Draft Act amending the Labor Code and some other acts

In the list of legislative and program works of the Council of Ministers under the number UC118, the assumptions for the draft act amending the Act of Labour Code and some other acts (hereinafter: the "Draft Act") implementing the Directive of the European Parliament and of the Council (EU) 2019/1152 into the Polish legal system of 20 June 2019 on transparent and predictable working conditions in the European Union (Journal of Laws of the European Union L No. 186, p. 105) (hereinafter: the "Transparent Conditions Directive" or "Directive"). The deadline for implementing the provisions of the Directive is August 1, 2022.

The Transparency Directive aims to improve working conditions by promoting more transparent and predictable employment while ensuring the adaptability of the labour market. The authority responsible for the development of the Draft Act in connection with the implementation of the Directive is the Ministry of Family and Social Policy, and according to the information on the government website, the planned date of adoption of the draft by the Council of Ministers is the second quarter of 2022.

The directive lays down minimum rights applicable to every worker in the European Union who is party to an employment contract or employment relationship, as defined by the law in force in individual Member States. Implementation of the provisions of the Directive on transparent conditions will consist in introducing changes in the area of ​​concluding employment contracts for a trial period, as well as changes consisting in extending the right of employees to more complete and updated information on employment conditions and introducing new minimum rights for all employees.

Extending the scope of information on the terms of employment of an employee

One of the assumptions of the Draft Act is to extend the scope of information on the terms of employment of an employee, which will include additional elements provided for in the Directive on transparent conditions. By way of example:

• the employer will be obliged to inform the employee about trainings and to cover the costs of compulsory training necessary to perform work in a given position;
• it will be necessary to indicate in the employment contract the seat of the employer, and in the case of an employer who is a natural person - the address of residence;
• in the absence of a permanent or main workplace, the principle will be introduced that the employee is employed in different places or that he is free to determine his workplace.

The extension of the above-mentioned, exemplary scope of information will also apply to an employee sent to work to a Member State or a third country, and to a posted worker.

Changes to the employment contract for a trial period

As regards the employment contract for a trial period, the employer will be obliged to comply with the following assumptions:

• the employer will be obliged to ensure that the probationary period is commensurate with the estimated duration of the fixed-term employment contract and the type of work;
• re-conclusion of an employment contract for a trial period with the same employee will only be possible if the employee is employed to perform a different type of work than that performed under a previously concluded trial-time employment contract;
• regulations will be introduced to enable the parties to the employment relationship to agree to extend the employment contract for a trial period for the duration of the employee's absence from work, if the employee was absent for justified reasons during the term of the contract.

Ensuring the employee's right to parallel employment and the right to submit an application for safer working conditions

The employee, by implementing the provisions of the Directive on transparent conditions, will gain the right to parallel employment by introducing into the Labor Code the obligation for the employer to respect the prohibition of the employee from being simultaneously employed by another employer and the prohibition of subjecting the employee to unfavourable treatment on this account. As indicated in recital 29 of the Directive: "the employer should not prohibit an employee from taking up employment with other employers outside the schedule of working time agreed with that employer, nor should he unfavourably treat the employee for this reason".

In addition, an employee who has been working for at least 6 months with the same employer (including under a trial-period employment contract) will have the right to request the employer to change the form of employment to one with more predictable or safer working conditions. The right to submit such a request will be possible once a calendar year. The draft act will oblige employers to provide a written reply, together with a justification, to the above-mentioned request within one month of its receipt. Under the provisions of the Directive with regard to natural persons acting as employers and small and medium-sized enterprises, Member States may provide for an extension of the deadline for response by no more than three months and allow an oral response to another similar request from the same employee, if the reasons for the response regarding the employee's situation remains unchanged.

The right to necessary free training

In the assumptions to the Draft Act, the legislator emphasizes that it is planned to introduce a provision that will ensure that in the event that, under EU law, national law, collective agreements or regulations, the employer is obliged to provide the employee with training necessary to perform a specific type of work or to perform work in a specific position at which he was employed. Such training will have to be provided to the employee free of charge (the costs of such training will not be chargeable to the employee or deducted from their salary), and the time spent on such training, which, if possible, should take place during working hours, will be included in the working time. This will also apply to training carried out by the employee on the basis of the supervisor's order.

Speech by the European Commission

In addition, as stated in the assumptions to the Draft Act, in connection with the European Commission request regarding the unjustified unequal treatment in terms of the terms of terminating employment contracts for fixed-term workers compared to workers employed for an indefinite period, the applicable regulations on the termination of employment contracts for a specified period will be modified in order to adjust them to the requirements of European Union law.

The Ministry of Family and Social Policy declared that the provisions on terminating fixed-term employment contracts would be adjusted to the requirements of European Union law while working on the implementation of the provisions of the Directive on transparent terms. The European Commission indicated three aspects of the inequality of fixed-term contracts in relation to open-ended contracts in the regulations:

• no obligation to justify the termination of a fixed-term contract;
• no obligation to consult the trade union;
• no possibility to apply for reinstatement.

As you can read in the published assumptions to the Draft Act: "in connection with the above, the bill in question will also amend the applicable provisions on fixed-term employment contracts, consisting in the introduction of an obligation to justify the termination of a fixed-term employment contract, trade union consultation and the possibility of applying for reinstatement to work - also in the case of concluding a fixed-term employment contract".

Downloads

• PKF Alert - Draft Act amending the Labor Code and some other acts.pdf [PDF]