Praca i Zabezpieczenie Społeczne (Work and Social Security) 2020/11
Category: Praca i Zabezpieczenie Społeczne
Published: Friday, 18 December 2020 15:23
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 2 (3-10)
Part 2 of the article is 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 equal variants of the employment relationship. Therefore, it is advisable to take a new look at the concept of an employment relationship, and an amendment to Art. 22 of the Labor Code and art. 29 of the Labor Code in terms of taking into account the nature of remote work. The possibility of working at home should become an important element of the employment contract. The author is in favor of a wide subject scope of remote work. Under the Labor Code, the employer and the employee should have a wide margin of discretion as regards agreeing on the terms of remote work. Part 1 of the article, published in the previous issue of PiZS, was devoted to the analysis of 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 crisis situations caused by them. The author presented the provisions on remote work and their subsequent amendments. He discussed the employer's competences regarding the introduction of remote work, the conditions for its performance, the scope of the subject, as well as the rights and obligations of the parties to the employment relationship.
- Work experience or length of employment? Reaction to changes in the labor market (11-17)
Far-reaching changes in the structure of the labor market are taking place. The trends of departing from employment in favor of other legal bases for performing work are becoming stronger and stronger. The statistical data show mainly the increase in the number of civil law contracts and the so-called self-employment. This is a very different state from what existed at the time when Polish labor law was codified. The aim of the article is an attempt to answer the question whether the structures, whose roots often date back to the 1970s, still meet their axiological assumptions. The author shows, using the example of the analysis of the structure of seniority, and in particular how this concept is usually understood in terms of regulations and how the seniority affects the situation of employees, that the legislator should react more decisively to the current socio-economic reality or possibly take effective steps to shape it in the way desired.
- About the prohibition under Art. 52 § 2 of the Labor Code in terms of the subject matter (18-23)
The prohibition to terminate an employment contract one month after the employer had received information about the reasons justifying them was based on a complex dependency. On the one hand, it is a guarantee for the employee, and on the other, it assumes that the employer will sufficiently know the circumstances of the reprehensible behavior of the employee. This dependence is the cause of numerous controversies. It makes developing a uniform interpretation pattern much more difficult.
- The scope of the labor inspector's procedural card under Art. 631 of the Code of Civil Procedure (24-31)
The aim of the article is to analyze the scope of the labor inspector's procedural standing in cases concerning determination under Art. 631 of the Code of Civil Procedure, which is a controversial issue in both literature and practice. The author presents extensive arguments to support the thesis that the labor inspector is not entitled to bring actions for determining the content of the employment relationship or law-making facts related to it. It focuses in particular on demonstrating the lack of a legal interest of the inspector in such a determination, assuming that demonstrating a legal interest is a premise of any action for determination (Civil Procedure Code Art.189).
- Control by the Social Insurance Institution of business activity in the context of verification of the basis for the calculation of sickness insurance contributions and the amount of benefits in this respect (in the light of the latest judgments of the Supreme Court) (32-42)
The article concerns the control of economic activity conducted by the Social Insurance Institution in the context of the verification of the basis for the calculation of sickness insurance contributions and the amount of benefits in this respect. It seemed that this issue had been settled in the resolution of the panel of 7 judges of the Supreme Court of April 21, 2010, II UZP 1/10. However, recent case law, in particular the judgments of September 5, 2018, I UK 208/17 and October 17, 2018, II UK 301/17 and II UK 302/17, seems to indicate that this problem has not lost its impact at all. news. The aim of the article is a critical analysis of the latest jurisprudence of the Supreme Court in the discussed scope, primarily in the context of normative changes that took place after the issuance of the resolution II PPO 1/10.
- Temporary work - obligation to prevent the use of subsequent referral periods (43-45)
In the judgment of 14 October 2020 in the case C-681/18, JH v KG, the Court of Justice of the European Union for the first time interpreted Art. 5 sec. 5 of Directive 2008/104 on temporary work. In the Court's view, that provision must be interpreted as meaning that it does not preclude national legislation which does not limit the number of successive assignment periods that the same temporary agency worker may complete in the same user undertaking and the lawfulness of the use of the temporary agency work. from an indication of reasons of a technical nature or related to production or organization requirements or to any substitute reasons justifying this use. On the other hand, that provision must be interpreted as precluding a Member State from taking any measure to preserve the temporary nature of the agency work and a national legislation which does not provide for any measure aimed at avoiding the application of successive periods of assignment of the same temporary worker to the same user undertaking in order to circumvent Directive 2008/104 as a whole.
- Termination of an ex lege employment relationship in the conditions of reorganization of an employer from the public administration sector - the latest case law (46-50)
Reorganization in the public sector has long been accompanied by the termination of the employment relationships of its employees by law. At the same time, it was the subject of analyzes not only of the doctrine of labor law, but also of judicial decisions, including the jurisprudence of the Constitutional Tribunal. Recently, the legislator uses this institution particularly often. At the same time, it is accompanied by such a way of using it in practice, which raises doubts from the point of view of maintaining standards in force in labor law with regard to the durability of the employment relationship and the prohibition of arbitrary selection of employees for dismissal. This study is devoted to the case law of the Supreme Court dedicated to this issue.
- Employee in quarantine (51)
- Review of Journal of Laws of 2020 from item 1726 to pos. 1930 (52-53)
- Review of Gertruda Uścińska's book entitled Social Insurance Law. Principles, financing, organization (54-55)
Praca i Zabezpieczenie Społeczne (Work and Social Security) - the whole list