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30 October 2013
On August 23 2013 a material amendment to the Labour Code entered into force. The changes concern working time and are generally to employers' advantage – their aim is to increase flexibility and limit personnel costs. They partly copy the provisions of the so-called 'anti-crisis law', which had been in force in between 2009 and 2011. Of the changes that have been introduced, the most significant are considered below.
The new provisions allow for the extension of working time settlement periods to up to 12 months in any working time system, provided that such extension is justified by objective or technical reasons, or reasons concerning working time organisation (although this has not been further specified). The general rules concerning employees' health and safety, as well as the mandatory rest periods (11 hours a day and 35 hours a week), must be respected.
The length of the settlement period is relevant when calculating weekly overtime hours, as they are settled as at the end of each such period. Until now, the length of settlement periods under different working time schedules has amounted to between one and four months. The newly introduced possibility of their extension allows employers to plan employees' work such that it is spread unequally over a longer period, depending on business needs.
In practice, such flexibility is limited by the need to issue working time schedules (plans) for periods shorter than a settlement period, but no shorter than one month. The schedules must be announced to employees at least one week in advance. The new provisions do not explicitly provide for the procedure of changing the working time schedule (once announced); however, it should be assumed that they cannot be changed unless extraordinary circumstances occur.
Previously, it was legally risky in Poland to introduce flexible working hours (ie, under which an employee must work core hours during the day, but he or she could decide when to start). Such a scheme might have allowed an employee to decide whether he or she started work at 9.00am, 9.30am, 10.00am, 10.30am or 11am, provided that he or she remained in the office for the following eight hours. However, this could have exposed the employer to material liability for overtime benefits.
Under the new law, such flexible working time arrangements are now legal and no longer associated with overtime risks. However, such schemes require additional effort before they can be introduced.
Unionised employers can introduce both an extension of the settlement period and flexible working time schedules only in a collective bargaining agreement, or in an agreement with unions. Non-unionised companies must agree on such changes with elected employee representatives.
The new law also addresses a problem commonly arising out of the practice of granting short periods of leave to employees for dealing with private matters during a business day, in return for additional hours of work at the end of the day, or on another day. Previously, such additional work was deemed to constitute overtime work. Under the amendments, work carried out after hours in lieu of time off for short breaks granted to an employee at his or her written request does not count as overtime work.
The new law has granted employers much more flexibility in working time management and has clarified certain contentious issues. However, employers should be prepared to encounter difficulties, including insufficient flexibility in amending the working time schedules already communicated to employees, if such amendment is required due to an emergency. According to some legal commentators, the procedure for amending working time schedules that have already been introduced should be provided in internal employment policies.
The extension of the settlement periods to up to 12 months in all possible working time systems, subject only to vague and discretional conditions, has been widely criticised by trade unions, the State Labour Inspectorate and some experts. Doubt has been cast on its compliance with the Constitution and with the EU Working Time Directive (93/104/EC), not without reason. The new regulation is certainly aggressive; however, whether it will remain in force or will be undermined by the Constitutional Tribunal remains to be seen. The opposition party has already announced that it would demand that the provisions on the extension of working time settlement periods be deemed incompliant with the Constitution.
The requirement to obtain employee representatives' consent to extensions of settlement periods, and when introducing flexible working hours, will necessitate elections to be carried out for such representatives in many companies. The establishment of employee representation (even for such limited purpose) may be found to set a disadvantageous precedent, so a loss and gain analysis should be carried out in this respect.
Trade union Solidarność recently assessed that where employees' representatives are to negotiate with the employers as part of the new legal requirements, their additional protection against pressure from employers should be guaranteed. The union found that the new provisions do not guarantee sufficient protection and are thereby contrary to the Constitution. Reportedly, proceedings concerning this problem are to be instituted by the union before the Constitutional Tribunal.
For further information on this topic please contact Roch Pałubicki or Karolina Nowotna at Sołtysiński Kawecki & Szlęzak by telephone (+48 22 608 7000), fax (+48 22 608 7070) or email (email@example.com or firstname.lastname@example.org).
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