Z Problematyki Prawa Pracy i Polityki Socjalnej

An order to employ employees particularly protected seeking work reinstatement. A critical analysis

Monika Latos-Miłkowska, Michał Kibil — Thu, 25 Apr 2024 10:02:55 +0000

On September 22, 2023, art. 7555 of the Code of Civil Procedure came into force, establishing a new means of securing the claim in the form of an obligation to continue the employment of employees particularly protected against termination of employment contract, who have filed a claim for reinstatement, until the final conclusion of the proceedings. Art. 7555 of the Code of Civil Procedure has a very specific character – both in the light of the basic principles of labor law, especially the principle of voluntary establishment of an employment relationship, and under the provisions of civil procedure, constituting a far-reaching exception to art. 731 of the Code of Civil Procedure. Due to the above, the provision raises significant doubts and concerns, especially on the part of employers. In this study, the authors conduct an in-depth analysis of Art. 7555 of the Code of Civil Procedure and attempt to evaluate the regulation.

Offering employment opportunities at cultural institutions

Agnieszka Sikora — Thu, 25 Apr 2024 09:51:51 +0000

The aim of this paper is to present the problems of offering employment opportunities at cultural institutions within the context of the law as it stands, with a focus on regulations other than the provisions of the Polish Labour Code. The paper discusses the legal framework for employing managers and other personnel, and pays attention to the specific nature of legislation that applies to this category of personnel. The author draws on her own experience to identify the key issues and challenges related to the HR/personnel policies at cultural institutions.

Limitation of claims in Directive 2023/970 and the protection of the employee’s right to equal pay

Krzysztof Kurosz, Małgorzata Kurzynoga — Mon, 08 Apr 2024 14:41:23 +0000

The article presents the position that laws on limitation periods are an important element of effective protection of an employee’s right to equal pay. This should be seen in the broader context of the European legislator’s desire to make laws on equal treatment more effective and to close the pay gap. Directive 2023/970 emphasises the right to information, and this premise logically means that the beginning of the limitation period requires that the employee be aware of the infringement or that the employee can be reasonably expected, in the applicable circumstances, to be aware of the infringement. Article 21 of Directive 2023/970 provides, inter alia, that limitation periods may not begin until the claimant is aware of, or can reasonably be expected to be aware of, the infringement. This provision builds on the existing case-law of the CJEU. We argue that despite the adoption of a very similar rule in the case-law of the Supreme Court, Article 21(1) of Directive 2023/970 needs to be implemented verbatim into Polish law. This is due to structure-related doubts about the liability regime for breaches of the principle of equal treatment in employment relationships. We accept that it is contractual in nature, but this does not preclude the adoption of a subjective model for enforceability of claims, characteristic of a different tort liability regime. The reason for this is the protection of an employee. The article also argues that intertemporal problems associated with a possible optional extension of protection (the limitation period does not commence during the employment relationship) can be solved by applying the Civil Code of 23 April 1964 accordingly.

A social dialogue in the civil service

Jakub Szmit — Wed, 03 Apr 2024 13:36:41 +0000

The civil service corps consists of people employed in clerical positions in the government administration offices. Therefore, it is a professional group that remains in a very close relationship with the state, which, pursuant to art. 20 of the constitution should implement, among others, solidarity, dialogue and cooperation of social partners. This article analyses the extent to which this task is carried out in relation to the civil service, that is, at the level where the role of the state is not limited to being a legislator alone, but it also acts as an actual employer.

Sources of financing of the activity of trade unions

Helena Szewczyk — Tue, 21 Nov 2023 09:55:40 +0000

The Trade Unions Act does not name all the sources of internal and external financing of trade unions. The sources include membership fees, donations from third parties or income from business activities conducted by the association. It is hard not to notice, de lege lata, problems related to the rights of trade unions and their future role in the area of labor relations under the current provisions of the Trade Unions Act concerning the functioning of trade unions, e.g., regarding the financing of their activities. Undoubtedly, the current model of financing employee representation is far from perfect. Due to cases of abuse of Art. 24 of the Trade Unions Act, one should in particular call for a change in the current model in which trade unions
independently use their own legal personality when conducting business operations.

