for the Polish shipbuilding industry
Import a file
What kind of assistance can the shipyards’ workers expect? Information Bulletin concerning the protection of the workers’ rights
Import a file
What does the shipyard Act regulate?
On January 6, 2009 the Act of 19 December 2008 on compensation procedure at entities of special importance for the Polish shipbuilding industry entered into force. The entering into force of the Act protects the shipyards against bankruptcy, launches the process of selling off the shipyards’ assets, gives guarantees as to the satisfying the creditors and introduces o protection package for the shipyards workers.
Dramatic situation, in which the marine production shipyards have found themselves at the end of the present decade, is a result of both the objective factors related to the processes on-going in the world economy, as well as the many years’ standing negligence, abandons, and wrong decisions of the consecutive governing equips. The Polish authorities consequently disregarded the warnings and objections of the European Commission, which already in 2005 informed about the launching of the explanatory procedure on the state aid granted to the Stocznia Szczecińska Nowa, Stocznia Gdynia and Stocznia Gdańsk. Lack of reaction to these warnings, reluctance to privatization, and also to repeated several times in 2006 and 2007 critical evaluation of the sector restructuring programmes, resulted in the Commission recognition of the aid granted to the shipyards out of public measures, as being illegal.
Negotiations undertaken immediately after the taking over the rule by the Donald Tusk government enabled the adoption of the compromise solution – The European Commission agreed on the selling of the shipyard assets, without ordering the immediate refund of the unauthorized state aid. The effect of this compromise is the enacted at the initiative of the Ministry of State Treasury the Act on compensation procedure at entities of special importance for the Polish shipbuilding industry.
The Act concerning the Stocznia Gdynia S.A., and the Stocznia Szczecińska „Nowa” Sp. z o.o. was enacted in an express pace (second reading and voting in the Parliament took place on December 19, 2008, the president signed this Act on December 24, and on December 29 it was presented in the Official Journal) and entered into force on January 6, 2009. The high speed of proceedings was a result of the time limits, which the European Commission imposed on Poland; the selling of the shipyards assets process has to be finalised on May 31, 2009. After that date the EC expects from the shipyards the return of state aid. The compensation process was launched by the President of the Industrial Development Agency and shall be carried on by the Compensation Administrator. The supervision over the course of process is exercised by the minister of the State Treasury.
The new provisions, agreed upon with the European Commission and the trade unions, as well as with other social partners:
▪ enable the selling of the shipyards property component, this includes the organized parts of production,
▪ guarantee the satisfying of the creditors’ claims and establish the principles of satisfying those claims,
▪ enable to maintain the jobs up to May 31, 2009, and for the shipyard’s workers who would undertake a decision of resigning their posts and to find a new job, they introduce the protection programmes.
The first step starting the compensation process was the presentation by the management boards of Szczecin and Gdynia shipyards of a motion concerning the launching the compensation procedure, it took place on January 6, 2006. On January 7, 2009 after the analysing and verification of the motions, the President of the IDA signed a decision on the launching of compensation procedure.
At the date of presenting the motions for individual shipyards, the Temporary Compensation Supervisor was appointed. The person appointed was Mr. Roman Nojszewski, President of the Management Board of the PCOK Sp. z o.o., who had entitlements required by the Act. The Temporary Supervisor’s task is to prepare a description of the economic situation of the shipyard, identification of the assets’ components being subject to sale, as well as establishing their value and establishing the necessary actions aimed at the protection of the workers’ rights.
The Temporary Supervisor shall act until the election of the Compensation Supervisor by the Assembly of Creditors (for Gdynia Shipyard - January 20, 2009, for Szczecin Shipyard Nowa – January 21, 2009), his tasks shall be in particular the management of assets, preparation and the performance of shipyard’s assets sales plans through public tenders, as well as the establishing of lists of liabilities, as well as satisfying the Shipyard’s creditors on principles analogical to those established in the provisions concerning the bankruptcy and rehabilitation proceedings.
