Pub Date : 2022-12-05DOI: 10.4467/25444654spp.22.033.16578
Monika Latos-Miłkowska
Legal status of persons performing gainful employment on a basis other than employment relationship in the light of the Act on Resolution of Collective Disputes The amendment to the Act on Trade Unions, which entered into force on 1 January 2019, significantly expanded the scope of people who have the right to associate in trade unions. As a consequence—in connection with Art. 6 of the Act on resolving collective disputes—the provisions of the Act on collective disputes concerning employees shall apply accordingly to these persons. This text analyses the legal status of these persons in the context of collective labour disputes. The author points out in particular those provisions of the Act on resolving collective disputes, the proper application of which to persons performing work on a basis other than an employment relationship may raise theoretical and practical problems and, as a finally, result in a reduction in the level of their protection compared to employees.
{"title":"Status prawny osób świadczących pracę zarobkową na innej podstawie niż stosunek pracy w świetle ustawy o rozwiazywaniu sporów zbiorowych","authors":"Monika Latos-Miłkowska","doi":"10.4467/25444654spp.22.033.16578","DOIUrl":"https://doi.org/10.4467/25444654spp.22.033.16578","url":null,"abstract":"Legal status of persons performing gainful employment on a basis other than employment relationship in the light of the Act on Resolution of Collective Disputes\u0000\u0000The amendment to the Act on Trade Unions, which entered into force on 1 January 2019, significantly expanded the scope of people who have the right to associate in trade unions. As a consequence—in connection with Art. 6 of the Act on resolving collective disputes—the provisions of the Act on collective disputes concerning employees shall apply accordingly to these persons. This text analyses the legal status of these persons in the context of collective labour disputes. The author points out in particular those provisions of the Act on resolving collective disputes, the proper application of which to persons performing work on a basis other than an employment relationship may raise theoretical and practical problems and, as a finally, result in a reduction in the level of their protection compared to employees.","PeriodicalId":52556,"journal":{"name":"Studia z Zakresu Prawa Pracy i Polityki Spolecznej","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48509545","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-05DOI: 10.4467/25444654spp.22.035.16580
Magdalena Paluszkiewicz
On the assistance in taking up employment in the context of an public servants’ relationship under the Act on Employment Promotion and Labour Market Institutions The Act of 20 April 2004 on the Promotion of Employment and Labour Market Institutions provides for assistance in taking up the employment in the context of a public servants’relationship. However, this subject raises many problems of interpretation, but also controversy, arising from the comparison of the specific construction features of the public service employment relationships with the economic situation of the unemployed person. This problem, which is only hinted at in the doctrine of labour law, seems to have been completely ignored by the legislature, which, during the almost 20-year period of validity of the Employment Promotion Act and Labour Market Institutions, overlooked the matters mentioned in spite of numerous and far-reaching amendments to the Act. The aim of the study is therefore to identify the main uncertainties of interpretation in the application of its rules on support for taking up employment in the public service relationship and to formulate the claims de lege ferenda.
{"title":"O pomocy w podejmowaniu zatrudnienia w ramach stosunków służbowych na gruncie ustawy o promocji zatrudnienia i instytucjach rynku pracy","authors":"Magdalena Paluszkiewicz","doi":"10.4467/25444654spp.22.035.16580","DOIUrl":"https://doi.org/10.4467/25444654spp.22.035.16580","url":null,"abstract":"On the assistance in taking up employment in the context of an public servants’ relationship under the Act on Employment Promotion and Labour Market Institutions\u0000\u0000The Act of 20 April 2004 on the Promotion of Employment and Labour Market Institutions provides for assistance in taking up the employment in the context of a public servants’relationship. However, this subject raises many problems of interpretation, but also controversy, arising from the comparison of the specific construction features of the public service employment relationships with the economic situation of the unemployed person. This problem, which is only hinted at in the doctrine of labour law, seems to have been completely ignored by the legislature, which, during the almost 20-year period of validity of the Employment Promotion Act and Labour Market Institutions, overlooked the matters mentioned in spite of numerous and far-reaching amendments to the Act. The aim of the study is therefore to identify the main uncertainties of interpretation in the application of its rules on support for taking up employment in the public service relationship and to formulate the claims de lege ferenda.","PeriodicalId":52556,"journal":{"name":"Studia z Zakresu Prawa Pracy i Polityki Spolecznej","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48899914","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-05DOI: 10.4467/25444654spp.22.037.16582
Kinga Moras-Olaś
The need to prevent the abuse of fixed-term employment contracts, having its legal basis in the framework agreement on fixed-term work, implemented by Council Directive 99/70/EC, may have been weakened by the tendency to become more flexible in the face of the socio-economic conditions related to the coronavirus pandemic. From the point of view of an employee, it is important to be employed under an employment contract, ultimately for an indefinite period. Long-term employment on a temporary contract is associated with the phenomenon of precarization of employment and leads to segmentation in the labour market. The purpose of this paper is to answer the questions of whether the state of pandemic affects in some way the possibility of concluding fixed-term employment contracts, in particular whether it can constitute an objective reason justifying the conclusion of such an employment contract.
