The Act of 4 July 2019, which amended the Code of Civil Procedure and other acts, including Poland's labour and social security law, has received significant attention. The act took effect on 7 November 2019; however, some of the changes had already taken effect on 21 August 2019, and some will not take effect until 7 February 2020 or 7 August 2020. This article examines the extensive amendments that took effect on 7 November 2019.
The legislature has introduced pre-trial proceedings to civil procedures. As such, there will no longer be an initial examination or investigation. The purpose of pre-trial proceedings is to resolve a dispute without holding further sessions – namely, a hearing. However, if it proves impossible to resolve a dispute at this stage, a hearing plan can be prepared.
With regard to labour and social security law matters, the legislature has demonstrated a more lenient approach to formal shortcomings by providing that a party which files a plea to commence the proceedings will be summoned to remedy shortcomings only when such shortcomings prevent the conduct of pre-trial proceedings. Any other shortcomings may be remedied during the pre-trial session. Pre-trial proceedings also allow the courts to establish a list of evidence to be examined ex officio and clarify other circumstances that are significant for the correct and efficient examination of a case.
The amendment aims to facilitate the conciliatory resolution of a dispute at an early stage (in social security matters, conciliation or the submission of a dispute to arbitration are prohibited) and, if this is not possible, provide for the next steps.
Obligation to employ workers until proceedings are concluded
The courts may order an employer to continue to employ a worker until proceedings are concluded, not only if termination of employment is considered ineffective, but also when a worker has been reinstated in their job.
Following the amendment, it is possible to reinstate a worker in a job and impose an obligation on the employer to continue that worker's employment until the proceedings are concluded (irrespective of the applicable termination notice). Employers which appeal a first-instance court decision may have to employ such worker until the final judgment has been issued.
The amendment aims to allow for the option of reinstating an employee in a job; however, at present, such an option is rarely applied in practice.
Judges advising on the probable outcome of a case is a novel solution. However, following the amendment entering into force, presiding judges can now advise parties during a session of the probable outcome of the case in light of the statements and evidence submitted.
The rationale behind this regulation is that the amendment aims to "enhance the communication between the court and the parties, and specifically to bring down the barriers which were traditionally justified by the court's status of a public authority".
Another novelty in Polish labour law is that parties must now submit a statement of defence. Previously, parties had the right to submit a statement of defence. Following the amendments, failure to comply with this obligation may result in a default judgment.
Under the amendment, witnesses may give testimony in writing. The amendment also enables the courts to refrain from reading a judgment when no one has appeared to hear it.
Changes have also been made to the principles of recording court activities. Previously, legislation allowed parties to record a hearing using audio recording equipment. The amended regulations are more specific and also allow the recording of other court activities. The requirement to obtain the court's approval for such recording has been replaced with an obligation to notify the court of the intention to make an audio recording.
The amendment specifies the cases which will not be examined in pre-trial proceedings and enumerates the labour law cases which will be decided by jurors. These cases include those that:
- establish the existence, commencement or termination of an employment relationship or declare an employment relationship termination to be ineffective and reinstate the previous terms of work or payment or compensate in the event that the notice and termination of an employment relationship were unjustified or in breach of regulations;
- examine violations of the principle of equal treatment in employment and related claims; and
- compensate or redress for mobbing.
Cases in the social security field have also been excluded from examination in pre-trial proceedings, except in selected cases (eg, cases concerning a sickness benefit, compensatory benefit, care allowance, maternity allowance, death allowance, rehabilitation benefit, accident at work benefit or occupational disease benefit). The amended Article 505(1), Section 3 of the Code of Civil Procedure empowers the courts to examine a case concerning an excluded provision in pre-trial proceedings if this may enable it to resolve the case more efficiently.
Amendment to Act on Public Offer
On 23 October 2019 the amendment to the Act on Public Offer was forwarded to the president for signing. The amendment implements the EU Directive on Shareholders Directive Rights II (2017/828).
The amendment introduces additional duties for public companies with regard to the remuneration of management and supervisory board members, including the duty to:
- implement a policy for remunerating management board and supervisory board members; and
- prepare annual reports on the above remuneration.
The remuneration policy will be approved by the general meeting of the shareholders. The obligatory provisions of the remuneration policy include:
- the division of the remuneration into fixed and variable components;
- the proportions of the components and the principles for granting bonuses and benefits in cash or in kind;
- the term of the employment agreements, commissioned work agreements, specific task agreements or other similar agreements with management board and supervisory board members; and
- descriptions of key features of additional pension schemes and early retirement schemes.
Further, the remuneration policy must establish the criteria for granting the variable remuneration components and the principles for granting remuneration in the form of financial instruments (if applicable).
Remuneration payable to management board and supervisory board members must comply with the remuneration policy. Companies must publish their remuneration policy, their resolution regarding their remuneration policy and their remuneration reports on their websites.
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