Latest amendments to Labour Code enter into force
In January 2009, a series of amendments to the Labour Code, which were passed into law at the end of 2008, came into force in Poland. The major modifications concern areas such as equal status in employment, maternity leave, parental leave, workplace safety and social benefits at workplace level. Through these amendments, a number of EU regulations have been introduced into the national legal framework, despite some reluctance on the part of employers.
In late 2008, Polish legislators made two consecutive amendments to the Labour Code. The parliament introduced significant alterations to the labour law regarding vital issues such as equal opportunities in employment, maternity leave, parental leave, workplace safety and social benefits at workplace level. The first series of amendments were passed into legislation in November 2008, while the second series of modifications were adopted in December. In both cases, the new regulations came into effect in January 2009.
Equal opportunities and health and safety
In November 2008, the parliament voted on a number of amendments to the Labour Code. These modifications were primarily triggered by pressure from the European Commission, which insisted that Poland should adjust its national legal environment in line with European legislation. In particular, the Commission cited the following directives: Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin; Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation; Directive 2002/73/EC amending Council Directive 76/207/EEC 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; and Council Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work.
Thus, equality issues and safety in the workplace were of key concern. As a result, the Polish parliament altered the Labour Code as outlined below.
Equal treatment and employment protection
Under the amended Labour Code, definitions of problems such as ‘indirect discrimination’ and its manifestations, ‘sexual harassment’ (clause 18.3a, sections 4, 5 and 6), and also the list of breaches of equal treatment (clause 18.3b, section 2) were reformulated to become less ambiguous.
New regulations establishing the protection of employees with regard to equal status issues were introduced. These, in particular, include:
- regulations that shield employees from ‘negative consequences’ of their actions related to either submitting to harassment and sexual harassment or resisting such malpractices (clause 18.3a, section 7);
- regulations extending the range of protection to which employees are entitled with regard to equal treatment in employment, so that employees availing of such protection cannot be subjected to any negative forms of treatment or consequences (clause 18.3e, section 1);
- expanded protection for employees providing help to other employees exposed to violations of equal treatment in employment (clause 18.3e, section 2);
- enhanced employment protection – employees returning to work after maternity leave or its equivalent are entitled to reclaim the posts that they had held before the leave. Alternatively, they must be assigned to posts that are equal in terms of skills required, with the same remuneration that would have applied if they had not been on the leave. Employers who fail to meet these requirements breach employee rights in line with clause 281, section 5.
Safety in the workplace
Several amendments concerning safety in the workplace were also introduced (clauses 207–210, 216, 225, 233 and 237.11a). One of the more controversial regulations requires hiring or training a fire safety inspector at each workplace where at least one employee is on the payroll.
Parental leave and childcare
In December 2008, another set of amendments were made to the Labour Code and the Workplace Social Benefits Funds Act, covering a wide range of issues including maternity leave, parental leave and workplace social benefits funds. In particular, the new regulations envisage the measures as outlined below.
The duration of maternity leave is determined by the number of children born at a time, ranging from 20 weeks when one child is born to 37 weeks in the case of five or more children born at a time (clause 180, section 1). Fathers of newborn children are entitled to partially exercise maternity leave provided that the following two conditions apply: the mother has used eight weeks of maternity leave and she is unable to provide care for a newborn child due to medical reasons (clause 180, section 6.1).
Optional parental leave
From 1 January 2010, employees of either sex will be entitled to additional optional maternity leave, if the father is on partial maternity leave when the mother gives up her leave after 14 weeks or if the father is not on partial maternity leave but applies for optional leave indicating the moment at which the mother is going to return to work. The length of the optional leave will increase gradually between 2010 and 2014 to reach a total of six weeks in cases where one child is born and eight weeks in the case of two or more children being born at a time (clauses 182.1 and 182.2).
From 1 January 2010 onwards, fathers of children aged under one year will be eligible for optional paternal leave. Employees on such leave will be entitled to receive maternal benefits and will be immune from redundancy. The length of the leave will increase gradually from one week in 2010 and 2011 to two weeks in 2012 (clause 182.3).
Leave for adoption or foster care
‘Leave equivalent to maternity leave’ becomes available for employees who have adopted children or applied to a court of law for adoption, or have decided to be foster carers – except for professional foster care – provided that the children are not older than seven years of age. The length of the leave is determined by the number of children adopted or taken into foster care, ranging from 20 weeks in the case of one child to 37 weeks in the case of five or more children (clause 183, section 1).
