Proposed amendments to Polish Labour Code under review

In September 2006, the Labour Law Codification Committee working on the Polish Labour Code unveiled a new draft of the code. If the changes are implemented as currently proposed, they will amount to a major shifting of relations between employers and employees.

Background

In 2005, the Labour Law Codification Committee presented its first draft of a new Labour Code to the Polish government. It had been decided that the members of the Committee would not comment on specific solutions until the final version of the code had been agreed upon. As time went by, however, fears that the work might only be a theoretical exercise were confirmed (PL0510105F). No serious debate took place until the deadline for the Codification Committee’s work – set for 30 September 2006 – began to approach.

Although the latest draft Labour Code has not been submitted for further consideration, its authors remain optimistic, maintaining that their work is essentially finished and that the minor editing still required will only take a number of weeks at most. Assuming that this is indeed the case, a small hope remains that, by 2007, Polish employees will go to work under the regime of a revised Labour Code.

It appears that the current draft proposal does not differ substantially from the draft Labour Code submitted in 2005. The latest draft maintains the concept introduced in the 2005 draft of two separate statutes – an individual labour code and the collective labour code.

Individual labour code

Among the most significant changes proposed is to expand the remit of the Labour Code to include persons employed on the basis of a contract for services or for completion of a specific task. Under the new code, such individuals – who hitherto have not enjoyed the same degree of legal protection as full-time employees – would be able to enforce their rights before the labour courts. They would also receive a minimum wage and entitlement to unpaid individual and parental leave. The National Labour Inspectorate (Panstwowa Inspekcja Pracy, PIP) would supervise due performance of contracts for services and contracts for completion of a specific task.

The amended Labour Code also safeguards the interests of managerial personnel retained on the basis of management contracts. Again, to date, such individuals do not have recourse to the Polish Labour Code. However, under the proposed code, a manager would be able to contract with his/her employer for management of the employing establishment; this contract would define the remuneration terms, largely tying the remuneration to the achievement of specified objectives. As with persons retained on the basis of commission contracts and contracts for completion of a specific task, a manager would also become entitled to recreational leave.

The proposals also call for a widening of the scope of the Polish Labour Code to include temporary workers.

In its proposals, the Codification Committee also considered the question of telework, taking the position that the fact that teleworkers perform most of their duties away from the employer’s premises is no reason to isolate them from information about the company or from interaction with other employees. Accordingly, the Codification Committee has proposed that employers should be obliged to provide teleworkers with a means of communicating with the workforce representative.

At the same time, the draft code goes some way towards accommodating the employers, who had been lobbying for greater flexibility to terminate the employment of persons retained for an indefinite term. Under the proposed amendments, an employer would no longer be bound by law to consult with the trade unions in relation to a proposed termination of this sort, although the employer would have to notify the unions once termination had actually been effected.

Thus, it seems that this is an attempt to strike a balance between the benefits and the losses entailed by the individual labour code for each party (see Table).

Benefits in proposed individual labour code for employees and employers
Benefits in proposed individual labour code for employees and employers
Benefits to employees Benefits to employers
More generous leave entitlements Possibility of paying damages rather than being obliged to restore a wrongfully dismissed employee
Possibility to sign preliminary contracts for employment Shorter periods during which the employer must pay illness benefits
Better safeguards against discrimination No obligation to draw up vacation plans
More benefits in the event of temporary shut-down of company Longer deadlines for extending overdue leave to employees
Capped aggregate duration of fixed-term contracts with a single employer  

Source: Draft Polish Labour Code, September 2006

Collective labour code

The Codification Committee has taken the position that no comprehensive system of employment law is operable without regulation of employee representation, collective disputes or collective agreements. As matters currently stand, issues such as these are governed by a wide array of statutes, which are not necessarily cohesive; the proposed collective Labour Code therefore constitutes an attempt to consolidate these regulations within a single legal act.

Apart from its ordering and streamlining function, the proposed collective Labour Code would also introduce some entirely new provisions, such as less protection against dismissal for union officials and stronger court supervision over industrial action. The idea of instituting a right to enforce lock-outs has been abandoned. Under the proposal ultimately adopted, an employer would be entitled to apply to the courts to consider the legality of a strike, either already underway or planned. In the event that the strike is declared illegal, the employer could close the facility but not dismiss its workforce. Under these circumstances, all employees would lose their right to remuneration – not only those actually participating in the industrial action, as is the case with a legal strike.

Commentary

Recent political concerns in Poland have tended to overshadow the work on the new Labour Code and, at present, the politicians seem to be too busy to talk about the reform of the labour law. Thus, the views of the social partners have not been forthcoming so far. They need to first have time to familiarise themselves with the amendments proposed for the Labour Code.

Rafal Towalski, Institute of Public Affairs (ISP)

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