Praca i Zabezpieczenie Społeczne (Work and Social Security) 2020/10
Category: Praca i Zabezpieczenie Społeczne
Published: Friday, 20 November 2020 07:34
Written by Editor
- De lege lata and de lege ferenda remote work - change of place of work or a new concept of employment relationship? Part 1 (3-9)
The purpose of the first part of the article is to analyze remote work de lege lata on the basis of the Act of March 2, 2020 on special solutions related to the prevention, counteracting and combating COVID-19, other infectious diseases and the crisis situations caused by them (the so-called anti-crisis shield) . The author presents the provisions on remote work and their subsequent amendments. Analyzes the employer's competences regarding the introduction of remote work, the conditions for its performance, the material scope, as well as the rights and obligations of the parties to the employment relationship. The second part of the article will be devoted to the prospects of regulating remote work in the Labor Code. The author presents the view that de lege ferenda the essence of remote work is its location at home, i.e. in the private sphere of the employee. In his opinion, from the theoretical and legal point of view, work in a workplace and work at home may become equivalent variants of the employment relationship.
- A few remarks about remote work (10-16)
Remote work is undoubtedly one of the most important new legal solutions adopted in labor law in connection with the COVID-19 pandemic. The aim of the article is to analyze the concept of remote work, the relationship between remote work and teleworking, as well as to define the place of remote work provisions in relation to other labor law regulations and within this branch of law. According to the author, the main goal of remote work, namely "counteracting COVID-19", prompts to perceive it as an institution of labor protection law.
- Amendment of the directive on the posting of workers in the framework of the provision of services (17-25)
The aim of the article is to present the changes to the directive on the posting of workers as part of the provision of services, introduced by Directive 2018/957 of June 28, 2018. The author describes the most important of these changes, their genesis and purpose, and at the same time confronts them with the allegations made by the Polish government and Hungary in proceedings C-626/18 and C-620/18, aimed at annulment of the key provisions of Directive 2018/957 or the entire directive, as well as with the current views of the literature against the background of changes introduced in the institution of posting workers.
- Collective agreements in the anti-crisis shield (26-35)
The unprecedented event, which is the global coronavirus pandemic, resulted in the adoption and implementation of many solutions aimed at preventing and combating the epidemic and the negative social, economic and health consequences it causes in the form of the so-called anti-crisis shield. One of its elements are specific solutions in the field of labor law, among which anti-crisis agreements are of prime importance. The anti-crisis shield made it possible to conclude an agreement on the reduction of working time or economic downtime, an agreement on the application of less favorable employment conditions than those resulting from employment contracts concluded with employees, and an agreement on the introduction of an equivalent working time system. The aim of the article is an attempt at a critical analysis of collective agreements introduced by the anti-crisis shield and a careful assessment of their social and economic effects.
- Exemption from the obligation to pay contributions under the anti-crisis shield compared to the previously applicable solutions for the cancellation of social security contributions (36-41)
One of the mechanisms making it easier for the payer of social insurance contributions to meet his obligations towards the social insurance system is their cancellation. Legal solutions adopted in order to counteract the effects of the COVID-19 pandemic differently define the effects of the write-off of certain contributions. The author, presenting the rules for the redemption of social security contributions specified in the provisions of the Act of 13 October 1998 on the social insurance system, other legal acts, known as "abolition acts", indicates the consequences of differences between them and the covid provisions. It also formulates de lege ferenda conclusions, which may be of importance in the future, not only due to the current pandemic, but also other phenomena affecting the economic, health and social security of society.
- The employer's criminal liability for prohibited acts in the field of social insurance (42-49)
The article aims to present crimes and offenses against workers' rights in the field of broadly understood social insurance. These acts constitute a significant part of the social criminal law, however, as in the case of other crimes and offenses from this group, the legislator is far from creating a coherent system reflecting the hierarchy of legal goods and effective from the perspective of punishment policy. The author mainly presents the problems arising from the material scope of Art. 218 § 1a of the Penal Code and the system of sanctions for offenses included in the acts on the social insurance system, on health care benefits financed from public funds and on employee capital plans.
- Prohibition of delegating certain tasks to retired persons and age discrimination (50-52)
The Court of Justice of the European Union has once again issued a ruling on the issue of age discrimination. In the judgment of 2 April 2020 in case C-670/18, CO v Comune di Gesturi, the Court found that EU law does not preclude national legislation prohibiting public administration entities from entrusting research and advisory tasks to retired persons, in so far as, first, that legislation pursues a legitimate aim of employment policy and the labor market and, second, the measures implemented to achieve that aim are appropriate and necessary.
- Termination of employment without notice through no fault of the employee - right to re-employment (53-54)
The author presents the jurisprudence of the Supreme Court in relation to the issue of the right of an employee with whom the employment relationship was terminated without notice without his fault, to re-employment with the same employer.
- Deadline for payment of remuneration for work (55)
- Review of Journal of Laws of 2020 from item 1526 to pos. 1725 (56-58)
- Review of Damian Walczak's book "Privileges in securing old age in Poland" (59-63)
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