Additional optional leave equivalent to maternity leave will also become available from 1 January 2010 for employees adopting or taking children into foster care on the same conditions that concern natural parents applying for such leave. The length of the leave will increase gradually between 2010 and 2014 to ultimately reach six weeks where one child is being fostered, eight weeks in the case of two or more children and three weeks in the case of an older child up to seven years of age (clause 183, section 3).
Enhanced childcare rights
Employees entitled to childcare leave – another type of parental leave, which follows maternity leave – who have opted to continue working reduced hours, will enjoy extended protection from redundancy. Employers cannot terminate the employment contracts of such employees during the entire period in which they are using that option, provided that its length does not exceed 12 months (clause 186.8).
A number of regulations concerning ‘workplace social benefits funds’ were also amended. The financial means from such funds may now – upon the decision of the fund supervisors, that is, the employer and employee representatives – be used for building and maintaining childcare facilities (nurseries, kindergartens and other forms of childcare) at the workplace (clause 1, section 1 of the Workplace Social Benefits Funds Act). Alternatively, the funds may be used to compensate the expenses borne by parents for childcare facilities located outside the workplace (clause 2, section 1 of the act).
Views of social partners
As all of the amendments improved the position of employees in labour relations, trade unions had no serious reasons to intervene in the legislative process. On the other hand, employers – while generally accepting the planned modifications to the law – remained critical of certain proposals. In particular, the employers complained about the draft clause 186.7, section 2 (ultimately named 186.8) regarding extended employment protection for those taking childcare leave and working reduced hours. The idea of an optional reduction in working time for persons eligible for childcare leave generated some resistance. However, employers mainly appeared alarmed by the suggested length of job protection offered to such employees, which was initially proposed at three years.
Employers criticise leave options
In an official assessment of the draft legislation, the Confederation of Polish Employers (Konfederacja Pracodawców Polskich, KPP) criticised the concept of extending the length of maternity leave, citing the lack of conclusive evidence for a correlation between the length of such leave and the fertility rate. KPP also highlighted the increased risk of economic inactivity among women resulting from this overextended leave. Furthermore, the employer organisation expressed fears concerning the draft clause 186.7, section 2, pointing out that granting immunity from redundancy to persons entitled to childcare leave who opt to continue working reduced hours during the leave leads to the discrimination of persons using the leave to its full extent. The latter are allowed to work while on the leave only if they continue to care for children personally on a permanent basis – meaning that they are actually only permitted to work from home. However, those opting to continue working reduced hours during the leave are effectively not bound by such a constraint. On the other hand, KPP favourably reviewed the proposed regulations on the workplace social benefits funds.
The Polish Confederation of Private Employers ‘Lewiatan’ (Polska Konfederacja Pracodawców Prywatnych ‘Lewiatan’, PKPP Lewiatan) welcomed most of the proposals. Nevertheless, the employer organisation expressed the same doubts as KPP regarding the draft clause 186.7, section 2. PKPP Lewiatan warned that such a regulation, if passed into law, might encourage some employees to abuse the privilege – for example, by deliberately requesting the smallest working time reduction allowed by law, that is, one fortieth of regular working time – in order to seek additional protection from redundancy.
Compromise on length of job protection
The controversy surrounding this clause eventually led to a compromise, as the job protection period was reduced from the originally planned three years to one year – as now reflected in clause 186.8.
Employers oppose fire safety proposal
Overall, employers seemed more concerned about the draft regulations regarding safety at the workplace. First in the tripartite social dialogue bodies, and then in the course of the legislative process, employers opposed the idea of hiring or training a fire safety inspector at each workplace where at least one employee is on the payroll. Their appeals proved ineffective, however, as the idea was eventually incorporated into law.
The latest amendments to the Labour Code have transposed numerous EU-level regulations into the Polish legal framework, as requested by the European Commission. While the majority of these changes are not contested, certain exceptions have stirred public opinion. Some employers seem reluctant about the idea of establishing childcare facilities in the workplace. Furthermore, the regulations that require the hiring or training of fire safety inspectors at each workplace where at least one employee is contracted have been heavily criticised and ridiculed: more specifically, it has been pointed out that even the smallest business operations – newsagents, for example – with one employee on the payroll are thus bound by the law, which entails a serious financial burden for such small ventures. The government did not entirely dismiss this criticism and, as of late February 2009, volunteered to amend the Labour Code once again by removing that highly criticised regulation.
Jan Czarzasty, Institute of Public Affairs (ISP)