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Amendments introduced to the Labour Code in 2013




by:
BSJP Brockhuis Jurczak Prusak Sp.k. - Warsaw Office

 
February 28, 2014

  1. Cancellation of the notification duty of the employer

On 2 January 2013, the Act of 9 November 2012 on the amendment to the Labour Law Act and some other acts was promulgated in the Journal of Laws of the Republic of Poland (Journal of Laws of 2013, item 2). The amendment entered into force after fourteen days from the promulgation, i.e. on 17 January 2013.

Pursuant to the law in question, there have been cancelled the notification duties of entrepreneurs who commence their business activity towards the National Labour Inspectorate (NLI) and the National Sanitary Inspectorate (NSI). From the date of the amendment becoming effective, an entrepreneur who commences their business activity is no longer obliged to notify in writing the competent district NLI officer and the competent NSI officer of place, type and scope of performed activity, nor of the change of place, type and scope of performed activity, in particular of the change of technology or profile of production unless the change of technology will produce an increase in the hazard to the health of an employee.

From now on, the NLI and the NSI are to obtain necessary data from data recorded in the national official business register REGON, maintained by the President of the Central Statistical Office, and from data collected by the Social Insurance Institution ZUS on accounts of payers of social insurance contributions.


Amendments regarding business travel

On 1 March 2013, the ordinance of the Minister of Labour and Social Policy of 29 January 2013 on the reimbursement of costs of business travel to employees of national or local government budgetary units entered into force (Journal of Laws of 2013, item 167).

The discussed ordinance shall replace the regulations included until now in two separate legal acts - on domestic and on international travel. Now, the provisions regarding both domestic and international travel are to be found in one legal act.

 

Amendments to employee’s rights relating to parenthood, to include the introduction of maternity leave

 On 17 June 2013, the Act of 28 May 2013 on the amendment to the Labour Law Act and some other acts, hereinafter referred to as “the act” or “the amendment”, entered into force(Journal of Laws of 2013, item 675). 

The act has introduced amendments to the provisions pertaining to rights relating to parenthood, inter alia by:

1)    introducing a new type of leave to which an employee is entitled to with regard to a birth of a child - the parental leave.

The parental leave shall amount to 26 weeks, regardless of the number of children born at one birth. The leave in question may be used immediately after the additional maternity leave has been used in full amount.

 

The parental leave is granted on a one-off basis, or in no more than three consecutive parts of at least 8 weeks each.

 

The parental leave is granted upon a written request, which may be submitted within two periods (the amount of maternity benefit will be subject to the date of request). The first period has been set out in Article 1791 of the Labour Code, pursuant to which a female employee may no later than 14 days after giving birth submit a written application for granting her, immediately after the maternity leave, the additional maternity leave in full amount, and then, immediately after the additional maternity leave - the parental leave in full amount. The second period has been set out in Article 1821a § 4 of the Labour Code, pursuant to which the request may be submitted by each parent within the period of at least 14 days prior to the commencement of such leave. The employer is obliged to accept the above-mentioned requests.

 

2)    extending the additional maternity leave which may be used by an employee immediately after the maternity leave.

 

From the date of the act being effective, the additional maternity leave, granted immediately after the maternal leave, is to amount to 6 weeks when giving birth to one child at one birth (until now, in 2013, it amounted to a maximum of 4 weeks).

 

The additional maternity leave is granted upon a written request, which may, as in the case of the parental leave, be submitted within two periods. Pursuant to article 1791 of the Labour Code, a female employee is entitled submit a written request no later than within 14 days after giving birth or, pursuant to Article  1821 § 3 of the Labour Code, both parents are entitled to submit a request within the period of at least 14 days (until now it was 7 days) prior to the commencement of this leave. The employer is obliged to accept the above-mentioned requests

 

Due to the amendment, the additional maternity leave may be granted not only on a one-off basis but also in two consecutive parts.

 

An employee may also interweave the additional maternity leave and the parental leave with work performed for an employer who has granted such leave, in the amount not exceeding 50 per cent of working time. In this event, the employer has been given the right to dismiss the request of an employee in exceptional circumstances. The employer may refuse to grant the employee the leave in the event that it is impossible to interweave the additional leave with the performance of work due to the arrangement of work or the type of work performed by an employee. The employer is obliged to inform the employee in writing about the reasons for the refusal. 

 

3)    extending the amount of maternity leave which may be taken before the predicted date of birth from 2 to 6 weeks. 

