Harmonization of Polish Labour Code with European directives
The Polish Labour Code will be amended soon
The Polish Labour Code has already been amended several times to comply with European labour law. Not all provisions of directives, however, have been implemented. As Poland will join the EU within a few months, the Polish Parliament is working on the next amendments (the Sejm considered the Senate's corrections on November 14), the purpose of which is to fully adjust the Polish Labour Code to the provisions of European labour law.
The amendments will bring the Polish Labour Code into line with many Directives, including in particular:
• the Directive concerning certain aspects of the organization of working time (93/104/EC);
• the Directive on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (91/533/EEC);
• the Directive on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (76/207/EEC);
• the Directive on establishing a general framework for equal treatment in employment and occupation (2000/78/EC);
• the Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (2000/43/EC); and
• the Directive on the introduction of measures to encourage improvements in the safety and health of workers at work (89/391/EEC).
The amendments to the Polish Labour Code include, in particular:
• the extension of the already applicable ban on discrimination. Under the amended Polish Labour Code, any discrimination will be prohibited with respect to sex, age, disability, race, religion, nationality, political convictions, membership in associations, ethnic origin, beliefs, sexual orientation or employment for a definite or indefinite period or upon full or part-time basis;
• the obligation of the employer to provide an employee with certain information, such as the information on the number of days of paid annual vacation to which the employee is entitled, the length of termination notice periods, terms and conditions of bargaining agreements governing the employee's work conditions;
• the minimum vacation leave will be 20 days (currently it's 18 days);
• the first day of sick leave will once again be paid, irrespective of the length of the sick leave. In practice, the currently applied solution of the unpaid first day of sick leave if the sick leave is not longer than 6 days has resulted in longer absences and, consequently, has appeared to be more expensive for the employers;
• the third subsequent employment agreement for a definite period will be deemed as executed for an indefinite period, provided that the span of time between the termination and execution of successive agreements does not exceed one month.
The amendment of agreements for a definite period has also been limited through the introduction of a regulation that any arrangements, with respect to extension of the employment made during the term of an agreement for an indefinite period, will be deemed an execution of another employment agreement;
• anti-mobbing regulations. At present, it is not mandatory to implement anti-mobbing regulations since no binding directive exists in this respect (such a directive is being drafted currently); so far only two Member States (France and Belgium) have implemented such regulations. According to many experts in the present situation, the implementation of anti-mobbing regulations would be premature.
Most of the amendments will be in force as of January 1, 2004. However, some of them will enter into force as of Poland's accession to the EU.
Seconded/posted workers
The amended Polish Labour Code will also regulate the posted workers issue.
The rights granted to employees are different in individual Member States; for example, the minimum salary in Greece is different than in the UK. If an employer's country grants to employees rights that are less favourable than the country where the work is to be performed, the employer may tend to engage a posted worker on these less favourable terms and conditions. In extreme cases this may lead to social dumping. In order to avoid such situations, the EU authorities decided to implement the Directive concerning the posting of workers in the framework of the provision of services (96/71/EC).
The Directive relates to Article 3.1 (c) of the Treaty establishing the European Community, which states that the abolition of obstacles to the free movement of persons and services constitutes one of the objectives of the Community.
Under the new provisions of the Polish Labour Code (intended to be in force as of Poland's accession to the EU), an employer that posts its employee to Poland for a definite period of time is obliged to guarantee posted workers terms and conditions of employment not less favourable than those resulting from Polish labour law. The above covers in particular: Maximum work periods and minimum rest periods; minimum paid annual holidays; the minimum rate of pay, including overtime rates; health and safety at work; protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth; equality of treatment of men and women and other provisions on non-discrimination. This obligation is applicable in the case of posting workers to a Polish branch of an employer, or in the case of posting an employee in connection with the execution of an agreement between the employer and a foreign entity. It applies also in the case of postings made by a temporary employment agency.
Many judgements of the European Court of Justice ("ECJ") regarded the issue of posting employers. One of the major ECJ judgements in this respect is Finalarte Sociedade (C-49/98, C-70/98, C-71-98 and others), which elaborates on many aspects of posted workers' holidays. In particular, pursuant to the judgement, the provisions of Articles 59 and 60 of the Treaty (currently Articles 49 and 50) do not prohibit paid holidays for the posted workers longer than what is set forth in Directive 93/104 concerning certain aspects of the organization of working time. In accordance with the above judgement, the paid holiday regulations applicable in the host country apply to posted workers if the labour provisions of their home country lack similar protection; the application of such regulations must be in proportion to the public interest which they are supposed to protect (such public interest is deemed to be the need to protect employees).
