Implementation of the provisions of the directive

The latest version of the draft act amending the Labour Code and certain other acts (No. UC118) has been published on the website of the Government Legislation Centre (hereinafter: "Draft Act"). The draft act is intended to implement into the Polish legal order, mainly the Act of 26 June 1974 - Labour Code (Journal of Laws 2022.1510) (hereinafter "Labour Code"), the provisions of Directive (EU) 2019 of the European Parliament and of the Council /1152 of June 20, 2019 on transparent and predictable working conditions in the European Union (hereinafter "the Directive").

In the justification for the proposal of the Directive, the European Commission indicated the following assumptions of the Directive:

• improving workers' access to information on their working conditions;
• improvement of working conditions for all employees, especially in new and non-standard forms of employment, while maintaining the adaptability and innovativeness of the labour market;
• improving compliance with working conditions standards through better enforcement;
• improving transparency on the labour market.

Changes to fixed-term contracts

Changes in the scope of fixed-term contracts are related to the letter of the European Commission on the non-compliance of the provisions of the Labour Code regarding the termination of fixed-term contracts with the provisions of the European Union, in which the European Commission indicated the phenomenon of unjustified unequal treatment of employees employed for a fixed-term contract in the Labour Code towards employees employed for an indefinite period, manifested in the following aspects:

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

Therefore, in order to ensure equal treatment of employees employed on the basis of a fixed-term contract in comparison with employees employed on the basis of an indefinite-term contract, the Draft Act provides for amending the applicable provisions on fixed-term employment contracts by introducing the obligation to justify the termination of the contract, trade union consultations and the possibility of applying for reinstatement.

Changes in employment contracts for a trial period

The applicable provisions of the Labour Code in relation to employment contracts for a trial period stipulate that the contract is concluded for a period not exceeding 3 months. The draft law provides for an exception to the 3-month contract period for a trial period. This exception is to make it possible to introduce a provision to such a contract stating that the employment contract for a trial period is extended by the time of leave, as well as by the time of the employee's other justified absence from work. According to recital 28 of the Directive, this is to enable the employer to "check whether the employee is fit for the task".

In addition, the Draft Act provides for the introduction of a regulation making the length of the trial period dependent on the expected duration of the fixed-term contract. Pursuant to the draft art. 25 § 22 of the Labour Code, the parties will be entitled to conclude an employment contract for a trial period for a period not exceeding:

• 1 month – in the case of an intention to conclude an employment contract for a definite period of less than 6 months;
• 2 months – in the case of an intention to conclude an employment contract for a definite period of at least 6 months but shorter than 12 months.

Pursuant to the proposed changes, re-concluding an employment contract for a trial period with the same employee will be possible only if the employee is to be employed to perform a different type of work. As a side note, it is worth mentioning that under the current legal status, it is also possible to re-conclude an employment contract for a trial period with the same employee for the same type of work after at least 3 years from the date of termination or expiry of the previous employment contract.

The right to simultaneously be employed or work on a different basis

According to Art. 10 of the Labour Code, everyone has the right to freely choose a job and no one, except for the cases specified in the Act, may be prohibited from practicing the profession. It should be emphasized, however, that the current regulations do not directly express the lack of the employer's right to prohibit an employee from being simultaneously employed with another employer. In order to correctly implement the provisions of the Directive, the Draft Act provides for the addition of Art. 261, according to which the employer may not prohibit the employee from simultaneously remaining in an employment relationship with another employer or from simultaneously remaining in a legal relationship that is the basis for the performance of work other than an employment relationship. Pursuant to the assumptions of the Draft Act, this provision will not apply in the event of conclusion of a non-competition agreement, and if separate regulations provide otherwise.

Application for safer working conditions

The draft act provides that an employee who has been working for at least 6 months will be entitled (once per calendar year) to apply to the employer to change the form of employment to one with more predictable or safer working conditions. The employer should, if possible, take into account such an employee's request. It should be emphasized that the above entitlement will not apply to an employee employed under an employment contract for a trial period.

The employer will be obliged to provide the employee with a response to such a request in paper or electronic form no later than within 1 month from the date of its receipt. If the application is rejected, the employer will be obliged to inform the employee of the reason for the refusal.

Extending the scope of the information obligation

According to the Draft Act, the scope of the employer's information obligations will also change. Currently, the scope of the information obligation regarding employment conditions is defined in Art. 29 of the Labour Code. The draft law provides for the amendment of this provision, i.a. by:

• adding to the necessary elements of the employment contract for a trial period the obligation to specify the duration or the date of its termination and, if the parties so agree, the provisions on extending this contract for the time of leave, as well as for the time of the employee's other justified absence from work. In the case of an employment contract for a trial period of less than 12 months, the contract will also have to specify the period for which the parties intend to conclude a fixed-term employment contract;
• obliging the parties to specify in the employment contract the registered office of the employer, and in the case of an employer who is a natural person without a registered office - the address of residence.

In addition, the Draft Act assumes that the employer will be obliged to inform the employee no later than 7 days from the date of admitting the employee to work, e.g. about:

• breaks at work to which the employee is entitled;
• the employee's daily and weekly rest;
• overtime and compensation rules;
• in the case of several places of work – the rules for moving between places of work;
• components of remuneration other than specified in the employment contract and benefits in cash or in kind;
• employer's social security protection;
• the employee's right to training, if the employer provides it, in particular about the general principles of the employer's training policy.

The employer will provide information on the terms and conditions of employment in writing. It will be acceptable to inform employees in electronic form, provided that it is possible to print and store the information made available.

Other changes

In addition, the Draft Act assumes that if the employer is obliged to conduct training necessary to perform a specific type of work or work in a specific position, which results from the provisions of a collective labour agreement, other collective agreement, from the regulations or from the law or an agreement for employment, as well as in the case of training conducted by the employee on the basis of the superior's order, such training will be held at the expense of the employer and, if possible, during the employee's working hours. It should be emphasized that the time of training held after the employee's working hours will be included in the working time.

The draft act provides that the period of the employee's break included in the working time will also change. According to the draft regulations, an employee whose working time is longer than:

• 9 hours will be entitled to a second break at work, lasting at least 15 minutes,
• 16 hours will entitle you to a third break from work, lasting at least 15 minutes.

Additionally, in accordance with the draft art. 183e of the Labour Code, the exercise by an employee of the rights due to violation of the provisions of labour law, including the principle of equal treatment in employment, cannot be the basis for any unfavourable treatment of the employee. As can be read in the explanatory memorandum to the Draft Act, "the draft provision will have a wide scope, as it will concern the protection of an employee against unfavourable treatment or negative consequences, in particular termination of the employment relationship or its termination without notice by the employer, in the case of exercising all rights under the labour law (…).” Under the current legal status, the employee is entitled to protection only in the event of exercising the rights due to the violation of the principle of equal treatment in employment.

Entry into force

According to the assumptions, the Draft Act is to enter into force on August 1, 2022. Thus, compliance with Art. 21 sec. 1 of the Directive, which states that Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with the Directive by August 1, 2022.