{"title":"Is the Existing Model of Preventing the Abuse of Fixed-Term Employment Contracts in Poland and Germany Sufficient in the Face of the COVID-19 Pandemic?","authors":"Kinga Moras-Olaś","doi":"10.4467/25444654spp.22.037.16582","DOIUrl":"https://doi.org/10.4467/25444654spp.22.037.16582","url":null,"abstract":"The need to prevent the abuse of fixed-term employment contracts, having its legal basis in the framework agreement on fixed-term work, implemented by Council Directive 99/70/EC, may have been weakened by the tendency to become more flexible in the face of the socio-economic conditions related to the coronavirus pandemic. From the point of view of an employee, it is important to be employed under an employment contract, ultimately for an indefinite period. Long-term employment on a temporary contract is associated with the phenomenon of precarization of employment and leads to segmentation in the labour market. The purpose of this paper is to answer the questions of whether the state of pandemic affects in some way the possibility of concluding fixed-term employment contracts, in particular whether it can constitute an objective reason justifying the conclusion of such an employment contract.","PeriodicalId":52556,"journal":{"name":"Studia z Zakresu Prawa Pracy i Polityki Spolecznej","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71001506","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-05DOI: 10.4467/25444654spp.22.034.16579
J. Szmit
Influence of the collective labour law reform on the practice of functioning of trade unions On the date of entry into force (1 January 2019), the provisions of the Act of 5 July 2018 amending the Act on trade unions and certain other acts, a revolution in the Polish collective labour law took place (from that moment it is even legitimate to refer to it as collective employment law). Obviously, the new regulations have been thoroughly analysed in the doctrine. However, apart from a scientific perspective, it is also worth making an attempt to assess how they worked on the addressees in practice. First of all, it is about the broadly understood trade union movement. This study focuses on this aspect of the amendment to the Act on trade unions. The actual effects of the new boundaries of the coalition law are analysed, first of all, but also of other elements of the reform (e.g. rules regarding the verification of declarations on the number of company trade unions). The aim is to assess whether the reform has realized the hopes placed in it.
{"title":"Wpływ reformy zbiorowego prawa pracy na praktykę funkcjonowania związków zawodowych","authors":"J. Szmit","doi":"10.4467/25444654spp.22.034.16579","DOIUrl":"https://doi.org/10.4467/25444654spp.22.034.16579","url":null,"abstract":"Influence of the collective labour law reform on the practice of functioning of trade unions\u0000\u0000On the date of entry into force (1 January 2019), the provisions of the Act of 5 July 2018 amending the Act on trade unions and certain other acts, a revolution in the Polish collective labour law took place (from that moment it is even legitimate to refer to it as collective employment law). Obviously, the new regulations have been thoroughly analysed in the doctrine. However, apart from a scientific perspective, it is also worth making an attempt to assess how they worked on the addressees in practice. First of all, it is about the broadly understood trade union movement. This study focuses on this aspect of the amendment to the Act on trade unions. The actual effects of the new boundaries of the coalition law are analysed, first of all, but also of other elements of the reform (e.g. rules regarding the verification of declarations on the number of company trade unions). The aim is to assess whether the reform has realized the hopes placed in it.","PeriodicalId":52556,"journal":{"name":"Studia z Zakresu Prawa Pracy i Polityki Spolecznej","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71001270","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-05DOI: 10.4467/25444654spp.22.036.16581
Ewelina Kumor-Jezierska
Employment certificate: selected problems The purpose of the article is to draw attention to the selected problems pertaining to the proper issue of the employment certificate with regard to the recent changes that have entered into force. In a situation when an employment relationship has ended, every employer has a legal obligation to issue an employment certificate. It is a document containing information necessary to establish employees’rights in the next place of employment, with pension authorities or in a job center. Starting from 1 January 2019 the employer, apart from an employment certificate, is also obliged to render to the employee, either in a paper or an electronic form, information on: the period of legal documentation storage, the possibility to receive employee documentation till the end of a calendar month following the lapse of time of employee documentation storage as well as information on employee documentation destruction in the case it was not picked up within the prescribed period.