 

The general amount of the maternity leave, however, remains unamended and it amounts to 20 to 37 weeks, depending on the number of children born at one birth.

 

4)    introducing the possibility to use the parental leave until the child is 5 years old (so far it was “4 years old”).

Due to the amendment, the total amount of the maternity leave, the extended additional maternity leave and the introduced parental leave, will, in the event of giving birth to one child at one birth, amount to 52 weeks.

Amendments to working time: Settlement period and “flexible working time”

On 8 August 2013, the Act of 12 July 2013 on the amendment to the Labour Code and the Act on Trade Unions (Journal of Laws of 2013, item 896, hereinafter referred to as “the act” or “the amendment”,) was promulgated. The Amendment entered into force 14 days after the promulgation, i.e. on 23 August 2013.

Crucial amendments comprise the possibility to extend the working time settlement period to 12 months and the introduction of a new mechanism, the so-called flexible working time.

Pursuant to the rationale of the act, the introduced changes are aimed at enabling employers to implement flexible working process arrangements to adapt to the evolving economic conditions.

1)    Extension of the settlement period to 12 months

The act makes it possible to extend the working time reference period up to 12 months in respect of all working time systems, provided it is justified by objective and technical reasons or reasons relating to working arrangements and it is done in compliance with the general rules regarding protection of employee health and safety.

 

Periods of longer working time are to be balanced out by periods of shorter working time and days off, depending on the demand for work during specific months. It is of importance that in the event that within any given month an employee is not obliged to work as a result of the working time schedule during the applied reference period, then despite the above the employee is still entitled to remuneration not lower than the minimum remuneration for work as set on the basis of separate provisions.

2)    Flexible working time

The new provisions make it possible to arrange for working time schedules enabling employees to start work at different hours, i.e. the so-called “flexible working time”. Implementation of flexible working time will be possible under two options:

a) the working time schedule may provide for different starting hours on days which according to the schedule are working days for employees,

b) the working time schedule may provide for a time bracket with an employee deciding at what time during that time bracket to start work on a day which according to the schedule is a working day for an employee.

When applying any of the abovementioned options, it has to be remembered that working under a flexible working time system cannot violate an employee’s right to minimum daily and weekly rest as referred to in Articles 132 and 133 of the Labour Code.

Furthermore, a regulation was introduced pursuant to which, return to work within the same day under the flexible working time system does not constitute overtime. 

3)    Mode of introducing the amendments by the employer

The extension of the working time settlement period and/or the working time schedules providing for various hours to start work is not only dependent on the will of the employer.

 

The introduction of the amendments in question is admissible:

a)   under a collective labour agreement or in agreement with the workplace unions; in the event that is not possible to reach agreement on the terms with all of the workplace unions, the employer will agree on the terms with the representative union organizations pursuant Article 24125a of the Labour Code, or

b)   in agreement with the representatives of the employees appointed under the procedure in place at the given employer - if there are no unions operating at a given employer.

 

Employers will be additionally obliged to submit to the competent district NLI officer a copy of the agreement regarding extension of the working time reference period within
5 business days from conclusion of the agreement.

 

As regards flexible working time, it is additionally provided that it is possible to implement such flexible working time system upon a written request of an employee, irrespective of whether or not such working time schedule is agreed under the abovementioned procedures.

 

4)    Other changes introduced by the amendment

In addition to the abovementioned changes, the amendment introduces, among others,
a rule according to which, time making up for a day off does not constitute overtime in the event that the day off is granted to an employee upon his/her written request in order to deal with personal matters.

 

Furthermore, the issue of drawing up working time schedules is also regulated. Working time schedules can now be drawn up in written or electronic format, for a period shorter than the reference period, which however has to be a period of at least one month. Employers will be obliged to communicate the working time schedule to their employees at least one week prior to commencement of work in the period for which it is drawn up. Additionally, instances where it is not obligatory to draw up a working time schedule are now also regulated.

Amendments within the scope of parental leave

On 5 September 2013, the Act of 26 July 2013 on the amendment to the Labour Code (hereinafter referred to as “the act” or “the amendment”), which became effective as of
1 October 2013
, was promulgated in the Journal of Laws of the Republic of Poland.

The act aims at adjusting the national law to the law of the European Union within the scope of granting parental leave, in particular by introducing the following amendments:

 

1)    granting an exclusive right to one month of parental leave, allotted out of its total amount, to each of the parents or custodians of the child.

