Outline of Polish Labour Law System Kętrzyn

Tytuł Outline of Polish Labour Law System Autorzy Krzysztof Walczak, Zbigniew Góral, Marcin Wujczyk, Krzysztof Wojciech Baran, Dominika Dörre-Kolasa, Mariusz Lekston, Mirosław Włodarczyk, Dominika Kolasa, M.Bolesław Ćwiertniak Język polski Wydawnictwo Wolters Kluwer Polska SA ISBN 978-83-8092-554-0 Rok wydania 2016 Liczba stron 504 Format pdf Spis treści TITLE ONE GENERAL LABOUR LAW | p. 19 Chapter I The concept and subject-matter of labour law | p. 21 1. Definitions of labour law | p. 21 2. Classification of labour law | p. 24 3. Characteristics of labour law | p. 25 3.1. General notes | p. 25 3.2. Uniformity and differentiation of labour law | p. 26 3.3. Europeanisation of labour law | p. 26 Chapter II Labour law in the Polish legal system | p. 28 1. General notes | p. 28 2. Labour law and civil law | p. 28 3. Labour law and social insurance law | p. 29 4. Labour law and copyright law | p. 30 5. Labour law and constitutional law | p. 30 6. Labour law and administrative law | p. 31 7. Labour law and criminal law | p. 31 8. Labour law and international law | p. 32 Chapter III Functions of labour law | p. 33 1. Overview of functions of labour law | p. 33 2. Protective function of labour law | p. 34 3. Organisational function of labour law | p. 35 4. Irenic function of labour law | p. 36 5. Redistributive function of labour law | p. 38 Chapter IV Interpretation of provisions of labour law | p. 40 1. The concept and subject-matter of interpretation of labour laws | p. 40 2. Types of interpretation of labour law provisions | p. 41 3. Process of interpretation of labour laws | p. 42 4. Loopholes in labour law | p. 43 Chapter V Principles of labour law | p. 45 1. The concept and meaning of labour law principles in the Polish labour law doctrine | p. 45 2. Systematisation of the principles of labour law | p. 47 3. Functions of labour law principles | p. 49 4. Characteristics of fundamental principles of labour law set out in the Labour Code | p. 51 4.1. Principle of the right to work and the freedom of labour | p. 51 4.2. Principle of freedom to enter employment relationship and to determine the terms of employment | p. 54 4.3. Principle of respect by an employer of employee's dignity and of other employee's personal rights | p. 56 4.4. Principle of equal treatment and non-discrimination in employment | p. 59 4.5. Principle of the right to fair remuneration for work | p. 60 4.6. Principle of the right to rest | p. 63 4.7. Principle of provision by an employer of safe and healthy working conditions | p. 65 4.8. Principle of meeting the vital, social and cultural needs of employees | p. 67 4.9. Principle of facilitation of skills upgrading | p. 68 4.10. Favourability principle (zasada uprzywilejowania pracownika) | p. 69 4.11. Fundamental principles of collective labour law | p. 72 Chapter VI Overview of the history of the Polish labour law | p. 74 Chapter VII Equal treatment in employment | p. 78 1. The concept of equal treatment | p. 78 2. Principle of equal treatment in employment | p. 79 3. Forms of discrimination | p. 79 4. Harassment and sexual harassment | p. 80 5. Justified differentiation | p. 81 6. Consequences of breach of the principle of equal treatment in employment | p. 81 Chapter VIII Sources of labour law | p. 83 1. The concept and hierarchy of sources of labour law | p. 83 2. General sources of labour law | p. 85 2.1. Constitution of the Republic of Poland | p. 85 2.2. Acts/laws (ustawy) | p. 86 2.3. Regulations (rozporządzenia) | p. 88 3. Specific sources of labour law | p. 89 3.1. Collective agreements | p. 89 3.1.1. Legal nature of collective agreements | p. 89 3.1.2. Personal scope of collective agreements | p. 90 3.1.3. Material scope of collective agreements | p. 91 3.1.4. Procedures for the conclusion of collective agreements | p. 93 3.1.5. Registration of collective agreements | p. 94 3.1.6. Entry into force of collective agreements | p. 96 3.1.7. Transformations of collective agreements | p. 96 3.1.8. Termination of collective agreements | p. 97 3.1.9. Sectoral collective agreements (ponadzakładowe układy zbiorowe pracy) | p. 