Labour Code amended again

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In October 2003, another set of changes to the Polish Labour Code were adopted by parliament - the latest in a series of rounds of amendments in recent years. The primary objective of the new amendments is further harmonisation of Polish labour legislation with the relevant EU law. The most important issues addressed include sick leave, fixed-term employment contracts, working time, annual and childcare leave, harassment, bullying and the employment of minors.

Poland’s pending accession to the European Union (in May 2004) has resulted in a continuing wave of legislative amendments which have been necessary in order to bring the country’s laws into line with EU law. The speed with which this legislative work is progressing has been the target of increasing criticism, particularly on the part of the legal profession. Lawyers have claimed that legislative chaos is arising in some areas of the law, necessitating constant corrections to hastily drafted regulations. This rush to effect legislative amendments has also extended to labour law. In 2003, the Labour Code has already been amended by a new Act on temporary agency work (PL0308103N), but now a new round of amendments has been adopted. On 14 October 2003, the upper house of parliament (Senat) approved (with some changes) a new Act amending the Labour Code drafted by the lower house (Sejm). The new measures cover sick pay, fixed-term employment contracts, working time (including overtime), annual and childcare leave, harassment, bullying ('mobbing'), the employment of minors, and occupational health and safety.

Latest Labour Code amendments

As regards sick pay, the latest amendments to the Labour Code reinstate pay for the first day of sick leave. Amendments to the Code made in 2002 ( PL0209107F) exempted employers from paying wages for the first day of sickness-related absence of seven days or less. The restoration of pay for the first day of sickness is justified in terms of an increase in sick leave and of longer sickness-related absences.

Another rule which had previously been deleted from the statute books and is now reinstated by the latest amendments is that whereby not more than two consecutive fixed-term employment contracts may be executed with the same employee, with the third such contract being regarded by the law as an indefinite employment contract. In this way, the legislature has retreated from its previous position allowing an indefinite number of fixed-term contracts.

The new round of amendments affirms most of the existing provisions relating to working time and to overtime, with minor adjustments, notably guaranteeing 11 hours of uninterrupted rest in each 24-hour period.

Some changes have been introduced concerning the duration of annual leave. Leave entitlements depend on the worker’s length of employment, and the changes are favourable to younger employees with 10 years' employment or less. The rules governing childcare leave have been greatly elaborated. Under the new provisions, employees benefiting from such leave may engage in gainful employment or in study provided that the attendant duties do not preclude personal care over their child.

The amendments add a number of anti-discrimination provisions to the Labour Code, particularly as regards harassment. Discrimination based on religious beliefs, ethnic origin or sexual preference, and with respect to fixed-term or open-ended or full- or part-time employment status is prohibited.

The revised Labour Code also addresses the problem of bullying ('mobbing'), an entirely new concept in the Polish law. Bullying is defined as 'persistent and sustained molesting or intimidation of the employee resulting in her/his reduced esteem of her/his vocational capabilities, causing or intended to cause humiliation or embarrassment of the employee and/or ostracism or elimination of the employee from her/his co-workers' (Article 94{3}).

Minors aged less than 16 may now be employed only for cultural or artistic projects or in sport and advertising. Minors may not be employed without the permission of their parents or guardians and also of the labour inspector.

The remaining changes to the Labour Code concern detailed health and safety at work provisions on the elimination of toxic substances (such as carcinogens) from the work environment. There are also new rules governing the employment of staff posted to work in Poland by employers based in EU Member States.

The latest amendments to the Labour Code will entail amendment of 11 other pieces of legislation, including the Acts regarding the State Labour Inspection (Państwowa Inspekcja Pracy, PIP) and regarding detailed principles governing termination of employment relationships on grounds not attaching to employees.

The most important amendments made to the Labour Code by the legislation adopted in October 2003 are set out in the table below.

