The return of trade union membership fees is closely connected with the issues of personal data protection, because it concerns rights and responsibilities in the field of industrial relations. This field includes, in the wider sense, the relations between the employer and the respective trade union, the relations between the employer and the employee as a member of this union as well as the mutual relationship of the trade union and its individual members.
Under Article 4, Para.2 of the Act No. 1/1992 Coll. on Wages, Availability Payments1 and Average Earnings, as amended (hereinafter referred to as "Wages Act"), the term "wage" applies to monetary payments or payments of monetary value (compensation in kind) received by the employee from the employer in return for work. Similar provision can be found in Article 3 of the Act No. 143/1992 Coll. on Salaries and Availability Payments in State-financed Organisations and Certain Other Organisations and Bodies (hereinafter referred to as "Salaries Act") under which law the employee is entitled to a salary for his or her work, the term "salary" referring to monetary payments received by the employee from the employer in return for work. A wage or a salary is therefore owned by the employee who has the right to dispose of it in the same way he or she disposes of other parts of his or her property.
Consequently, the basic pre-condition for wage or salary deductions made in accordance with the existing legislation is the consent of the employee which must be given in the form of a written agreement on payroll deductions.
A separate question is whether, in connection with the TU membership fees return, the employer would process sensitive personal data concerning trade union membership, and what rights and responsibilities the employer would have in such a position, particularly as regards the possible application of Article 9 of the Personal Data Protection Act.
Unless the authorisation to process sensitive personal data is granted by a special Act or unless at least one of the conditions stated in Article 9, letter b) and c) of the Personal Data Protection Act is fulfilled, the employer may process the sensitive personal data on trade union membership only in those cases where the subject of data has given the employer explicit written consent which conforms to all requirements of Article 9, letter a) of the Personal Data Protection Act. In relation to the personal data of the employees, the employer is always in the position of an administrator.
To implement the agreement on payroll deductions it is not necessary to process sensitive personal data, namely the data on trade union membership. The employer only has to process the information that a particular employee submitted to the respective department of the employer a duly concluded agreement on payroll deductions in which he or she gives consent to these deductions and states the amount to be deducted and the account to which the sum should be transferred. This consent must be expressed by the employee in a legally relevant form, in accordance with the provisions of Article 12, Para. 1 of the Wages Act, Article 18, Para.1 of the Salaries Act and Article 121 of the Labour Code. To bring into effect such duly concluded agreement on payroll deductions, the employer needs to process no further personal data about the employee except for the data already processed in connection with the keeping of employees' individual files, and, naturally, the information that the employee has concluded the agreement on payroll deductions, that he or she gives consent to the deductions, the amount deducted and the account to which the deducted amount should be transferred. If from this individual agreement the employer gains knowledge of sensitive personal data on employee's membership in trade unions, this knowledge is usually not processed further and it is not used in any systematic operations. The processing of "regular" personal data - including also payroll deductions - does not require a special consent of the subjects of data under the Personal Data Protection Act, because it is the processing referred to in Article 5, Para.2, letter a) or b) of the Personal Data Protection Act - the employer performs the duties imposed by special Acts or the duties ensuing from the contractual relationship between the employer and the employee. The consent of the employee would be evident from the submitted agreement on payroll deductions. As regards notification duty under Article 16 of the Personal Data Protection Act, the implementation of an agreement on payroll deductions does not oblige the employer to fulfil this duty with regard to the Office for Personal Data Protection for the purpose of registration of authorised cases of personal data processing. In accordance with the amended provision of Article 18, letter b) of the Personal Data Protection Act, in implementing the agreement on payroll deductions the employer processes the necessary personal data on the employee in connection with the fulfilment of duties stipulated by law or the relevant data are necessary for the exercise of rights stipulated by special Acts.
In implementing the agreement on payroll deductions, the employer does not need to process the sensitive personal data on trade union membership. Unless the implementation of the payroll deductions agreement will result in (systematic) processing of the sensitive personal data on trade union membership, it is not even necessary to fulfil the notification duty under Article 16 of the Personal Data Protection Act.
The Office for Personal Data Protection assumes this position particularly with regard to the duty of the administrator, stipulated in Article 5, Para.1, letter d) of the Personal Data Protection Act, to gather only such personal data as correspond to the stated purpose and only to such extent as is necessary for the fulfilment of this purpose. Moreover, the aforementioned procedure is suitable, because the account number and the amount to be deducted do not necessarily identify membership in a trade union or in another social organisation. The conclusion of a payroll deductions agreement may be motivated also by the need to pay for legal or educational services or by a mere inclination to and support of the trade union on part of the employee.
1 Payments for the employee's willingness to be available for work if needed.
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