99 3.1.10. Company-level collective agreements (zakładowe układy zbiorowe pracy) | p. 100 3.2. Agreements in connection with transfer of business to a new employer | p. 102 3.3. Agreement on suspension of provisions of labour law | p. 103 3.4. Agreements on application of less favourable terms and conditions of employment | p. 104 3.5. Teleworking agreements | p. 105 3.6. Social agreements (porozumienia społeczne) 1 | p. 05 4. Internal regulations | p. 106 4.1. Internal rules (regulaminy) | p. 106 4.1.1. Wage rules (regulamin wynagradzania) | p. 107 4.1.2. Work rules (regulamin pracy) | p. 109 4.2. Statutes (statuty) | p. 110 5. International labour law | p. 111 5.1. International labour regulations | p. 112 5.2. Labour law of the Council of Europe | p. 113 5.3. Legal acts adopted in the European Union and their effect | p. 114 5.4. Areas covered by European labour law | p. 116 TITLE TWO INDIVIDUAL LABOUR LAW | p. 119 Chapter IX Employment relationship | p. 121 1. Concept and nature of employment relationship | p. 121 1.1. Concepts of employment relationship | p. 121 1.2. Characteristics of employment relationship | p. 122 2. Labour law employment relationship (stosunek pracy) and other employment relationships (stosunki zatrudnienia) | p. 125 2.1. The concepts of "self-employment" and "employment" | p. 125 2.2. Types of non-employee employment (employment not between an employee and an employer) | p. 126 2.3. Elements of the labour law employment relationship | p. 129 3. Parties to the labour law employment relationship | p. 130 3.1. General notes | p. 130 3.2. Employee | p. 132 3.3. The concept of an employer | p. 133 3.4. Employer - a natural person | p. 134 3.5. Employer - an organisational unit | p. 135 3.6. Representation of an employer being an organisational unit | p. 138 Chapter X Contract of employment | p. 140 1. Internal and external recruitment | p. 140 2. Protection of personal data of job candidates and employees | p. 140 3. Types of contracts of employment | p. 142 3.1. Contract for a probationary period (umowa na okres próbny) | p. 142 3.2. Contract for a fixed term (umowa na czas określony) | p. 143 3.3. Contract of employment for an indefinite term (umowa o pracę na czas nieokreślony) | p. 144 4. Telework | p. 144 5. Contents of a contract of employment | p. 145 Chapter XI Transformations of an employment relationship | p. 147 1. Change of an employment relationship | p. 147 2. Agreement to amend the terms and conditions of employment (porozumienie zmieniające) | p. 150 3. Notice of amendment of the terms and conditions of a contract of employment (wypowiedzenie zmieniające warunki umowy o pracę) | p. 152 4. Assignment of an employee to other work | p. 162 5. Temporary change of terms and conditions of a contract of employment resulting from specific regulations | p. 166 Chapter XII Termination of an employment relationship | p. 168 1. Introduction | p. 168 2. Agreement between the parties | p. 169 3. Restrictions on termination of a contract of employment | p. 169 3.1. General protection of sustainability of an employment relationship | p. 169 3.2. Consultation (with a company trade union organisation) of the intention to terminate a contract for an indefinite term | p. 170 3.3. Consultation (with a company trade union organisation) of the intention to terminate a contract of employment without notice | p. 172 3.4. Special protection of sustainability of an employment relationship | p. 173 3.5. Restrictions on termination of a contract of employment by reason of personal or family situation of an employee | p. 173 3.5.1. Protection of the employment relationship during a pre-retirement period | p. 173 3.5.2. Protection of the employment relationship during a period of excusable absence | p. 174 3.5.3. Protection of the employment relationship of pregnant women or women during maternity leave | p. 175 3.6. Restrictions on termination of a contract of employment based on the employee's function | p. 176 3.6.1. Special protection of sustainability of the employment relationship of employees performing trade union functions | p. 176 3.6.2. Special protection of