The main October 2003 amendments to the Labour Code
Issue Previous regulations New regulations
Sick leave For sick leave of up to six days, the first day is unpaid; for leave exceeding seven days, all days are paid (Article 92.1{1}). All days of sick leave are paid (Article 92.1{1} repealed).
Discrimination Indirect discrimination defined in general terms and prohibited (Article 18{3a}. 3). No definition of direct discrimination, although it is likewise proscribed – discrimination due to gender, age, disability, race, nationality, beliefs (especially political or religious), and union membership (Article 11{3}). Direct and indirect discrimination both defined and prohibited in all their forms (Article 18{3a}.3 and 4). Employers are obligated to counteract discrimination in employment (Article 94 item 2b).
Prohibition of harassment No provisions. Harassment and sexual harassment defined and prohibited (Article 183a. 5 and 6).
Prohibition of bullying No provisions. Bullying defined and prohibited ( art 94{3}); employers are obligated to counteract bullying.
Employment for fixed periods of time Article 25{1}, under which a third consecutive fixed-term contract automatically becomes an indefinite-term contract, suspended until Poland’s accession to the EU. In effect, there is no limit on the number of successive fixed-term employment contracts reached with a single employee. Art. 25{1} reinstated, though it does not apply to fixed-term contracts to substitute for an employee absent on leave, for ad hoc/seasonal workers, or for purposes of cyclical work.
Employment contract No specific provisions as to form or contents (Article 29). Detailed provisions as to formal and substantive requirements (Article 29 is expanded).
Working time May not exceed eight hours in 24 or an average of 40 hours in a five-day working week within a reference period, which may not exceed four months, except in agriculture, husbandry and security work, where reference periods of up to six months are permitted (up to 12 months in special cases) (Article 129.1). In certain cases, working time in each 24-hour period may be extended to 12, 16, or even 24 hours. Interrupted working time permitted (with a five-hour break not included in working time and compensated at half the usual rate). Confirmation of previous provisions. Employees are entitled to 11 hours of uninterrupted rest in each 24-hour period (Article 132).
Overtime Overtime per employee may not exceed four hours in 24 hours and 150 hours per calendar year (Article 133.2). 150 hours of overtime per year permitted subject to a premium payment of 50% for overtime hours, or 100% for work on Sundays, holidays, and days off (Article 151{1}.1). .
Annual leave Entitlement as follows: 1) 18 days after one year of work; 2) 20 days after six years of work; and 3) 26 days after 10 years of work (Article 154.1). Entitlement as follows: 1) 20 days with under five years of work; 2) 23 days after five years of work; and 3) 26 days after 10 years of work. Time spent in learning/education is not taken into account in calculating the length of employment for purposes of defining the leave entitlement (Article 155 repealed).
Childcare leave No specific provisions governing use of leave. Specific provisions governing use of leave introduced - for instance employees benefiting from such leave may engage in gainful employment or in study provided that the attendant duties do not preclude personal care of their child (Articles 186{1}-186{7)).
Employment of minors 16 years defined as the minimum age for employment, with exceptions permitting employment of younger persons (Article 190.2). Children aged under 16 may be employed only for cultural or artistic projects or in sports and advertising. Minors may not be employed without the permission of their parents or guardians and also of the labour inspector (Article 304{5}).

Controversies surrounding new provisions

Not all of the latest changes made to the Labour Code received the same degree of approval, and some met with strong criticism, chiefly on the part of employers. According to many employers, the most recent amendments to the sick leave regulations amount to a step backwards with respect to the amendments made in 2002. The anti-bullying regulations have also engendered controversy, with employers' organisations complaining about what they regard as the vague definition of 'bullying', most particularly as regards the 'persistent and sustained' component. Employers argue that such a definition will render assessment of whether or not the prohibited practices have occurred quite difficult; given that aggrieved employees will be entitled to seek damages by way of civil suits, the employers fear that an avenue for a wave of unfounded claims is thus being opened. Similar fears attach to the anti-discrimination provisions, especially in relation to harassment. Employers also criticise the fact that the burden of proof in such cases is placed on the employer accused of wrongdoing.

The requirement whereby employees must receive 11 uninterrupted hours of rest in each 24-hour period may give rise to some complications in the organisation of work. Reservations were also been voiced with respect to the initial proposal on annual leave which provided only one threshold, that of 10 years in employment, for purposes of differentiating leave entitlements.

Some of the arguments advanced against the Labour Code's amendments approved by the Sejm clearly convinced the Senat, which made over 30 adjustments to the former’s draft, some of them in response to concerns raised by employers. While the first-day pay rule concerning sick leave remained in place, the definition of 'bullying' was expanded upon, and a compromise was reached with respect to length-of-employment criteria for determining annual leave entitlement (an intermediate threshold of five years was added).

The new provisions in the Labour Code must still be signed into law by the President of the Republic, after which they will into effect as of 1 January 2004. However, the regulations bringing Polish legislation into line with EU law will come into force only once Poland joins the EU. This applies to the provisions on fixed-term employment contracts, employment of workers posted from EU countries, elimination of carcinogens from the work environment, limiting the impact of harmful biological agents, analysis and documentation requirements with respect to harmful substances, work by minors, the State Labour Inspection, and – in part – redundancies for reasons not attaching to the employee.

Commentary

The most recent amendments to the Polish Labour Code are generally favourable to the employees. Predictably enough, employers have expressed discontent at these changes, viewing them as impediments to liberalisation of the labour market and thus contrary to the tendency which began to manifest itself in 2002. The uncertainty engendered by the statutory regulation of entirely new concepts such as bullying, and by new provisions about discrimination, is understandable. Some of the amendments made in 2002, such as the rule whereby the first day of sick leave is not paid, have not proved their worth in practice. It can be said with certainty that these amendments to Polish labour law will not be the last. (Jan Czarzasty, Warsaw School of Economics [Szkoła Główna Handlowa, SGH] and Institute of Public Affairs [Instytut Spraw Publicznych, ISP])

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