Praca i Zabezpieczenie Społeczne (Work and Social Security) 2019/01
Category: Praca i Zabezpieczenie Społeczne
Published: Thursday, 07 February 2019 18:09
Written by Editor
- Between protection and effectivity. Covering civil law employment contracts with labour regulation — introductory remarks
Hereby presented analyses focus on various ways labour legislation affects non labour (civil law based) employment. As a result of collective cooperation and individual activity of employees of the Department of Labour Law and Social Policy, Faculty of Law and Administration, University of Warsaw, they underline differences and similarities of views on the matter. Trying to gather understanding of the topic as presented so far with evolution of the legislation and judiciary, possible directions of solving future challenges are also available.
- Discrimination (unequal treatment) in civil-law relationships
The article presents the analysis of legal solutions adopted by an Act of 3rd December 2010 on the implementation of some regulations of European Union regarding equal treatment. Besides the remarks concerning terminology, it studies issues connected with protection against discrimination (unequal treatment) of people performing work on the basis of civil-law contracts. It points out that only in result of enacting the above-mentioned act the Polish anti-discrimination law has been complemented with provisions providing protection also for those who experience unequal treatment in legal relationships existing outside the labour law regime in situations, when their duty is to perform work. The article contains a wider analysis of basis and scope of compensatory liability for discrimination as one of the expressions of unequal treatment. Moreover, it emphasizes the problematics of the burden of proof and limitation of compensation claims for unequal treatment of those performing work on the basis of civil-law contracts.
- Subordination in contractual civil law employment
The employment relationship is not the only legal form, in which a natural person can provide work. In addition to employment regulated by labour law, there are parallel civil law employment relationships. Therefore, the characteristics of the employment relationship that allow it to be distinguished from civil law forms of employment are of particular importance. The most important feature of the employment relationship is the subordination of the employee and the employer's management rights. As part of managerial powers, the employer may make temporary changes to the content of the employment relationship. In civil law relations, such properties do not exist. On the basis of the provisions of the Civil Code in civil law employment, the part of contract is not entitled to managerial rights towards the contractor. In these relations there are no features of subordination typical of the employment relationship. The content of the obligation set in the contract can not be unilaterally changed by one of the parties. However, there are elements in civil-law employment such as supervision and the right to issue instructions on how to perform the contract.
- Scope of protection's uniformity of remuneration for work in labour and civil contractual employment relationships
The analyse evaluates statutory tendency to uniform the protection of remuneration for work resulting from labour and civil law employment relationships. The evaluation assesses constitutional requirements of such a protection as well as a right to differentiate it basing on certain criteria.
- Protection of persons employed on the basis of civil law contracts in the case of employer's insolvency
The Act on Protection of Employee Claims in the Event of Insolvency of an Employer was one of the first legal acts in which the legislator perceived the need to protect not only employees but also persons employed on the basis of civil-law contracts. However, an in-depth analysis of this issue shows that the actual level of protection of persons performing work on the basis of civil law contracts differs from the level of protection guaranteed to employees in case of insolvency of an employer, and these are not always justified differences. This article is aimed at a critical analysis of the protection of persons employed under civil law contracts in the event of the employer's insolvency and indication of possible directions of legislative changes.
- Non-competition clause in civil law employment
The aim of the paper is to discuss the topic of the non-competition clause in the civil law employment. The Author analyses the non-competition clause created both on the basis of the principle of freedom of contract, as well as on the basis of specific legal regulations. The article attempts to answer the question of the permissibility of creation the so-called non-compete clauses without an equivalent on the basis of the freedom of contract.
- The right to rest and employment under a civil contract
The article analyses the legal conditions regarding the existence of the right to rest and its realization by a person employed under a civil contract. Deliberations on this subject are based on the following assumptions: firstly, the rest is functionally connected with work performed by a human — e.g. an activity that lasts and engages a human, thus affecting his/her health and freedom to decide how to spend his/her time; secondly, under Polish law human work can constitute a contractual obligation within the realm of a civil law relationship; thirdly, the realization of the right to rest is feasible within a civil law relationship, in spite of the lack of managerial powers similar to those existing in an employment relationship.
- Safe and healthy working conditions in civil law employment
Constitution of the Republic of Poland (art. 66 sec. 1) guarantees everyone a right to safe and health working conditions. This covers both labour law employment relationships as civil law employment ones. However a method of regulation — simple widening of rules applicable to labour employment — constitutes several theoretical and practical doubts hereby presented.
- The protection of parenthood of the persons employed on the base of civil contracts
According to art. 18 of the Polish Constitution, motherhood and parenthood are under the protection of the Republic. Additionally, pursuant to art. 71 par. 2 of the Constitution of the Republic of Poland, mothers before and after childbirth have the right to special assistance from public authorities. These provisions of the Constitution are applicable not only to persons employed on the basis of an employment relationship but also to persons employed under civil law contracts. However, the scope of guaranteed protection does not have to be the same and may vary depending on the basis of employment. This study is an attempt of critical analyse of the protection granted in relation with parenthood to persons employed on the basis of civil law contracts. In the result it should be possible to showto what extent the current diversity of protection of parenthood of persons employed under civil law contracts is objectively justified, and to what extent there is no such justification.
- The legal landscape after the reform. Collective representation of non-employees' rights and interests
The paper focuses on of 5 July 2018 act amending trade unions act of 1991 and other acts and impacts of new regulations on legal position of workers who are not employees in collective labour law field.
- The effects of the impact of the labour law on civil law contracts within social security legislation
Civil law contracts cause problems in social insurance due to their diversity resulting from the freedom of contracts, which remains in contrast with the essence of the social insurance. Social protection requires solidarity, based on the concept of equality imposing equal treatment of persons in the same situation, with the same needs. The influence of labour law on civil law contracts allows to extract some typical elements in some kinds of contracts and to assign them functions similar to the functions they have in the social insurance of employees (e.g. elements of remuneration taken into consideration while calculating the contributions base). However, in general, the problem of labour law impact on civil law contracts is a problem external to social insurance, and while shaping the social insurance law the legislator is able to regulate the social issues independently, without reference to any particular indicators of the position of the persons working on the basis of the civil law contracts.
- Dissemination of civil law contracts and social protection of employees
Social protection of employees and workers is a key issue in the terms of precarity and the changing employment paradigm. Although it may seem that social protection issues belong to the outgoing world of work, it becomes clear that social protection for a large number of employees and workers plays a key role in ensuring the income security on which the fullfilment of needs of the employed and workers depends. This affects the provision of social peace and well-functioning societies.
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