sustainability of the employment relationship of members of workers' council | p. 184 3.6.3. Special protection of sustainability of the employment relationship of a social labour inspector | p. 185 4. Termination of a contract of employment upon notice | p. 185 4.1. Notice of termination of a contract of employment as a unilateral declaration of will | p. 185 4.2. Scope of application of a notice of termination as a method of termination of a contract of employment | p. 188 4.3. Formal requirements | p. 189 4.4. Notice periods for termination of a contract of employment | p. 193 4.5. Reduction of a notice period | p. 196 4.6. Job-search leave of absence (zwolnienie na poszukiwanie pracy) | p. 198 5. Termination of a contract of employment without notice | p. 199 5.1. Termination of a contract of employment without notice by an employer | p. 200 5.1.1. Termination of a contract of employment without notice by an employer for reasons attributable to an employee | p. 200 5.1.2. Termination of a contract of employment without notice by an employer for reasons not attributable to an employee | p. 203 5.2. Termination of a contract of employment without notice by an employee | p. 205 5.2.1. Termination of a contract of employment without notice by an employee for reasons not attributable to an employer | p. 205 5.2.2. Termination of a contract of employment without notice by an employee for reasons attributable to an employer | p. 206 6. Legal consequences of defective termination of a contract of employment | p. 207 6.1. Legal consequences of defective termination of a contract of employment upon notice | p. 207 6.2. Legal consequences of defective termination of a contract of employment without notice by an employer | p. 210 6.3. Legal consequences of defective termination of a contract of employment without notice by an employee | p. 212 7. Other cases of termination of a contract of employment by an employee | p. 213 7.1. Termination of a contract of employment in connection with reinstatement | p. 213 7.2. Termination of a contract of employment in connection with acquisition of an employee by a new employer | p. 215 8. Expiration of a contract of employment | p. 215 8.1. Death of an employee | p. 215 8.2. Death of an employer | p. 215 8.3. Employee's absence from work caused by pre-trial detention | p. 215 8.4. Claims in connection with expiration of an employment relationship | p. 216 Chapter XIII Transfer of an establishment to another employer | p. 217 1. The concept of transfer of an establishment or a part of an establishment to another employer | p. 217 2. Succession of obligations | p. 218 3. Negotiations with an employees' representation and information obligation in the absence of trade unions | p. 219 4. Rights of employees | p. 220 Chapter XIV Employment of temporary agency workers | p. 222 1. Introduction | p. 222 2. Restrictions on temporary agency work | p. 222 2.1. Material restrictions | p. 223 2.2. Time restrictions of temporary agency work | p. 223 2.3. Personal restrictions | p. 224 2.3.1. User-employer | p. 224 2.3.2. Temporary-work agency | p. 225 3. Conclusion and content of a temporary work contract | p. 225 4. Protection of a temporary agency worker against discrimination | p. 228 Chapter XV Non-contractual employment relationships | p. 229 1. The concept and classification of non-contractual employment relationships | p. 229 1.1. The concept and origins of non-contractual employment relationships | p. 229 1.2. Classification of non-contractual employment relationships | p. 231 2. Employment relationship by election (wybór) | p. 231 2.1. The scope of employment relationships by election | p. 231 2.2. Legal nature of an employment relationship by election | p. 232 2.3. Establishment of an employment relationship by election | p. 233 2.4. Admissibility of amendment of the terms and conditions of employment by election | p. 234 2.5. Ending the employment relationship by election | p. 234 2.6. Rights and obligations of elected employees | p. 236 3. Employment relationship by appointment (powołanie) | p. 237 3.1. The scope of employment relationships by appointment | p. 237 3.2. Legal nature of the act of appointment | p. 239 3.3. Establishment of an employment relationship by appointment | p. 240 3.4. Admissibility of amendment of the terms and conditions of employment by appointment | p. 241 3.5. Ending the employment relationship by appointment | p. 243 3.6. Terms of employment relationship of appointed employees | p. 245 4. Employment relationship by nomination (mianowanie) | p. 246 4.1. The scope of employment relationships by nomination | p. 246 4.2. Legal nature of the act of nomination | p. 247 4.3. Establishment of an employment relationship by nomination | p. 248 4.4. Amendment of the terms and conditions of employment by nomination | p. 250 4.5. Ending the employment relationship of nominated employees | p. 252 4.6. Terms of employment relationship of nominated employees | p. 254 Chapter XVI Rights and obligations of the parties to an employment relationship | p. 256 1. Obligations of an employer | p. 256 1.1. Information obligation | p. 256 1.2. Obligation to properly organise work | p. 259 1.3. Obligation to prevent discrimination | p. 260 1.4. Obligation to ensure safe and healthy working conditions | p. 261 1.5. Obligation to pay wages timely and properly | p. 261 1.6. Obligation to facilitate upgrading of professional skills | p. 262 1.7. Obligation to create an environment conducive to adaptation to proper performance of work | p. 262 1.8. Obligation to meet social needs of employees | p. 263 1.9. Obligation to apply objective and fair criteria of evaluating employees | p. 263 1.10. Obligation to keep documentation and personnel files | p. 264 1.11. Obligation to foster development of the rules of social coexistence in the workplace | p. 264 1.12. Obligation to prevent mobbing | p. 265 1.13. Obligation to issue an employment certificate (świadectwo pracy) | p. 267 1.13.1. Contents of an employment certificate | p. 269 1.13.2. Legal fictions in the employment certificate | p. 269 1.13.3. Procedure for rectification of the employment certificate | p. 270 2. Claim for compensation | p. 271 3. Obligations of an employee | p. 272 3.1. Obligation to perform work diligently and with due care | p. 272 3.2. Obligation to comply with superiors' instructions | p. 273 3.3. Employee's obligations relating to order at the workplace | p. 274 3.4. Obligation to have regard for the welfare of the establishment | p. 275 3.5. Obligation of secrecy | p. 277 3.6. Obligation to comply with the rules of social coexistence | p. 278 Chapter XVII Non-compete obligation | p. 280 1. General principles | p. 280 2. Restrictions on competitive activity in the absence of non-compete agreement | p. 281 3. Non-compete agreement during the term of employment relationship | p. 282 4. Post-employment non-compete agreement | p. 282 Chapter XVIII Remuneration for work | p. 285 1. Legal bases for wage setting | p. 285 2. Prohibition of wage discrimination | p. 288 3. Protection of remuneration for work | p. 289 3.1. Rules of payment of remuneration | p. 289 3.2. Restrictions on deductions from remuneration | p. 290 4. Benefits in the case of non-performance of work | p. 291 5. Benefits payable to an employee in connection with ending an employment relationship | p. 293 6. Protection of employees' claims in case of the employer's insolvency | p. 294 Chapter XIX Working time | p. 296 1. The concept of working time | p. 296 2. Number of working hours | p. 297 3. Rest period | p. 298 4. Working time systems 2 | p. 98 5. Overtime work | p. 302 6. Duty hours | p. 304 7. Working time of managers | p. 305 8. Work at night | p. 306 9. Work on Sundays and on public holidays | p. 307 Chapter XX Leaves | p. 309 1. Annual leave | p. 309 1.1. Essential elements of the concept of annual leave | p. 309 1.2. Acquisition of right to the annual leave | p. 310 1.3. Amount of the annual leave | p. 310 1.4. Rules for granting of leave | p. 312 1.5. Deferral of the leave in unforeseen circumstances | p. 313 1.6. Proportionate leave | p. 315 1.7. Leave on demand | p. 315 1.8. Termination of a contract of employment and the right to annual leave | p. 316 2. Unpaid leave | p. 316 3. Special