Possible remedies to prevent the misuse of diplomatic immunity

Lama Allan Abusamra — Tue, 30 May 2023 00:00:00 +0000

Since 1945, diplomatic immunity has altered. There are many factors which inhibit immunity. Firstly, consistent Cold War retaliation existed. Second, national security in the nuclear age was prioritized. The intricacy of international politics and mission expansion influenced a change. Also, the abuse of diplomatic and non-diplomatic immunity necessitated modification. In the 1960s, when hundreds of diplomats were sued, diplomatic immunity was called into doubt. Diplomatic abuses should force a reform of the Vienna Convention. Functional needs explained immunity modifications in the 1960s. Increasing and expanding immunity categories contributed to the improvement of the theory. However, there is no abuse remedy that is universally acceptable and enforceable. Should functional necessity theory replace immunity’s cloak? The pacta sunt serva concept of the noncontroversial law of treaties could be utilized to obtain multilateral agreement on the nature, cause, and effect of the functional necessity theory. A Permanent International Diplomatic Criminal Court with mandatory jurisdiction over accused diplomats and its own punishment system has been under discussion since the late 1980s. It never occurred, yet it may have resolved the diplomat disagreement between the victim and the accused.

ILO Convention No. 190 concerning the Elimination of Violence and Harassment in the World of Work and Recommendation No. 206

Eva Kocher — Tue, 23 May 2023 00:00:00 +0000

Violence and harassment are present in the world of work in the most diverse forms2. The ILO Violence and Harassment Convention 20193 should therefore be of great importance for labour law practice. It was adopted on 21 June 2019, together with the non-binding Recommendation for Implementation (No. 206)4, on the occasion of the centenary of the ILO.
As the Convention falls partly within the competence of the European Union, with the EU not being able to ratify the Convention itself5, the European Commission has invited the member states to ratify the Convention by the end of 20226. The German Federal Government is currently planning ratification.
In the following, I give an overview of the Convention and, using German law as an example, discuss how it could be implemented in a legal system shaped by EU law.

On the anxiety concerning of imminent prospect of the microchipping of employees: Remarks in the context of the emerging legislation in the USA

Barbara Surdykowska — Wed, 19 Apr 2023 00:00:00 +0000

Barbara Surdykowska draws attention to legislation, specifically in the US, which prohibits (or emphasizes the importance of the employee’s consent to) subcutaneous microchipping in the context of work relations. In Surdykowska’s opinion, issue of the use of microchips in the labor context and the potential decisions of the legislator may serve as a litmus test of reactions to the expected technological transformation. The simultaneous and progressive use of subcutaneous microchips is at this point a very early phase of the phenomenon of the cyborgization of the employee’s body.

EU law and problems of the codification of the Bulgarian labour legislation

Krassimira Sredkova — Wed, 19 Apr 2023 00:00:00 +0000

Based on historical experience, in Bulgarian labour legislation, in recent years the problem of the state of its codification has become more and more pronounced. This condition is alarming. In the presence of a reasonable, comprehensive code, laws are being constantly adopted on separate issues that either do not regulate anything specific, or repeat provisions of the Labour Code. Furthermore, the body of by-laws
keeps expanding uncontrollably. Most often this is explained by some requirements of EU law, new socio-economic conditions, etc., while in fact this expansion is due to inadequate expertise of the law-making bodies, interference of non-legal considerations, etc. This creates many difficulties in understanding and applying labour legislation.