{"title":"Świadectwo pracy – wybrane problemy","authors":"Ewelina Kumor-Jezierska","doi":"10.4467/25444654spp.22.036.16581","DOIUrl":"https://doi.org/10.4467/25444654spp.22.036.16581","url":null,"abstract":"Employment certificate: selected problems\u0000\u0000The purpose of the article is to draw attention to the selected problems pertaining to the proper issue of the employment certificate with regard to the recent changes that have entered into force. In a situation when an employment relationship has ended, every employer has a legal obligation to issue an employment certificate. It is a document containing information necessary to establish employees’rights in the next place of employment, with pension authorities or in a job center. Starting from 1 January 2019 the employer, apart from an employment certificate, is also obliged to render to the employee, either in a paper or an electronic form, information on: the period of legal documentation storage, the possibility to receive employee documentation till the end of a calendar month following the lapse of time of employee documentation storage as well as information on employee documentation destruction in the case it was not picked up within the prescribed period.","PeriodicalId":52556,"journal":{"name":"Studia z Zakresu Prawa Pracy i Polityki Spolecznej","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71001361","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-12-05DOI: 10.4467/25444654spp.22.031.16576
Zbigniew Hajn
The paper presents the concept of the collective agreement, trade union representativeness, and the subjective scope of collective agreements in Polish law in the light of international labour law. In the author’s opinion, a better adaptation of the Polish legislation relating to agreements between the social partners on working conditions to international standards by classifying as collective agreements all agreements concluded by representative trade union organisations would remove disputes and uncertainty about their legal effects and would contribute to increasing the scope of collective bargaining. A modification of the provisions on work and pay company regulations would also serve this purpose. In addition, the author suggests changes in the provisions extending the personal scope of collective agreements to workers performing work outside the employment relationship by separating the group of solo self-employed workers belonging to the “grey area”between employees and self-employed workers and extending to them the full effects of concluding an agreement.
{"title":"Collective Agreements in Poland in the Light of International Labour Standards","authors":"Zbigniew Hajn","doi":"10.4467/25444654spp.22.031.16576","DOIUrl":"https://doi.org/10.4467/25444654spp.22.031.16576","url":null,"abstract":"The paper presents the concept of the collective agreement, trade union representativeness, and the subjective scope of collective agreements in Polish law in the light of international labour law. In the author’s opinion, a better adaptation of the Polish legislation relating to agreements between the social partners on working conditions to international standards by classifying as collective agreements all agreements concluded by representative trade union organisations would remove disputes and uncertainty about their legal effects and would contribute to increasing the scope of collective bargaining. A modification of the provisions on work and pay company regulations would also serve this purpose. In addition, the author suggests changes in the provisions extending the personal scope of collective agreements to workers performing work outside the employment relationship by separating the group of solo self-employed workers belonging to the “grey area”between employees and self-employed workers and extending to them the full effects of concluding an agreement.","PeriodicalId":52556,"journal":{"name":"Studia z Zakresu Prawa Pracy i Polityki Spolecznej","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-12-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71001614","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-20DOI: 10.4467/25444654spp.22.022.16567
Eliza Maniewska
Bearing the economic risk as a feature of a self-employed person The author puts forward and justifies the thesis that one of the essential features of self-employment is bearing the economic risk. She indicates the implication of this thesis in the context of preventing the so-called sham self-employment, and in the context of the search for a legal model of self-employment protection, understood as covering this group of contractors, with the necessary modifications, by some protective institutions specific to employees within the meaning of Art. 2 of the Labor Code.
{"title":"Ponoszenie ryzyka gospodarczego jako cecha osoby pracującej na własny rachunek","authors":"Eliza Maniewska","doi":"10.4467/25444654spp.22.022.16567","DOIUrl":"https://doi.org/10.4467/25444654spp.22.022.16567","url":null,"abstract":"Bearing the economic risk as a feature of a self-employed person\u0000\u0000The author puts forward and justifies the thesis that one of the essential features of self-employment is bearing the economic risk. She indicates the implication of this thesis in the context of preventing the so-called sham self-employment, and in the context of the search for a legal model of self-employment protection, understood as covering this group of contractors, with the necessary modifications, by some protective institutions specific to employees within the meaning of Art. 2 of the Labor Code.","PeriodicalId":52556,"journal":{"name":"Studia z Zakresu Prawa Pracy i Polityki Spolecznej","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71000847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-20DOI: 10.4467/25444654spp.22.026.16571
Renata Babińska-Górecka
Self-employment and rights related to the parenthood The article deals with the legal and factual possibilities for self-employed to exercise certain rights related to parenthood. It addresses the issue of who, in the light of international, regional and EU legal norms, is the addressee of rights related to parenthood and what is their content and axiological justification. An attempt was also made to determine whether national law guarantees self-employed workers parental rights and, if so, to what extent, and to identify factual and legal obstacles to the exercise by self-employed contractors of parental rights.
