Praca i Zabezpieczenie Społeczne 2017/12

  • Labor law: is it public law or private law? (2)
    Most recent secondary sources advocate quite strongly the vision of a public-law nature of labour law. After all, seen from the perspective of science in a broader sense, it has never been deemed entirely single, for attention has often been drawn to the public-law character of this branch of law in science understood in this way, that is, comprehensively. The following article aims at answering the question of whether the need to defend the private-law character of labour law should actually be discussed and, first of all, whether it is justified at all to use that peculiar militarised language that would suggest potential struggle or opposing parties. First and foremost, I would like to point out the essence of the division of the legal system into private law and public law, and next - should it actually prove possible to divide the legal system dichotomously this way - I would like to answer the question of what labour law is, namely whether it is public law or private law.
  • Creating the right to social security (on the example of the risk of incapacity for work) (8)
    The scope of protection of social risks is influenced by the legislative process. Its correctness may be considered in various aspects. Particular attention deserves the quality of the law created and the process of democratization in its creation. Every norm of national law should derive either from an act of parliament or from an act issued under the act. In the case of the right to social security, at least its scope and forms must be regulated in a statutory act of law.
  • Claim for re-employment in Article 53 § 5 of the Labour Code (14)
    The article discusses more widely the interpretation of Article 53 § 5 of the Labour Code, which orders - on the terms set out by this provision - to re-employ an employee with whom an employment relation was terminated pursuant to Article 53 § 1 or § 2 of the Labour Code. This paper covers also the issues of the regulations that introduce the obligation to conduct a competitive and open recruitment process.
  • Confidentiality duties of employees cooperating with members of liberal professions (22)
    Exercising a liberal profession involves obtaining access to a renge of information relevant to the client's interests by a professional. Under the provisions governing the pursuit of the profession concerned, a professional is obliged to keep this information confidential (professional secrecy). At the same time, a professional who performs professional activities cen be assisted by other people, whose tasks will include the necessary suport such as office or technical tasks. A professional may also enter into a relationship of substantive cooperation in exercising professional activities and cooperate both with other members of liberal professions and, in the prescribed manner, other auxiliary staff members. Thest persons may have, in the specific case, the status of employees directly employed by a particular professional. They may also be employees of an entity which employs a professional in addition to them for whom they will perform ancillary activities. Inevitably, the least cooperation of a professional and the auxiliary staff members will lead to the flow of onformation, which will at east partially belong to the domain of professional sevrecy of the liberal profession. In this connection, a question arises about the relationship between the obligation of professional secrecy within the meaning of the provisions governing the exercise of the liberal profession and the employee's obligation of secrecy under the provisions of the Labour Code.
  • Self-government employees' right to retirement severance pay in case of termination of the employment contract under the conditions set up in Article 52 par. 1 of the Labour Code (29)
    Author discusses issues related to granting self-government employees right to retirement severance pay in case of termination of their employment relationship pursuant to Article 52 par. 1 point 1 of the Labour Code basing on the judgments of the Sumpreme Court. The article has shown a number of arguments in favor of the thesis that termination of employment based on Article 52 par. 1 of the Labour Code results in a lack of connection between termination of employment and retirement. Although the article focuses on the right to retirement servance pay for self-government employees, the comments contained therein can also be refered to the retirement severance pay due to the Article 92 of the Labour Code.
  • Indirect discrimination on the grounds of sex in access to employment - a minimum physical height requirement (34)
    In the judgment of 18 October 2017, C-409/16, case Ypourgos Esoterikon, Ypourgos Ethnikis paideias kai Thriskevvmaton vs. Mariaa-Eleni Kalliri, the Court of Justice of the EU once again analyzed a problem of equal treatment of men and women in matters of employment. This time the Tribunal considered a law which makes candidates' admission to the competition for entry to the police school, whatever their sex, to a requirement that they are of a phisical height of at least 1.70 m, from the point of view of discrimination on the ground of sex.
  • The limit of the admissibility to give by an employee or an insured person the power of attorney to trade union representative (article 465 § 1 of the Civil Procedure Code) - the latest case law (36)
    The author reports a discrepancy in the Supreme Court's jurisprudence regarding the admissibility of limiting to give by an employee or an insured person the power of attorney to trade union representative in the light of the latest case law of the Supreme Court.