Arkadiusz Szulepa, legal advisor, senior associate in Domański Zakrzewski Palinka Law Office
The Polish Labour Code has already been amended several times to comply with European labour law. Not all provisions of directives, however, have been implemented. As Poland will join the EU within a few months, the Polish Parliament is working on the next amendments (the Sejm considered the Senate's corrections on November 14), the purpose of which is to fully adjust the Polish Labour Code to the provisions of European labour law.
The amendments will bring the Polish Labour Code into line with many Directives, including in particular:
• the Directive concerning certain aspects of the organization of working time (93/104/EC);
• the Directive on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (91/533/EEC);
• the Directive on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (76/207/EEC);
• the Directive on establishing a general framework for equal treatment in employment and occupation (2000/78/EC);
• the Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (2000/43/EC); and
• the Directive on the introduction of measures to encourage improvements in the safety and health of workers at work (89/391/EEC).
The amendments to the Polish Labour Code include, in particular:
• the extension of the already applicable ban on discrimination. Under the amended Polish Labour Code, any discrimination will be prohibited with respect to sex, age, disability, race, religion, nationality, political convictions, membership in associations, ethnic origin, beliefs, sexual orientation or employment for a definite or indefinite period or upon full or part-time basis;
• the obligation of the employer to provide an employee with certain information, such as the information on the number of days of paid annual vacation to which the employee is entitled, the length of termination notice periods, terms and conditions of bargaining agreements governing the employee's work conditions;
• the minimum vacation leave will be 20 days (currently it's 18 days);
• the first day of sick leave will once again be paid, irrespective of the length of the sick leave. In practice, the currently applied solution of the unpaid first day of sick leave if the sick leave is not longer than 6 days has resulted in longer absences and, consequently, has appeared to be more expensive for the employers;
• the third subsequent employment agreement for a definite period will be deemed as executed for an indefinite period, provided that the span of time between the termination and execution of successive agreements does not exceed one month.
The amendment of agreements for a definite period has also been limited through the introduction of a regulation that any arrangements, with respect to extension of the employment made during the term of an agreement for an indefinite period, will be deemed an execution of another employment agreement;
• anti-mobbing regulations. At present, it is not mandatory to implement anti-mobbing regulations since no binding directive exists in this respect (such a directive is being drafted currently); so far only two Member States (France and Belgium) have implemented such regulations. According to many experts in the present situation, the implementation of anti-mobbing regulations would be premature.
Most of the amendments will be in force as of January 1, 2004. However, some of them will enter into force as of Poland's accession to the EU.
Seconded/posted workers
The amended Polish Labour Code will also regulate the posted workers issue.
The rights granted to employees are different in individual Member States; for example, the minimum salary in Greece is different than in the UK. If an employer's country grants to employees rights that are less favourable than the country where the work is to be performed, the employer may tend to engage a posted worker on these less favourable terms and conditions. In extreme cases this may lead to social dumping. In order to avoid such situations, the EU authorities decided to implement the Directive concerning the posting of workers in the framework of the provision of services (96/71/EC).
The Directive relates to Article 3.1 (c) of the Treaty establishing the European Community, which states that the abolition of obstacles to the free movement of persons and services constitutes one of the objectives of the Community.
Under the new provisions of the Polish Labour Code (intended to be in force as of Poland's accession to the EU), an employer that posts its employee to Poland for a definite period of time is obliged to guarantee posted workers terms and conditions of employment not less favourable than those resulting from Polish labour law. The above covers in particular: Maximum work periods and minimum rest periods; minimum paid annual holidays; the minimum rate of pay, including overtime rates; health and safety at work; protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth; equality of treatment of men and women and other provisions on non-discrimination. This obligation is applicable in the case of posting workers to a Polish branch of an employer, or in the case of posting an employee in connection with the execution of an agreement between the employer and a foreign entity. It applies also in the case of postings made by a temporary employment agency.
Many judgements of the European Court of Justice ("ECJ") regarded the issue of posting employers. One of the major ECJ judgements in this respect is Finalarte Sociedade (C-49/98, C-70/98, C-71-98 and others), which elaborates on many aspects of posted workers' holidays. In particular, pursuant to the judgement, the provisions of Articles 59 and 60 of the Treaty (currently Articles 49 and 50) do not prohibit paid holidays for the posted workers longer than what is set forth in Directive 93/104 concerning certain aspects of the organization of working time. In accordance with the above judgement, the paid holiday regulations applicable in the host country apply to posted workers if the labour provisions of their home country lack similar protection; the application of such regulations must be in proportion to the public interest which they are supposed to protect (such public interest is deemed to be the need to protect employees).
Arkadiusz Szulepa, legal advisor, senior associate in Domański Zakrzewski Palinka Law Office
