Praca i Zabezpieczenie Społeczne (Work and Social Security) 2019/08

  •  Articles
    • Employee ownership participation
      Employee participation is implemented on many levels. It is done not only in simple information forms. Often employees are granted rights affecting the employer's sphere of ownership. Such compounds may occur, among others due to the possibility for employees to make decisions binding the employer that limit their independence. The ownership dimension of participation also involves including employees in the distribution of profits obtained or making employees the owners of their employer or means of production. The author indicates that finding partners within each other by the parties to the employment relationship by building a workplace community contributes to its development.
    • Employment relationship - basic issues (part 2): contractual or tort liability of the employer?
      If we assume that the essence of model contractual liability boils down to the obligation to cover damage resulting from non-performance or improper performance of an obligation, where legal regulations in this respect are in principle "scanty" - the question arises as to how to treat the occurring cases of very detailed legal regulation of employer's liability rules. The author puts forward the thesis that in the context of the legal nature of the employment contract and the overall normalization of the employment relationship, the contractual liability regime goes somewhat "across" the vision of employer responsibility, and attempts to answer the question: is it not possible to apply rules of tort liability. The subject of the first part of the article, published in issue 6/2019, was the issue of whether the controversy regarding the monistic or dualistic concept of employment relationship is actually valid.
    • Employee's consent as an instrument for shaping his legal situation
      The legislator sometimes uses the structure of consent in the regulations of individual and collective labor law. The article discusses three selected examples in which the legalization of employer's activities is carried out in this way. These are: the consent of the employee as part of the work organization process (Article 178 § 2 of the Code of Criminal Procedure), as an instrument of the employee's disposal of his right (Article 91 § 1 of the CCP) and as an element of legal action (Article 42 § 3 of the CCP). The selection of examples shows that employee consent is very diverse in terms of design, meaning and form. The legislator assumes that consent is the exercise of the freedom of decision of the entity that gives it. However, in the process of granting consent, deliberate action by the employer to force her on an employee cannot be excluded. The employee's consent is not only a legal category, but also a psychological condition. The lack of equivalence in the relationship between entities undermines the assumption that consent is grounded in the discretion of the entity that gives it. Therefore, one can critically assess consent as an instrument through which the legislator allows an employee to shape his own legal situation, and wonder whether in all cases in which the legislator uses it, the benefits of such an option outweigh the risks that may rise with her.
  • Studies and studies
    • Employee capital plans (PPK) - a rescue for the Polish pension system?
      The author presents the assumptions and features of employee capital plans, which, in the opinion of the Polish legislator, are to create a real opportunity to collect appropriate savings on time after reaching retirement age, ensuring a standard of living. Analyzes PPK costs for an employed person, employing entity, and the state. Against this background, he attempts to assess the method of saving introduced by the legislator for the period after cessation of professional activity.
  • Interpretation and practice
    • Legal status of the university in the light of the Act on the protection of employee claims in the event of the insolvency of the employer
      The legal status of a university in the light of the Act on the Protection of Employee Claims in the event of the Employer's Insolvency is very complex. It depends in particular on whether the university is a public or private university and whether it conducts business (as permitted by the Act on Higher Education and Science). This translates into a significant differentiation in the level of protection provided to university employees in the event of the insolvency of their employer. The author makes a critical analysis of the applicable regulation, with particular emphasis on its compliance with European law.
    • On convergence of claims from art. 45 and art. 49 of the Labor Code
      The author discusses the relationship between the provisions of Art. 49 and art. 45 § 1 and 2 of the Code of Civil Procedure relating to defective declarations of intent to terminate an employment contract for an indefinite period. First of all, it considers whether it is possible to talk about a combination of claims for remuneration for the required notice period (Article 49 of the Labor Code) and compensation for unjustified termination of the employment contract (Article 45 § 1 of the Labor Code), or whether the correct interpretation of these provisions should lead to conclusion that in the event of their convergence, only one of them applies, and thus the employee is entitled to one of the claims provided for in these provisions.
    • Failure to pay social security contributions as a causative behavior of an offense under Art. 218 § 1a of the Penal Code
      Pursuant to the Act on the social insurance system, upon entering into an employment relationship, the employee is subject to compulsory retirement, disability, sickness and accident insurance. The rights arising from the social insurance relationship constitute the subject of criminal law protection provided for in the provisions of Chapter XXVIII of the Penal Code. The purpose of the article is to try to answer the question whether the failure to pay social security contributions falls within the scope penalized by art. 218 § 1a of the Penal Code efficient behavior.
  • From the case law of the Court of Justice of the European Union
    • Transfer of financial services and the transition of a workplace to a new employer
      The Court of Justice of the EU on 8 May 2019 issued a judgement in case C-194/18, Jadran Dodič vs. Banka Koper, Alta Invest, according to which the transfer of financial instruments under a contract the conclusion of which is required by national legislation, even though clients remain free not to entrust the management of their stock market securities to the new undertaking, may constitute a transfer of an undertaking or of part of an undertaking if it is established that there was a transfer of clients.
  • From the case law of the Supreme Court
    • Employment conditions after returning from parental (maternity) leave - the latest case law
      The author presents the jurisprudence of the Supreme Court regarding the interpretation of art. 1832 of the Labor Code, taking into account its latest trends.
  • According to the National Labor Inspectorate
    • Work certificate – continued
  • New recipes
    • Review of Journal of Laws of 2019 from item 1189 to item 1421
  • Publishing review
    • Jerzy Wratny: The phenomenon of employee participation in the trend of transforming labor relations

Praca i Zabezpieczenie Społeczne (Work and Social Security) - full list