News - Poland

Poland - January 2013

Employment Law Update

Labor Code – draft amendment aiming at more flexible working time

Works are in progress on the government draft amendment to the Labor Code concerning working time matters. The purpose of the bill is to make the organization of working time more flexible. It is proposed to extend admissible settlement periods up to 12 months (in the basic working time system) and up to 4 months (in the compensatory working time system). It is further intended to regulate in the Labor Code the principles of application of the so called flextime work schedule, namely, the employer would be granted a possibility to determine: (i) different hours of work of an employee on particular days of a week, and/or (ii) a certain period each day within which an employee would freely chose when to start work (to be then rendered work for a prescribed number of hours). It would allow the employee to start work on the next day at earlier hour than on the previous day without triggering employer's obligation to pay overtime benefits, subject however to the provisions regarding the minimum daily rest.

Supreme Court resolution – consequences of a trade union’s failure to provide information on the number of members

In reply to the Ombudsman's inquiry, in resolution of 20th December 2012 (III PZP 7/12) the Supreme Court stated as follows: "a company union organization's failure to provide the information referred to in Art. 251Sec. 2 of the Labor Unions Act does not trigger illegality of actions taken by an employer without the required cooperation with that organization until such information has been presented". No written rationale has been yet drawn up, however in the Supreme Court's oral justification, the Court invoked the provisions of the Trade Unions Act requiring a company union organization to provide the employer with quarterly information on the number of union members by the 10th day of the next month following the quarter to which the information pertains. According to the Court, if no such information is received by the employer, the latter has the right to assume that the union organization does not meet the statutory requirements, and that the obligation to cooperate with such organization is not applicable.

In the August Labor Law Newsletter we wrote about the precedent judgment of the Supreme Court (III PK 17/11) where the Supreme Court took the same stance as in the aforementioned resolution. Accordingly, the resolution confirms a change in the Supreme Court’s approach as to consequences – for the employer - of the labor union’s failure to provide information on the number of its members.

Supreme Court resolution – an employee’s time barred claims for damages for loss of the right to gratuitously acquire employee shares

Pursuant to Supreme Court resolution of 21st November 2012 (I PZP 1/12), adopted by 7 judges, a claim vis-à-vis an employer for damages for loss of the right to gratuitously acquire employee shares is time barred after three and not ten years. This judgment has required examination of a more extensive legal issue regarding statutes of limitation of employee claims granted to employees under legal acts which do not account for the provisions of the labor law (here: the Commercialization and Privatization Act). Since however three separate votes were given, the resolution makes room for different arguments.

Supreme Court judgment – a change in the social agreement with trade unions without the alternation notice

In the judgment of 6th September 2012 (II PK 29/12) the Supreme Court states that Art. 24113 Sec. 2 of the Labor Code, which provides for the employer’s obligation to individually alter work and pay conditions in case of a change in the collective bargaining agreement, does not apply per analogiam to social agreements with trade unions (employee benefits packages). The Supreme Court points out that the nature of social agreements, agreements regarding conditions of employment of employees in case of transfer of undertaking (Art. 261 of the Labor Unions Act), or agreements concluded within collective redundancy processes, is different from the nature of the collective bargaining agreements. The former agreements are aimed to flexibly respond to given situations while the collective bargaining agreements are to ensure stability of employment conditions which is guaranteed by the necessity to register the bargaining agreement, prior control of its compliance with the law, and also the necessity to apply the amending termination notice to any change thereof to the employee’s disadvantage. The aforementioned ruling materially limits the employer burdens in case of modification of social agreements, as pursuant to it, it is only required to reach an understanding with the union, and no individual actions towards the employees need to be taken.

For further information or to discuss any of the issues raised, please contact Jaroslaw Bieronski on +48 22 608 70 52 or mobile phone on +48 602 105 255.


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