The year 2019 saw an abundance of labour law novelties, including amendments to the Code of Civil Procedure, the Act on Trade Unions and the Labour Code. To welcome 2020, this article summarises the biggest changes that employers and employees faced in 2019.
The National Labour Inspectorate (PIP) oversees the practice of foreign employers posting employees to Poland as part of the provision of services. PIP inspections show that many foreign employers are unaware of the obligations imposed on them by Polish law, which can lead to fines of Zl1,000 to Zl30,000. Thus, foreign employers posting employees to Poland must understand their obligations, particularly with regard to working time and health and safety issues.
The Act of 4 July 2019 – which amended the Code of Civil Procedure and other acts, including Poland's labour and social security law – has received significant attention. Among other things, these amendments have introduced pre-trial proceedings and permit the courts to order employers to continue to employ a worker until proceedings are concluded, not only if termination of employment is considered ineffective, but also when the worker has been reinstated in their job.
A number of significant changes to Polish labour law have been announced in recent months. This article examines these amendments in detail, including changes to the Labour Code, remuneration for vocational training and apprenticeships, an increase in the minimum wage rate, the abolition of limits on retirement and disability insurance contributions and changes to social benefit fund contributions.
Social security contributions in Poland are significant, particularly in the case of highly paid managers. As a result, it is common practice for managers to perform their duties as self-employed persons under management contracts. A recent Supreme Court decision confirmed that management contracts can still be performed by self-employed managers and that such business activity constitutes a basis for social security insurance if the manager is not a management board member.
The Supreme Court recently ruled that an employer can demand that an employee inform it of any additional activities that he or she undertakes during the employment period. If the employee fails to do so, this can justify his or her employment contract being terminated upon notice. The judgment confirms the court's existing position in this regard. However, the court's second conclusion concerning data protection is new and may raise doubts regarding its compliance with the Labour Code.
The Act Amending the Act on the Employment of Temporary Workers and Certain Other Acts recently entered into force. It introduces important changes and limitations concerning temporary work and aims to improve the temporary work market and counteract abusive practices. The amendment concerns all employers that hire temporary workers.
In a recent judgment concerning an employment agreement concluded with a pregnant woman, the Supreme Court stated that the actual and real performance of an employment relationship is decisive for determining whether the parties actually concluded an employment contract. Entitling a document 'employment agreement' and having it signed by the parties does not determine its legal status – rather, it is crucial that work is performed on the basis provided for in the employment contract.
The Supreme Court recently decided that bringing a claim against an employer for the unlawful termination of an employment contract pursuant to Article 45(1) of the Labour Code is not a prerequisite to obtaining an award of damages pursuant to Article 18(3d) of the code. The decision fundamentally changes the risks associated with serving a termination notice and terminating an employment contract and enables employees to make claims long after their employment has been terminated.
The Supreme Court recently ruled that an employee's breach of the obligation to obey an employer's instructions constitutes a violation of the employer's intangible interests. The court explained that irrespective of the working time system in which an employee is employed, he or she is bound by an employer's instructions concerning work, unless they are against the law.
The Ministry of Finance recently issued a general interpretation of the Personal Income Tax Act 1991 provisions regarding the tax exemption applicable to employee compensation received under voluntary redundancy programmes. The interpretation introduces a new approach to the taxation of voluntary redundancy benefits and will likely lead to the unification of the tax administration's practice in this respect.
The Act on Posting Employees within the Framework of the Provision of Services recently entered into force, guaranteeing an appropriate level of protection for posted employees. In particular, the act determines the terms and conditions of employment, as well as the principles of administrative cooperation between Polish authorities and EU member states. The act also introduces obligations for foreign employers that post employees to Poland.
The Supreme Court recently ruled that an employee was entitled to damages for unlawful termination of employment with notice not exceeding the salary of his statutory notice period, even though it had been contractually extended by the parties. This provision does not apply if the parties to the contract have agreed that an extended notice period be included when calculating damages for unlawful termination.
The recent amendments to the Labour Code made long-expected changes regarding fixed-term employment contracts. The amendments aim to eliminate the abuse of fixed-term contracts by employers. As the interim regulations are still relatively ambiguous, employers should carefully examine each case alongside the provisions of the Labour Code, which may govern the particular situation differently from the newly introduced provisions.
The Supreme Court recently ruled that a management contract rather than employment status is the legal basis for calculating social security contributions for managers who are registered as self-employed and have management contracts with a company in which they are board members. The decision establishes a legal principle under which members of management boards cannot enjoy the favourable social security benefits available to self-employed persons.
The Constitutional Tribunal recently ruled that Article 2(1) of the Trade Unions Act – which grants the right to establish and join a trade union to employees only and not to other persons performing paid work – was unconstitutional. The judgment does not mean that this section of the act has lost its binding force, but it should result in its immediate modification.
In a recent judgment the Supreme Court ruled that in order to assess whether a subsidiary had breached the principle of equal treatment in employment, the circumstances of its employees could be compared to those of employees of its parent company. The judgment also confirmed the court's position on the difference between unequal treatment and discrimination in employment.
The European Court of Justice recently ruled that the Labour Code provision regarding notice periods applicable to fixed-term employment contracts infringed the requirement to treat fixed-term employees as favourably as permanent employees if their working conditions are comparable. The cabinet recently presented a bill that proposes to eliminate the Labour Code's discriminatory provisions.
The Ministry of Labour and Social Policy has recently acknowledged the need to amend the temporary agency regime. If the envisaged changes are adopted, they will significantly influence the temporary employment agency market. Work agencies will no longer be able to assign the same temporary employee to one user-undertaking over many years by juggling the employee between themselves.
The Supreme Court recently confirmed that it is possible to terminate a post-employment non-compete agreement with notice on condition that the agreement includes prerequisites for such termination. The rules under which a post-employment non-compete agreement can be concluded are set out in the Labour Code.