Platform work as a manifestation of a new form of employment in the era of the fourth industrial revolution

Tomasz Mirosławski — Wed, 19 Apr 2023 00:00:00 +0000

The aim of this paper is to analyse a new form of employment which has appeared in the Polish labour market in recent years, i.e. work via digital platforms. The author discusses the issue of platform work in the context of its impact on the current labour market. Particular attention is paid to the identification of threats connected with this new form of employment, the demands of the European and Polish trade unions put forward in relation to platform workers and the regulations planned in this field at the EU level. The author also shares his reflections on the practices applied by the owners of digital platforms and the effective method of their control by Member States.

On the border of the physical and the virtual workplace – Dogmatic issues of home office and telework in general and in Hungarian law

Gábor Mélypataki, Bernadett Solymosi-Szekeres, Laura Kovács-Berényi — Wed, 19 Apr 2023 00:00:00 +0000

The recent pandemic forced companies to switch to working from home, which was necessary to maintain health and economic efficiency. The move from physical workplaces to virtual workplaces in the digital space, however, started earlier than the pandemic. The pandemic amplified this process. In parallel, we also see that companies have had positive experiences in the process of creating virtual workplaces. The virtual workplace has serious IT-issues, which we attempt to reflect on. Some of the employees have taken to this solution: a significant part of the companies has not even returned to the classical former working processes. We have to focus also on the issues of the virtual workplace. Due to its practical popularity, it was necessary to regulate home office at the legal level, as most experts also had the opposite opinion on its essential elements. In order to close this debate, the legislator has created a new regulation concerning teleworking, which amends the rules of the Hungarian Labour Code on teleworking with effect from the end of the emergency. The purpose of this paper is to present the new legislation, with particular attention to the points at issue and the basics of its application in practice.

The admissibility of the payment of remuneration in cryptocurrency in the light of Polish labor law

Jakub Grygutis — Wed, 19 Apr 2023 00:00:00 +0000

The problem posed by Jakub Grygutis in this article concerns the admissibility of the payment of remuneration in cryptocurrency in the light of Polish law. Grygutis analyzes the legal nature of cryptocurrencies as a means of payment. Currently, a state of what can be called legal dualism obtains with regard to cryptocurrencies. The bitcoin is means of payment in El Salvador, while other cryptocurrencies do not have this value. Next, Grygutis analyzes the key issue through the prism of Art. 86 § 2 of the Labor Code, which defines the rules for the payment of remuneration.

Legal aspects of overtime in the process of video game development

Piotr Sypecki — Tue, 14 Mar 2023 00:00:00 +0000

In this article, Piotr Sypecki examines the aspect of overtime work in video game development. He notes that the phenomenon known as “crunch” poses a challenge for producers and employees. Sypecki analyzes the legal issues that arise here; in particular, he highlights the basis of work performance, the predictability of overtime, and the protection of employees’ health.

Report of the Nationwide Scientific Conference “Evolution of employment against the background of technological changes”

Daria Dymarczyk, Ewelina Działek, Norbert Sitko — Wed, 22 Feb 2023 00:00:00 +0000

Pay transparency: Remarks in the background of the proposal for an EU directive of 2021

Urszula Torbus — Thu, 30 Jun 2022 11:39:58 +0000

In March 2021, the EU Commission presented a proposal for a directive on pay transparency. Its aim is to strengthen the principle of equal pay for women and men, since, despite its recognition as a fundamental principle of the European Union, in all the Member States the pay gap between employees of both sexes remains at around 14%.
The draft directive of 2021 provides for the strengthening of pay transparency by, among other measures, introducing transparent remuneration systems, defining criteria for comparing jobs of comparable value, indicating the amount of remuneration in job advertisements, and introducing reporting obligations for businesses with more than 250 employees. The draft also introduces facilitations related to the pursuit of claims for pay discrimination. However, pay transparency should not be confused with pay disclosure.
Currently, in Poland there are no regulations on pay transparency. Employers are not obliged to examine salaries for potential discrimination and to address unjustified gender pay gaps. No such practice has developed in the approach of social partners, either. For this reason, regardless of the progress made on the draft directive, it is necessary to ensure a gradual increase in pay transparency, for it protects employees against the imposition of discriminatory employment conditions by the employer.