leaves (zwolnienia okolicznościowe) | p. 317 Chapter XXI Liability for breach of order at the workplace and disciplinary liability | p. 319 1. General notes | p. 319 2. Liability for breach of order at the workplace (odpowiedzialność porządkowa) | p. 319 2.1. Legal nature and conditions of liability for breach of order at the workplace | p. 319 2.2. Infringements and penalties for breach of order at the workplace | p. 320 2.3. Procedure for imposing penalties for breach of order at the workplace | p. 321 2.4. Appeals procedure | p. 324 2.5. Declaring the penalty null and void | p. 325 3. Disciplinary liability (odpowiedzialność dyscyplinarna) | p. 326 3.1. Personal scope and conditions of disciplinary liability | p. 326 3.2. Types of disciplinary penalties | p. 327 3.3. Disciplinary boards and disciplinary prosecutor | p. 328 3.4. Disciplinary procedure and judicial review of disciplinary decisions | p. 328 3.5. Deletion of penalty from files (zatarcie kary) | p. 329 3.6. Minor infringements | p. 330 Chapter XXII Financial liability of employees | p. 331 1. Legal nature and conditions of financial liability of employees | p. 331 2. Financial liability for the damage caused by the employee unintentionally | p. 335 3. Financial liability for the damage caused by the employee intentionally | p. 336 4. Liability for damage caused to a third party | p. 337 5. Responsibility for the entrusted property | p. 338 5.1. Financial liability for the damage caused by the employee to the entrusted property | p. 338 5.2. Mitigation of liability for the entrusted property | p. 341 5.3. Joint liability of employees for the entrusted property | p. 343 6. Limitation of claims | p. 345 Chapter XXIII General protection of labour | p. 346 1. Introduction | p. 346 2. Basic obligations of an employer in respect of the occupational health and safety (OHS) | p. 347 2.1. Responsibility for health and safety at work | p. 347 2.2. Obligation to cooperate with other employers | p. 347 2.3. Training obligation | p. 348 2.4. Obligation to familiarise the employees with OHS rules and regulations | p. 348 2.5. Obligations in respect of preventive health care of employees | p. 348 2.5.1. Obligation to inform of occupational risk | p. 348 2.5.2. Obligation to prevent occupational diseases and other work-related diseases | p. 349 2.5.3. Obligation to perform preventive medical examinations | p. 350 2.6. Obligation to provide employees with supportive drinks and meals | p. 351 2.7. Obligation to provide employees with appropriate hygiene and sanitary facilities and necessary personal hygiene and sanitary products | p. 351 2.8. Other obligations of the employer | p. 352 3. Rights and obligations of employees in respect of occupational health and safety | p. 352 3.1. Right to refrain from work | p. 352 3.2. Obligation to comply with OHS rules and regulations | p. 353 4. Labour protection bodies | p. 355 4.1. OHS service | p. 355 4.2. Occupational health and safety commission | p. 356 4.3. Consultations on occupational health and safety | p. 356 5. Compensation for property lost or damaged in connection with an accident at work | p. 357 Chapter XXIV Protection of parenthood | p. 358 1. Introduction | p. 358 2. Prohibition on the employment of women in work which is particularly arduous or harmful to health | p. 359 3. Principles of employment of pregnant workers | p. 360 4. Leaves connected with raising children | p. 361 5. Rights of employees raising children | p. 364 6. Special protection of sustainability of employment relationship | p. 365 Chapter XXV Employment and protection of work of young people and children | p. 367 1. Employment of adolescents | p. 367 1.1. Introduction | p. 367 1.2. Contract of employment for vocational preparation (umowa o pracę w celu przygotowania zawodowego) | p. 369 1.3. Protection of health of young workers | p. 371 1.4. Employment of adolescents under a contract of employment for performing light-duty work | p. 372 2. Employment of children below 16 years of age | p. 373 TITLE THREE COLLECTIVE LABOUR LAW | p. 377 Chapter XXVI Freedom of association | p. 379 1. Introduction | p. 379 2. Freedom