Protection of the workers
Since the moment of submitting the motion for launching the compensation procedure until the sales of the shipyard’s assets, the workers keep the right to the current salary.
The workers of the shipyard and of subsidiaries thereof (provided they were employed by an employment contract before October 31, 2008) are sheltered by two protection programmes:
• Persons willing to resign from job may use a voluntary leaving programme, which envisages disbursements of compensations in amount of PLN 20 to 60 thousand free from income tax (depending on work experience). The compensation amount depends on the date of joining the voluntary leaving programme – the sooner, the compensation is higher.
• Persons actively searching for job shall be encompassed by the programme of dismissals under monitoring. The programme assumes inter alia individual counselling and professional training, job intermediation, economic counselling and co-financing for establishing and developing of someone’s own company. There is a possibility of using the programme during the current labour contract binding, or after the termination of a labour contract during a period of 6 months, anyhow not longer than on the moment of starting a new job or undertaking of business.
As of the active participation in the Programme of dismissals under monitoring, the participant shall be entitled to a benefit from the Labour Fund (counted as equivalent for vacation, but not higher than twice the minimal salary for work), paid after the termination of the labour contract.
The payment of compensations in the voluntary leaving programme does not exclude the participation in the programme of dismissals under monitoring.
The selling of shipyard’s assets divided into groups of property components in such a method, which makes them attractive for buyers doing business (i.e. keeping the usefulness for business utilisation under a technical and technological point of view) enables to take over the workers by a new owner, which shall decide to do so.
For the protection programme for the workers of both shipyards and the subsidiaries thereof, the government shall earmark the public measures from the Labour Fund, Fund of the Guaranteed Workers Benefits and the European Cohesion Fund. Out of those measures, there shall be financed compensations, salaries until the end of May 2009 and the payment of the outstanding pension contributions.
Liabilities
The Act establishes an order of satisfying the creditors’ claims from the sales of the shipyard’s assets, by analogy to that envisaged in the bankruptcy and rehabilitation law:
• creditors having securities established on the shipyard’s assets (for example mortgages) shall be satisfied with the amounts received from the sales of the burdened components of the assets,
• public and private creditors, who didn’t establish securities of their liabilities shall by satisfied in an order established for four categories of liabilities – on equal rights within each category. An obligation of repayment does not cover (on the contrary to the case of bankruptcy) the spending borne out of public measures for the performance of the workers’ rights protection. The basis of repayments shall be the lists of creditors prepared by the Compensation Administrator and finally approved by the Court. In accordance with the act, the time limit for submitting the liabilities shall be 1 month (30 calendar days) counted from the moment of appearance of the information concerning the launching of the compensatory procedure in the Monitor Sądowy i Gospodarczy (publication appeared on January 14, 2009).
The Council of Creditors and the Compensation administrator are appointed by the Initial Assembly of Creditors. The Assembly of Creditors of the Gdynia Shipyard, joint stock company shall be held on January 20, 2009, and the Assembly of Creditors of the Szczecin Shipyard Nowa, limited liability company, one day later, on January 21, 2009.
The selling of the shipyards assets
The management of the shipyard assets, as well as the preparation and performance of the assets sales plans shall be the task of the Compensation Administrator appointed by the Initial Assembly of Creditors.
The Act establishes a clear procedure of sales: public tenders shall be performed in open and unlimited method – in accordance with the procedure established by the President of the Industrial Development Agency, joint stock company, with taking into account the principle of assuring that the tenders be transparent, unconditional, non-discriminatory and of fair competition. In case the shipyard assets are not sold through tenders, the Administrator shall expose them to public auctions. The shipyard assets, since the moment of launching the compensation procedure, may be burdened neither with mortgage nor with pledge. The assets’ components being sold shall not be burdened with debts or in relation to them it will not be possible to claim a repayment of the earlier granted public aid.|
In case the shipyards’ assets aren’t sold by May 31, 2009, the Agency will have a possibility to turn to the European Commission with a motion to extend the time limit.