Praca i Zabezpieczenie Społeczne (Work and Social Security) 2021/03
Category: Praca i Zabezpieczenie Społeczne
Published: Thursday, 08 April 2021 13:57
Written by Editor
- The institution of oath in employee and non-employee service relationship (3-9)
The article concerns the legal institution of taking the oath by persons entering into employee and non- employee service relationships. This institution has a long tradition and its source is the duty of faithfulness. The oath is an act of conventional character performative , which for its effectiveness must meet certain requirements regarding the form and content. Although the acts of oath fulfill a functionally similar role, individual provisions unreasonably differently define the moment when the obligation to take the oath arises and the consequences of its violation (e.g. invalidity of a legal act, dismissal from service, termination of employment). These regulations have an impact on the procedural status of employees and officials of state services related to the pursuit of possible claims.
- Suspension or reduction of contributions to PPE (10-14)
Occupational Pension Schemes (PPE), under the third pillar of social security, are a voluntary form of group saving for retirement. The author's considerations concern issues related to institutions that are to encourage employers to create PPE. The possibility of unilaterally suspending basic contributions, reducing their amount and not financing obligatory contributions during the period of economic downtime or shorter working time was analyzed . With regard to the former, the article focuses in particular on the consequences of suspending basic contributions for a single period of more than 90 days or reducing them to an amount lower than 3.5% of the PPE participant's remuneration.
- Autonomous definition of an employer in European social security law. Considerations against the background of the judgment of the Court of Justice of the European Union in the AFMB case (15-23)
In the case C-610/18, the Court of Justice of the European Union formulated an autonomous definition of an employee in social security law. It ruled that the employer of employees who are drivers of international transport, obliged to pay contributions for insurance benefits to the national social security institution, is - in the light of the provisions of Regulations 1408/2004 and 833/2004 - an entity or a natural person actually, and not fictitiously, employing employees who are actually available to it for an indefinite period and its subordinates. Such an employer actually bears the relevant salary costs of the employees. He is vested with full powers to control and make decisions on the termination of employment relationships with employees. On the other hand, the fact of concluding an employment contract by an entity or a person who does not meet the above criteria does not have legal consequences on the part of the employer , as it does not result in the establishment of an employment relationship.
- The concept of an employee in the Directive of the European Parliament and of the Council (EU) 2019/1152 on transparent and predictable working conditions in the European Union and the concept of an employee in Polish labor law (24-31)
The aim of the article is not only to define the subjective scope of the new directive on transparent and predictable working conditions in the European Union, but above all to reflect on the concept of an employee functioning in EU legislation. For this purpose, the authors reviewed the occurrence of the concept of an employee on the basis of the key EU legal acts and selected judgments of the Court of Justice of the European Union. On this basis, they identified a number of features that characterize an employee in EU law, and then compared them with the premises of Polish national legislation. They also pointed to the danger of a different understanding of similar premises in EU and national law.
- Knowledge management in remote teams - COVID-19 case study (32-40)
Knowledge management is crucial for the operation of modern organizations - enterprises and companies. Until now, remote teams have been rare. Only the IT sector has used this method of operation. The new working conditions during forced isolation sharply changed this situation. Almost all organizations had to virtualize themselves . Knowledge management turned out to be one of the biggest challenges, as there was a huge demand for new competences. There are many obstacles to overcome, such as organizational culture or the lack of digital competences. We need to assimilate new methods of employee training and knowledge management in order to become competitive in the near future and to pursue an effective personnel policy.
- Mediation as one of the forms of resolving individual disputes in labor law (41-49)
Disputes and conflicts occur in all human relationships, therefore disputes in the workplace are also inevitable . The simplest, least expensive and, in fact, one of the most effective possible responses to an emerging conflict at work is mediation. Mediation, unlike court proceedings, does not have a rigid procedural framework, it is more flexible and less formalized. The aim of the article is to present mediation as an alternative method of resolving individual disputes in the field of labor law, which should be successfully used in the event of a dispute between an employee and an employer. So far, mediation is often underestimated by both employees and employers, who usually take court action as a method of dispute resolution.
- Cessation of agricultural activity as a condition for granting the right to early retirement pension (50-53)
The author presents the judgment of the Court of Appeal in Łódź, in which the Court interpreted the term "cessation of agricultural activity" as one of the conditions for granting the right to early retirement pension. This judgment is of particular importance due to the lack of a legal definition of this concept. In the Act on the social insurance of farmers, the concept of "cessation of agricultural activity" was explained in Art. 28 sec. 4 for the purposes of a partial suspension of an agricultural retirement or disability pension, and not the granting of the right to this benefit. According to the author, the opinion of the Court of Appeal deserves approval that the condition for granting the right to early retirement is met when the farmer actually ceased agricultural activity.
- The right to a pension military - periods of service in the uniformed formations of other periods as equivalent to military service (54-57)
study provides a description of the judgment of the Supreme Court concerning the requirements (periods) internships entitling to acquire the right to a pension military context committed by the authorized crime in the period on duty. It is problematic whether this period should be included in this internship. The issue of leading principles (methods) for the interpretation of social security law was related to this issue.
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