of association in trade unions and employers' organisations | p. 380 2.1. Freedom of association in trade unions | p. 380 2.2. Freedom of association in employers' organisations | p. 382 2.3. Models of organisation of workers' and employers' movement | p. 383 3. Independence of trade unions and employers' organisations | p. 385 4. Self-governance of trade unions and employers' organisations | p. 388 Chapter XXVII Legal status of trade unions | p. 393 1. Establishment of trade unions | p. 393 2. Registration of trade unions | p. 394 3. Functions of trade unions | p. 396 4. Powers of trade unions | p. 398 Chapter XXVIII Employers' organisations | p. 405 1. Establishment of employers' organisations | p. 405 2. Registration of employers' organisations | p. 406 3. Functions and powers of employers' organisations | p. 407 Chapter XXIX Employee participation | p. 409 1. Introduction | p. 409 2. Ad hoc representatives | p. 409 3. Workers' councils | p. 410 4. European Works Council | p. 413 5. Other forms of employee participation | p. 415 Chapter XXX Social dialogue | p. 416 1. The concept of social dialogue | p. 416 2. Council of Social Dialogue (Rada Dialogu Społecznego) | p. 417 2.1. Competences of the Council of Social Dialogue | p. 418 3. Voivodeship (provincial) councils of social dialogue (wojewódzkie rady dialogu społecznego) | p. 420 4. Social dialogue in the law-making process | p. 421 5. Social dialogue on the labour market | p. 421 6. Social dialogue in matters relating to occupational health and safety | p. 422 7. Participation of representatives of social partners in supervision of public institutions as a form of social dialogue | p. 422 8. Social dialogue in the establishment | p. 424 Chapter XXXI Collective labour disputes | p. 425 1. Introduction | p. 425 2. The subject-matter of a collective labour dispute | p. 426 3. Parties to a collective labour dispute | p. 428 4. Initiation of a collective labour dispute | p. 430 5. Methods of resolving collective labour disputes | p. 430 6. Irenic methods of resolving collective labour disputes | p. 431 6.1. Conciliation | p. 431 6.2. Mediation | p. 433 6.3. Arbitration | p. 434 7. Non-irenic methods of resolving collective labour disputes | p. 436 7.1. Strike | p. 436 7.1.1. Right to strike | p. 436 7.1.2. Restrictions of the right to strike | p. 437 7.1.3. Principles of organisation of a strike | p. 439 7.2. Other industrial actions | p. 443 7.3. Lockout | p. 444 TITLE FOUR PROCEDURAL LABOUR LAW | p. 447 Chapter XXXII Legal protection of labour relations | p. 449 1. Models of legal protection in labour relations | p. 449 2. Out-of-court legal protection bodies | p. 450 3. Labour courts | p. 452 3.1. Organisation of labour courts | p. 452 3.2. Powers of labour courts | p. 453 3.2.1. Introduction | p. 453 3.2.2. Matters involving claims arising from employment relationship | p. 453 3.2.3. Matters involving employment-related claims | p. 454 3.2.4. Matters involving claims arising from other legal relationships to which provisions of labour law apply under separate laws | p. 456 3.2.5. Actions for compensation against an employer in the event of accidents at work and occupational diseases | p. 457 3.2.6. Actions to establish existence or non-existence of a legal relationship or rights under an employment relationship | p. 457 Chapter XXXIII Labour inspection | p. 459 1. Introduction | p. 459 2. National Labour Inspectorate (Państwowa Inspekcja Pracy, PIP) | p. 460 3. Social labour inspection | p. 463 4. Other supervisory and control bodies | p. 464 Chapter XXXIV Limitation of claims and final deadlines | p. 466 1. Introduction | p. 466 2. Limitation of claims (przedawnienie roszczeń) | p. 467 3. Final deadlines (terminy zawite) | p. 474 Chapter XXXV Accidents at work and occupational diseases - an overview | p. 476 1. Introduction | p. 476 2. Accidents at work | p. 477 3. An accident equivalent to an accident at work | p. 480 4. Procedure for determining circumstances and causes of accidents at work | p. 481 5. Occupational diseases | p. 481 6. Benefits in respect of accidents at work and occupational diseases | p. 483 Index | p. 485