{"title":"Praca na własny rachunek a uprawnienia związane z rodzicielstwem","authors":"Renata Babińska-Górecka","doi":"10.4467/25444654spp.22.026.16571","DOIUrl":"https://doi.org/10.4467/25444654spp.22.026.16571","url":null,"abstract":"Self-employment and rights related to the parenthood\u0000\u0000The article deals with the legal and factual possibilities for self-employed to exercise certain rights related to parenthood. It addresses the issue of who, in the light of international, regional and EU legal norms, is the addressee of rights related to parenthood and what is their content and axiological justification. An attempt was also made to determine whether national law guarantees self-employed workers parental rights and, if so, to what extent, and to identify factual and legal obstacles to the exercise by self-employed contractors of parental rights.","PeriodicalId":52556,"journal":{"name":"Studia z Zakresu Prawa Pracy i Polityki Spolecznej","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71001222","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-20DOI: 10.4467/25444654spp.22.027.16572
K. Walczak
The legal status of a trade union activist performing work on a basis other than an employment contract As a result of the amendment to the Act on Trade Unions, people performing work based on a civil law contracts may become trade union activists. However, this raises significant questions. First of all, it is doubtful to grant compensation to person who was dismissed without the consent of the trade union in the case where the termination of contract is objectively justified. Secondly, it is doubtful to grant these people the right to remuneration while they are released from the obligation to perform work.
{"title":"Status prawny działacza związkowego wykonującego pracę zarobkową na innej podstawie niż stosunek pracy","authors":"K. Walczak","doi":"10.4467/25444654spp.22.027.16572","DOIUrl":"https://doi.org/10.4467/25444654spp.22.027.16572","url":null,"abstract":"The legal status of a trade union activist performing work on a basis other than an employment contract\u0000\u0000As a result of the amendment to the Act on Trade Unions, people performing work based on a civil law contracts may become trade union activists. However, this raises significant questions. First of all, it is doubtful to grant compensation to person who was dismissed without the consent of the trade union in the case where the termination of contract is objectively justified. Secondly, it is doubtful to grant these people the right to remuneration while they are released from the obligation to perform work.","PeriodicalId":52556,"journal":{"name":"Studia z Zakresu Prawa Pracy i Polityki Spolecznej","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71001311","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2022-10-20DOI: 10.4467/25444654spp.22.025.16570
Artur Tomanek
Self-Employment and Wage Protection The Act of 10 October 2002 of the minimum wage, as amended in 2016, has granted a right of minimum hourly wage to natural persons who carry out economic activity and employ neither employees nor mandataries. Minimum hourly wage is a subject of protection based on a concept of employees’ wage protection which is laid down in Polish Labour Code. In this text the aspects of protection laid down in the amended Act of the minimum wage are analysed, not excluding the protection against execution in the meaning of the Civil Procedure Code. In conclusion the author states that the subjective scope of above-mentioned protection goes too far taking into account that natural persons who carry out economic activity on the real market do not need a protection based on labour law concept.
{"title":"Praca na własny rachunek a ochrona wynagrodzenia za pracę","authors":"Artur Tomanek","doi":"10.4467/25444654spp.22.025.16570","DOIUrl":"https://doi.org/10.4467/25444654spp.22.025.16570","url":null,"abstract":"Self-Employment and Wage Protection\u0000\u0000The Act of 10 October 2002 of the minimum wage, as amended in 2016, has granted a right of minimum hourly wage to natural persons who carry out economic activity and employ neither employees nor mandataries. Minimum hourly wage is a subject of protection based on a concept of employees’ wage protection which is laid down in Polish Labour Code. In this text the aspects of protection laid down in the amended Act of the minimum wage are analysed, not excluding the protection against execution in the meaning of the Civil Procedure Code. In conclusion the author states that the subjective scope of above-mentioned protection goes too far taking into account that natural persons who carry out economic activity on the real market do not need a protection based on labour law concept.","PeriodicalId":52556,"journal":{"name":"Studia z Zakresu Prawa Pracy i Polityki Spolecznej","volume":null,"pages":null},"PeriodicalIF":0.0,"publicationDate":"2022-10-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"71001554","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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