The Employment Contract As The Basis For The Employment Relationship In Poland

The Employment Contract As The Basis For The Employment Relationship In Poland - The Issue Of Different Types Of Work Presented by: Dr. Barański Date: 7 June 2023 Introductory Remarks - In the current Constitution of the Republic of Poland, the notion of work has been included in various contexts and meanings, with the notion generally being broader than "work" as understood in the Polish Labor Code. According to Article 24 of the Constitution, work (of any kind) is under the protection of the Republic of Poland and the State exercises supervision over the conditions of work. • Constitution of the Republic of Poland of 2 April 1997, Journal of Laws of 1997 r. No 78, item 483 as amended; • Act of 26 June 1974 Labor Code, consolidated text, Journal of Laws of 2020, item 1320, as amended, hereinafter referred to as KP - In Poland, labor law is currently an independent branch of law (within a uniform legal system), separate inter alia from civil law and administrative law. - The subject of labor law does not include social insurance, although there are close relations between labor law and social insurance law. - It should be stressed that labor law has quite strong relations with civil law, from which it is partly derived. - In accordance with art. 300 KP „in cases not regulated by the provisions of labor law, the provisions of the Civil Code apply accordingly to an employment relationship, provided they are not contrary to the principles of labor law". Definition Of The Employment Relationship - According to art. 22 § 1 KP „by establishing an employment relationship, an employee undertakes to perform work of a specified type for the benefit of an employer and under his supervision, in a place and at the times specified by the employer; the employer undertakes to employ the employee in return for remuneration". It is accepted in the literature that labor law is a set of legal norms governing subordinate employment relationships and other legal relationships inherent in them. This specific obligatory relationship, which is the employment relationship, is a central concept in labor law. It is precisely the criterion of the subject of regulation that makes it possible to distinguish labor law as a separate branch of law. - The structural features of an employment relationship are: the need to perform work personally, the employee subordination (it is expressed primarily in the ability to give work instructions to an employee, the employer's risk, the remuneration of work and continuity of work. - The employer bears the negative consequences of the employee's improper work performance. Moreover, in situations specified in the labor law, the employer is obliged to tolerate the employee's absence from work and release the employee from the obligation to provide work (often with retention of the right to remuneration). The employer has specific obligations under the Act of 4 March 1994 on the company social benefits fund (consolidated text, Journal of Laws of 2021, item 746, as amended). As a rule, the employer is also obliged to pay remuneration in cases of disruptions in the functioning of the workplace (situations of over- or under-employment, as well as the inability of employees to provide work). The negative consequences of economic events cannot in principle be shifted to the employee. - Work within the framework of an employment relationship involves the performance of specific activities at repeated intervals during a permanent bond between the employee and the employer. The employee is also obliged to act diligently throughout the work process. - According to art. 2 KP "an employee is a person employed on the basis of an employment contract, an appointment, an election, a nomination or a co-operative employment contract". This list is enumerative (it is not possible to employ the employee on any other basis). - The employment contract is the most common basis for the employment relationship. It is a bilateral legal action, consensual (it comes into effect through the mere making of consensual declarations of intent), bilaterally binding, and pecuniary. Functions Of Labor Law - Labor law has two primary functions characteristic of this branch of law: a protective function and an organizational function. The Protective Function Of Labor Law - The protective function of labor law stems from the need to establish, at the level of universally binding legislation, specific guarantees and benefits for employees, since the employee, as the weaker party in the employment relationship, cannot safeguard his professional and social interests on his own. The protective function manifests itself primarily in the principle of preference for the employee (described in my chapter), as well as the general and specific protection of the permanence of the employment relationship, wage guarantees and compulsory annual leave (labor law defines a minimum of rights and a maximum of obligations for the employee). The Organizational Function Of Labor Law - The organizational function of labor law, on the other hand, is to ensure the efficient organization of teamwork processes by defining the powers of management and the duties of employees, the legal measures to counteract their violation, as well as the role of the representative bodies of the workforce and the forms of their interaction with the management of workplaces. Other Types Of Work - It is common in both jurisprudence and literature to contrast employment relationships with other types of work. The employment relationship, as a legal relationship governed by labor law, has a specific legal character which distinguishes it, for example, from civil law relationships, administrative law relationships (work relationships in which officers of militarized formations remain in connection with the performance of a specific service), and criminal law relationships (work under conditions of compulsion). - In the Supreme Court's view, the work does not have to be of an employee nature. According to K.W. Baran, "non-employment work includes all non-incidental provision of work except for classically conceived employment of a legal- employee nature". • Judgment of the Supreme Court of 7 October 2004, II PK 29/04, LEX nr 145435. See also judgment of the Supreme Court of 9 December 1999, I PKN 432/99, LEX nr 39601. • Baran, K.W. (ed.) (2015) System Prawa Pracy. Tom VII. Zatrudnienie niepracownicze. 1st Warszawa: Wolters Kluwer Polska. - Persons who work under civil law contracts (e.g. under a contract of mandate) do not acquire the status of an employee (they perform work under the so-called nonemployment of the civil law type subject to the regime of civil law). - Work under the conditions specified in art. 22 § 1 KP is considered work on the basis of an employment relationship, regardless of the name of the contract concluded between the parties (art. 22 § 1[1] ΚΡ). - Employment contracts cannot be replaced with a civil law contract where the conditions of the performance of work specified in § 1 remain intact (art. 22 § 1[2] KP). In its judgment of 7 June 2017, the Supreme Court emphasized that by the parties' will, the basis of work cannot be changed when the employee performs the activities specified in the contract falls within the regime of art. 22 § 1 ΚΡ. • Judgment of the Supreme Court of 7 June 2017, I PK 176/16, LEX nr 2300072. See also judgment of the Supreme, of 14 September 1998, I PKN 334/98, LEX nr 37685. Difficulties In Identifying The Legal Nature - Example: graduates' internships - Civil law contract? - The graduates' internship was characterized differently in the labor law practice, considering it to be a non-employee work with a possible component of the graduate's subordinated work towards the internship organizer. - Or perhaps a labor law contract, but not the basis of the employment relationship? - Provisions of the Act on graduates' internships give rise to significant interpretationrelated doubts, first and foremost due to the absence of any univocal and comprehensive determination of the legal regime of the graduates' internship agreement by the legislators. This agreement is also highly similar to the contract of employment executed with an adolescent worker to prepare them for work and may precede the establishment of the employment relationship. - The provisions of labor law do not apply to the graduates' internship, apart from certain anti- discrimination, health and safety, working time provisions. It is due to this provision that most scarce opinions of legal practitioners referring to the legal regime of the agreement for a graduate's apprenticeship share the view of the civil law nature of the said agreement. It should be stressed here that the views are not supported by any detailed analyses. - Some other examples: • Self-employment (the entrepreneur's work under conditions of economic dependence), • Cottage industry (manufacturing activity carried on in people's homes), • Management contract (e.g. A contract concluded with the president of a company), • Work through online platforms.