On March 23, 2023, the President signed an amendment to the Labour Code, i.e. the Act of March 9, 2023 amending the Labour Code and certain other acts (hereinafter: "Amendment") implementing the Directive of the European Parliament and of the Council (EU) 2019/1152 of June 20, 2019 on transparent and predictable working conditions in the European Union (hereinafter: "Directive on Transparent Working Conditions" or "Directive") into the Polish legal system. The aim of the Directive is to improve working conditions by promoting more transparent and predictable employment.
The Directive establishes minimum rights of every employee in the European Union who is a party to an employment contract or remains in an employment relationship defined by the law applicable in individual Member State. The implementation of the provisions of the Directive on Transparent Working Conditions to the Polish legal system consisted in implementing amendments in the area of concluding employment contracts for a trial period, as well as amendments consisting in extending the scope of information provided by an employer on employment conditions and implementing new minimum rights for all employees.
The provisions regulating the above matter entered into force on April 26, 2023 and are binding in the Polish legal system. Below we will present you the most important amendments.
Expanding the scope of information on the terms and conditions of employment of an employee
One of the solutions implemented under the Amendment is the extension of the scope of information on the conditions of employment. Information on employment conditions provided to the employee from the date of entry into force of the Amendment should additionally include:
- information on training and covering the costs of mandatory training by an employer, necessary to perform work on a given position;
- indication of an employer's seat, and in the case of an employer who is a natural person - the address of residence.
It is worth noting that the Amendment also extended the scope of information that an employer must provide to an employee before an employee leaves for work or in order to perform a business task abroad for a period exceeding 4 consecutive weeks. For example, an employer is obliged to provide information about: the country or countries in which the work outside the country is to be performed; the expected duration of the work outside the country; or the currency in which the remuneration will be paid to an employee while performing work outside the country.
What is important, informing an employee about the terms of employment may be done by indicating in paper or electronic form the relevant provisions of the labor law and social security law. So far, only the written form has been in force.
Changes to an employment contract for a trial and fixed period
The amendment also implemented changes in the scope of contracts for a trial period. Pursuant to the amended Art. 25 of the Labour Code:
- the parties to an employment relationship may agree in an employment contract for a trial period that the contract is extended by the duration of the leave, as well as by the duration of an employee's other justified absence from work, if such absences occur;
- an employment contract for a trial period is concluded for a period not exceeding (i) 1 month - in the case of an intention to conclude an employment contract for a fixed period of less than 6 months, or (ii) 2 months - in the case of an intention to conclude an employment contract for a definite period of time of at least 6 months and less than 12 months;
- the parties to an employment relationship may once extend the periods indicated above in an employment contract for a trial period, but not more than 1 month, provided that it is justified by the type of work.
As it is indicates in the provisions of the Labour Code that if the parties plan to conclude a contract for a fixed period of at least 12 months or a contract for an indefinite period after a contract for a trial period, the length of the trial period should be a maximum of 3 months.
A minor change regarding the fixed-term employment contract implemented by the Amendment is the obligation to include in an employer's statement on termination of a fixed-term employment contract the reason justifying the termination or termination of the contract. An employer is also obliged to notify the trade union representing an employee of the intention to terminate an employment contract concluded for a definite period of time, together with the reasons justifying the termination of the contract. Until the entry into force of the Amendment, i.e. until April 26, 2023, these regulations applied only to contracts for an indefinite period.
Ensuring the right of employees to parallel employment
By implementing the Directive on Transparent Working Conditions, the legislator was obliged to implement a provision into the Labour Code (i) prohibiting an employer from forbidding an employee to work for other employers, outside the working time schedule agreed with that employer, and (ii) ensuring that an employee will not be subjected unfavorable treatment for this reason.
This change was implemented in the new Art. 261 of the Labour Code, according to which an employer may not prohibit an employee from simultaneously remaining in an employment relationship with another employer or simultaneously remaining in a legal relationship that is the basis for the performance of work other than an employment relationship. However, par. 2 of this provision indicates that this prohibition does not apply if separate provisions provide otherwise and when an employee may not conduct activity competitive to an employer or perform work under an employment relationship or on a different basis for the benefit of the entity conducting competitive activity (i.e. in the case of when an employee is subject to a non-compete clause).
The right to apply for a change in the type of employment contract and for safer working conditions
The Amendment implemented an additional entitlement for an employee who worked for at least 6 months with the same employer (including on the basis of an employment contract for a trial period). Such an employee has the right to apply to an employer with an application submitted in paper or electronic form for:
- changing the type of employment contract to an employment contract for an indefinite period; and
- more predictable and secure working conditions, including job changes or full-time employment.
The amendment obliges employers to take such a request into account, if possible. An employer shall provide an employee with a paper or electronic reply for such an application, no later than 1 month from the date of its receipt, taking into account the needs of an employer and an employee. If the application is rejected, an employer informs an employee of the reason for the refusal.
The right to essential, free training
It should also be noted that Art. 9413, according to which, if under the law, collective agreements, work regulations or an employment contract, an employer is obliged to provide an employee with training necessary to perform a specific type of work or to perform work on a specific position in which he was employed, an employer must provide such training to an employee free of charge (the costs of such training cannot be charged to an employee or deducted from the salary), and the time spend on such training, which should preferably take place during working hours, will be included in working time. This also applies to training conducted by an employee on the basis of the manager's order.
Extra work breaks
The Amendment also implemented to the Labour Code additional breaks at work depending on an employee's daily working time. According to the new wording of art. 134 of the Labour Code, an employee has the right to:
- a second work break lasting at least 15 minutes, included in the working time, if an employee's daily workload is longer than 9 working hours,
- a third work break lasting at least 15 minutes, included in the working time, if an employee's daily working time is longer than 16 hours.
These breaks are included in the working time.
Employees protection against dismissal
Implemented Art. 294 § 1 of the Labour Code indicates that the following situations:
- an employee's request to change the type of employment contract to a contract for an indefinite period or more predictable and safe working conditions, including changing the type of work or full-time employment,
- simultaneous employment relationship with another employer, unless restrictions in this respect result from separate regulations or there is a case of non-competition mentioned above,
- exercise of the right to reimbursement of training costs and the inclusion of training time in working time,
may not constitute a reason justifying termination of an employment contract or its termination without notice by an employer, a reason justifying preparation for termination or termination of an employment contract without notice, or a reason for applying an action having an effect equivalent to termination of an employment contract.
In the event of termination of an employment contract or application of an action having an effect equivalent to the termination of an employment contract, the reversed burden of proof will apply, i.e. an employer will have to prove that he was guided by other reasons when terminating an employment contract.
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