In this labour law update we consider a number of valuable employer and employee legal issues which need to be taken into account.
Changes in the labour law:
1. The date of conclusion of an employment contract
2. Posting of employees
3. Types of work forbidden for women
4. Employment on the basis of civil law contracts
5. Minimum remuneration for work
1. The date of conclusion of an employment contract
As of 1 September 2016, in accordance with amended article 29 § 2 of the Labour Code, an employer shall not allow a new employee to commence work until they have concluded a written employment contract. If this is not possible, the employer must confirm the basic elements of the agreement in writing, such as the arrangements concerning the parties to the contract, the type of the contract and conditions, such as the amount of remuneration, time and place of work performance.
According to newly amended article 104³ of the Labour Code, the employer shall also ensure that a new employee is familiar with the content of the workplace regulations prior to the commencement of work.
The amendment implies that the agreement or terms and conditions of employment must be presented to the employee in writing prior to the commencement of work. Previously, this was possible up to the end of the first day of work. The new regulation will facilitate effective control by the National Labour Inspectorate (the PIP), as within the meaning of the amendment, an employee who works in a workplace without a signed employment contract, is working illegally, even if it is his first day of work.
According to the amended article 281 of the Labour Code, an employer who fails to comply with these obligations, shall be liable to a fine from 1,000 up to 30,000 PLN.
Recommendations:
To oblige HR Departments: i) to prepare a contract for a newly hired employee prior to the commencement of work, and ii) to ensure its signing before allowing the employee to work.
2. Posting of employees
As of 18 June 2016, new regulations on the posting of employees provided in the Act on the posting of employees within the framework of the provision of services of 10 June 2016 (the "Act") apply. The Act introduces a number of obligations primarily for employers who post workers to Poland.
The most important duties of the posting employer include:
- designation of the person authorised to contact with the National Labour Inspectorate (the "PIP"): The posting employer is obliged to designate the person empowered: i) to act as intermediary with the PIP; ii) to submit and receive documents or notices from the PIP; iii) to act on behalf of the posting employer in the course of inspections conducted by the PIP. The authorised person shall stay on Polish territory during the period of the employee's posting.
- submission of a declaration to the PIP containing the information necessary to conduct the inspection: The posting employer is obliged to submit a statement in writing or electronic form to the PIP, containing information necessary to carry out inspection in the workplace at the latest on the date of the commencement of posting. The statement shall include the identification data of the posting employer, the expected number of the posted employees to Poland and their identification data, the expected date of commencement and completion of postings, business addresses of the posted workers, the nature of the work performed by the posted workers, the identification data of the contact person, location of the storage of documents of the posted workers.
- storage of documents of the posted employee: During the period of the posting, the posting employer is required to retain the following documentation of a posted employee, on Polish territory, in paper or electronic form: i) a copy of the employment contract; ii) documentation of the working time of the posted worker; and iii) documentation specifying the employee's remuneration along with the amount of deductions made and evidence of remuneration payment.
- submission of documentation on request of the PIP: On request of the PIP, the posting employer is obliged to submit the documents abovementioned (point c) for inspection, their Polish translation/s, not later than five business days from the receipt of the request.
Moreover, within a two year period from the day of work completion by the posted employee, the employer is required to provide the PIP with documents referred to in point c, within
15 business days from the receipt of the request.
Recommendations:
It is recommended to analyse the status of workers currently posted on Polish territory, as well as the addendum of mandatory documentation, and a notification to the PIP.
3. Types of work forbidden for women
As of 3 August 2016, the amendment to article 176 of the Labour Code, which originally prohibited the employment of women in certain professions considered to be particularly onerous or harmful for women's health, applies.
These are specified in the Regulation of the Council of Ministers concerning the list of work types especially onerous or harmful for women's health of 10 September 1996.
These regulations have been declared by the European Commission as incompatible with the provisions of Directive 2002/73/EC amending the Council Directive 76/207/EEC of 9 February 1976 regarding the implementation of the principles of equal treatment of women and men in terms of access to employment, vocational training and promotion, and working conditions.
The amended article 176 of the Labour Code prohibits only pregnant women or nursing mothers from certain types of work.
By the time the new regulation is released, not more than 9 months, the existing Regulation of the Council of Ministers concerning the list of works especially onerous or harmful for women's health of 10 September 1996 remains in force. At present a new regulation has not been issued.
Recommendations:
The workplace regulations shall include a list of professions forbidden to women. Thus, the entry into force of the new regulation and the list of types of work especially onerous or harmful for women's health will result in the necessity to update the workplace regulations in this regard.
4. Employment on the basis of civil law contracts
The Act of 22 July 2016 on amendments to the Act for a minimum remuneration for work and some other acts ("the Act") introduces a minimum hourly rate for some civil law contracts. As of 1 January 2017, a minimum hourly rate will amount to 13 PLN per hour. This rate will be valorised annually just as a minimum monthly remuneration for work.
This regulation will apply to all mandate contracts and contracts on performance of services entered into by an entrepreneur with: a) a natural person that carries on economic activity and does not employ any employees nor enter into contracts with mandataries ("self-employed"); and b) any other natural person that does not carry on economic activity.
A minimum hourly rate will not apply to, among others, contracts where the mandatary decides on the place and time of a contract performance and remuneration is based on commission.
In civil law contracts the mandator shall:
- pay remuneration in cash;
- pay remuneration at least once a month;
- specify the manner of reporting the number of hours worked on performance of mandate or service during the conclusion of a contract. The lack of this provision results in the duty to take information on a number of hours worked from a mandatary in a date preceding a remuneration payment; and
- keep documents confirming the number of hours worked for a three year period from the day when remuneration is due.
The Act provides the prohibition of remuneration (from the minimum hourly rate) renouncement or transfer of such a right to another person. This provision is a protection of a mandatary's income and protection from abuse and attempts to bypass introduced regulations.
When more than one person performs the service, each of them individually has a right to a minimum hourly rate.
In the case of contracts concluded before 2017, by 31 December 2016 each of the parties may turn to the other with a motion to conduct negotiations concerning an agreement on a remuneration adjustment. If during 30 days from the motion application, the parties do not conclude the agreement, each may terminate the contract by notice specified in the contract or a two month notice period.
Recommendations:
It is recommended to analyse current civil law contracts, conduct negotiations for remuneration adjustment and prepare for new duties arising from civil law contracts that will take effect from the beginning of 2017.
5. Minimum remuneration for work
As of 1 January 2017, minimum remuneration for work will be increased up to the amount of 2,000 PLN.
This change will increase the amount of maximum statutory severance pay for employees terminating employment relationships for reasons not related to the employees (amounting to 15 times the current minimum monthly remuneration) and an increased remuneration allowance for night shifts (amounting to 20 % of an hourly rate of pay calculated on the basis of the minimum remuneration for work). Remuneration for a stoppage duration, minimum compensation for discrimination or mobbing at work and an amount to which further deductions from a monthly remuneration may be made, will increase.
Recommendations:
It is recommended that current remuneration structures be analysed and the remuneration adjusted to conform with the statutory requirements for employees with the lowest remuneration.
Originally published as Schoenherr legal insights on 17 October 2016.