 

The said month shall be allotted from the total amount of parental leave, which, as of the date of the amendment becoming effective, shall amount to a maximum of 36 months (currently its length is calculated in years and it amounts to 3 years).

 

The exclusiveness of this right will be reflected in the fact that there will be no possibility to transfer it onto the other parent or custodian of the child. To provide an example, it may be indicated that in the event that one of the parents does not use their non-transferable part of the parental leave, the total amount of the parental leave granted with regard to a given child shall amount to a maximum of 35 months; whereas, in the event that none of the parents uses this right - the amount of the parental leave shall amount to a maximum of 34 months.

 

However, in the event that the other parent is deceased, does not hold parental authority, has been deprived of parental authority or such authority has been limited or suspended, or in the event that the child remains under custody of an only custodian, the amount of parental leave granted to the this person shall amount to 36 months.

 

2)    increasing the amount of parental leave which may be used by both parents simultaneously from 3 months up to 4 months.

 

3)    enabling that the parental leave may be used in no more than five parts (currently the parental leave may be used in no more than four parts).

 

4)    adopting a principle according to which the period of limitation for claim for holiday leave does not start running, and the already started period becomes suspended for the time of the parental leave.

The said principle aims at enabling that an employee, after having concluded the parental leave, may take a holiday leave, the right to which had been acquired by the employee prior to the parental leave.

 

5)    introducing the right to a full statutory annual leave with regard to a parent who comes back to work within the same calendar year, in which year he or she commenced an at least one-month parental leave.

 

The amendment has been introduced by deleting the parental leave from the list set out in Article 1552 § 2 of the Labour Code. Thus, the mechanism of a proportional decrease in the amount of the statutory annual leave will no longer apply. This rule, however, does not apply when an employee comes back to work after an at least one-month parental leave within the calendar year following the year, in which he or she started the parental leave.


New anti-crisis law

On 06 November 2013, the act of 11 October 2013 on particular measures of protection of jobs, hereinafter referred to as “the act”, was promulgated in the Journal of Laws of the Republic of Poland. The act became effective 14 days after its promulgation, i.e. on 21 November 2013.

he measures adopted in the act are to contribute to the prevention of job losses by enabling the employers to introduce one of the two mechanisms:

  • economic slowdown or
  • reduced working time, without the necessity to give notice of termination amending the contract of employment.

It will be possible for the employer to determine the conditions and procedures for the performance of work during the period of economic slowdown or reduced working hours in a collective labour agreement or in agreement with enterprise trade unions, and in the event that such unions do not operate under a given employer, the content of the agreement should be agreed with the represented organizations or with the representatives of the employees.

The introduced measures will be available to the employers within the meaning of the act on freedom of economic activity, who:

  • suffer from a specific decline in economic turnover, (in total no less than by 15% within the time frame and upon conditions specified in the act),
  • have no tax arrears or arrears in the payment of social insurance contributions (save for the cases set out in the act, e.g. entering into an agreement with Social Insurance Institution ZUS or obtaining a decision of the tax office on repayment in instalments, under condition of making payments on time),
  • with regard to whom there are no preconditions for declaring bankruptcy.

The employer is to be supported by the payouts made from the Guaranteed Employee Benefits Fund for the purpose of partial satisfaction of employees’ remuneration during the period of economic slowdown, for the payment of social insurance contributions as well as for partial compensation of employees’ remuneration on account of reduced working hours. Additionally, it has also been provided for the possibility to co-finance the costs of employees’ training from the Labour Fund.

The application for the award of benefits along with the documents and statements necessary for the conclusion of the agreement for the payment of benefits should be filed by the employer with marshal of voivodeship competent over the entrepreneur’s seat. The application for co-financing of the costs of training of employees covered by the measures for protection of jobs will be filed with the staroste (mayor of a city with district rights) competent over the entrepreneur’s seat.

The employees covered by the measures provided for in the act will be entitled to receive the said benefits for the total period of no more than 6 months within 12 months from the date of signing an agreement for the payment of benefits. These will come in the form of a non-refundable financial support granted as de minimis aid.

As compared to the first anti-crisis law, which has been effective as of the end of 2011, the new act does not provide for regulations related to restrictions on fixed-term agreements. 



 

The views expressed in this document are solely the views of the author and not Martindale-Hubbell. This document is intended for informational purposes only and is not legal advice or a substitute for consultation with a licensed legal professional in a particular case or circumstance.
 

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