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13 May 2015
In March 2014 the European Court of Justice (ECJ) ruled that the Labour Code provision regarding notice periods applicable to fixed-term employment contracts infringed the requirement to treat fixed-term employees as favourably as permanent employees if the situations of those employees are comparable.(1) The judgment related to Article 33 of the Labour Code, which provides that a fixed-term agreement executed for a period of longer than six months may be terminated with a two-week notice period, provided that this option has been agreed by the parties. The two-week notice period is binding irrespective of the duration of the fixed-term agreement or the employee's employment record with the given employer. The ECJ found that this provision discriminated against employees employed in fixed-term agreements in comparison to employees employed in open-ended agreements whose notice periods range from two weeks to three months, depending on their length of employment with the employer.
Under Article 25(1) of the Labour Code, entering into a consecutive fixed-term employment contract has the same legal effect as entering into an open-ended employment contract, provided that:
This rule does not apply to fixed-term employment contracts entered into:
The existing regulation on fixed-term employment agreements has also been criticised by the European Commission. The main points of controversy concern:
On April 10 2015 the cabinet presented a bill which included the proposed amendments to the Labour Code to eliminate the discriminatory provisions and implement the European Commission's suggestions. However, the proposed amendments go further and also deal with trial-period agreements and garden leave during a notice period.
Amendments to fixed-term agreements
The proposed amendments regarding fixed-term agreements are as follows:
However, the above limits (ie, 33 months or three agreements) do not apply to fixed-term agreements executed in order to:
Further, the limits do not apply where the employer has objective reasons to derogate therefrom – in this case the employer should notify the Labour Inspectorate about the execution of such an agreement.
Extensive interim regulations have also been proposed. The most significant interim provisions concerning fixed-term agreements in effect from the date on which the amended provisions enter into force are as follows:
The draft amendment has had its first reading in the Lower House of Parliament. The bill provides for a six-month period of vacatio legis (ie, the time between promulgation of a law and its entry into force), so there is time to prepare for the new regulations.
The amended regulations will provide stronger protection against the misuse of fixed-term agreements. However, many doubts could arise (eg, in relation to the objective reasons that entitle an employer to ignore the maximum period of employment allowed under a fixed-term agreement, the number of fixed-term employment agreements allowed and who will assess these issues). If enacted in its existing form, the new law could also be misused. Further, employers that employ employees under fixed-term agreements should analyse their individual circumstances, so that the interim regulation does not catch them by surprise.
For further information on this topic please contact Roch Pałubicki or Katarzyna Pikiewicz at Soltysiński Kawecki & Szlęzak by telephone (+48 22 608 7000) or email (firstname.lastname@example.org or email@example.com). The Sołtysiński Kawecki & Szlęzak website can be accessed at www.skslegal.pl.
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