Consultations Before Decision by Parent Company
A consultation of collective redundancy with works council must be held before a decision is taken, even if the decision is not taken by the employer, but by the group. This rule follows from Art . 2 Sec. 4 of the Directive on collective redundancies. It has been recently referred to by the European Court of Justice in the Akavan v. Fujitsu Siemens
Challenging Union Rights
A recent judgment of the Supreme Court (of 7 April 2010; II PK 342/09) allows the employer to sue a union activist to establish his/her rights, for example whether the number of hours claimed for union work is substantiated by the number of members. In such a suit the number of union members is subject to verification by the court.
The judgment is currently known from the press only. Under Polish law, courts are not legally obligated to follow Supreme Court judgments.
Rome I and Terms of Employment
Employers who post employees abroad should check which terms of employment they should provide to them at the level required by the law of the country of posting. They should make sure whether, under the new Regulation No. 593/2008 on the Law Applicable to Contractual Obligations ("Rome I"), which came into force on 17 December
Additional Maternity Leave
Since 1 January 2010, employees have the right to additional maternity leave. It may be used either by the mother or - in certain situations - by the father. In 2010 and 2011 the additional leave for mothers amounts to 2 weeks in the case of single births and 3 weeks in the case of multiple births. For fathers it is 1 week. The employee should apply for this leave at least 7 days in advance. An employee using this leave has the right to work during the leave, however, at no more than half-time.
Restrictions on Temporary Work Discontinued
As of 24 January 2010 employers who conducted collective redundancies will not be restricted in the use of temporary work. However, it is still not allowed to use temporary work in the positions from which employees were dismissed for economic reasons. Also the company will be able to use a temporary worker for up to 18 months instead of 12 months.
Increase in Average Remuneration: No Need to Consult
Companies no longer have to consult the index of increase in average remuneration with the unions. This is the most important consequence of the abrogation of the Act on the Negotiating System for Determining the Increase in Average Remuneration at Companies as of 1 January 2010. Also, the Tripartite Commission (government, unions, employers' organizations) will no longer establish such an index at the national level. For the
Accidents at Work Insurance
Companies will be obliged to pay premiums for accident insurance for all civil contractors. Until 2010 these contributions did not have to be paid for contractors working outside the company's seat or outside the place where the company conducts business. This results from the amendment to the Act on the Social Security System coming into force as of 1 January 2010.
Employment Documents in Foreign Language
From 15 October 2009 employment documents (employment agreements, notices of termination, etc.) for an employee who is not a Polish citizen may be prepared in a foreign language spoken by the employee. The employer should inform the employee about the right to receive employment documents in Polish but the employee can select a foreign language. His request is then binding. This is a result of an amendment of the Act on Polish Language of 27 August 2009 (Journal of Laws No. 161, Item 1280). In respect to Polish employees, the law now sets forth the rule that when employment documents are bilingual (in Polish and in another language), the Polish version shall always prevail.
Expenses Incurred to Finance Trade Union Activities Not Deductible
Expenses incurred to finance activities of the trade unions are not tax-deductible, the Supreme Administrative Court affirmed in a ruling of 28 August 2009 (II FSK 517/08). According to Art. 33 and 33(1) of the Act on Trade Unions, an employer is obliged to provide trade unions with space and equipment necessary to conduct their activities and to transfer membership fees from the employees' salaries. The court decided that the related costs do not come within the definition of tax-deductible costs because they are not costs incurred to earn revenues.
Fixed-Term Employment Agreements
Concluding a fixed-term employment agreement for a period unsubstantiated by a business reason may constitute a breach of the law. This is the case for instance when a fixed-term contract is made for a very long period of time, the employer has no intention to actually continue employment throughout its entire term and the conclusion of such agreement is only aimed at providing an easier way to dismiss the employee. Dismissing an employee with a fixed-term employment agreement is not subject to various restrictions applicable to permanent contracts. In such case, the fixed-term employment agreement may be found to be an agreement for indefinite period of time. This is the conclusion from the ruling of the Supreme Court of 25 February 2009 (II PK 186/08).