The year 2019 saw an abundance of labour law novelties, including amendments to the Code of Civil Procedure, the Act on Trade Unions and the Labour Code. To welcome 2020, this article summarises the biggest changes that employers and employees faced in 2019.
The National Labour Inspectorate (PIP) oversees the practice of foreign employers posting employees to Poland as part of the provision of services. PIP inspections show that many foreign employers are unaware of the obligations imposed on them by Polish law, which can lead to fines of Zl1,000 to Zl30,000. Thus, foreign employers posting employees to Poland must understand their obligations, particularly with regard to working time and health and safety issues.
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. Among other things, these amendments have introduced pre-trial proceedings and permit the courts to order employers to continue to employ a worker until proceedings are concluded, not only if termination of employment is considered ineffective, but also when the worker has been reinstated in their job.
A number of significant changes to Polish labour law have been announced in recent months. This article examines these amendments in detail, including changes to the Labour Code, remuneration for vocational training and apprenticeships, an increase in the minimum wage rate, the abolition of limits on retirement and disability insurance contributions and changes to social benefit fund contributions.
The Supreme Court recently issued a notable judgment concerning the work of a deceased artist and the alleged infringement of his moral copyright. The decision underlines that it is difficult to limit the activities of people who have been gifted the work of an artist even after the artist's death, especially in the case of a close personal relationship between the artist and the beneficiaries.
The Constitutional Tribunal recently found that the information claim mechanism provided for in the Industrial Property Law does not comply with the Constitution. Following the tribunal's ruling, the scope of the legal mechanisms to obtain information to determine the scale of an IP infringement has been reduced. However, the decision also makes it possible to protect entrepreneurs from the unjustified and unnecessary disclosure of business secrets.
Andrzej Sapkowski, a well-known Polish writer and author of The Witcher fantasy saga, recently requested additional remuneration of at least Z60 million from CD Projekt for a video game based on his work. Following the game's worldwide success, Sapkowski claimed under Article 44 of the Copyright Act that the remuneration granted to him was too low relative to the benefits derived from the exploitation of his work.
The Copyright Law provides no legal definition of what constitutes an 'audiovisual work', which has resulted in problems regarding the remuneration of authors and the role of collective management organisations in this context. The practical issues concerning remuneration for the use of audiovisual works underline the need to amend the Copyright Law, as the existing legislative gaps cannot be resolved by case law alone.
The Polish legislature is in the process of implementing the EU Trade Secrets Directive. The new legislation is considered to be generally compliant with the directive and is likely to come into force on June 9 2018. While the legislature should be praised for its attempt to implement the directive on time, work appears to be progressing too quickly in order to discover and eliminate possible deficiencies and guarantee the directive's full implementation.
Social security contributions in Poland are significant, particularly in the case of highly paid managers. As a result, it is common practice for managers to perform their duties as self-employed persons under management contracts. A recent Supreme Court decision confirmed that management contracts can still be performed by self-employed managers and that such business activity constitutes a basis for social security insurance if the manager is not a management board member.
There is an urgent need to improve the collective management system in Poland. The recent proposed introduction of the extended collective licensing model offers a chance to solve the existing legal and practical problems, but any such change should be considered and consistent with the whole collective management system in order to avoid further complications and the creation of new weaknesses in the legal framework.
The Supreme Court recently ruled that an employer can demand that an employee inform it of any additional activities that he or she undertakes during the employment period. If the employee fails to do so, this can justify his or her employment contract being terminated upon notice. The judgment confirms the court's existing position in this regard. However, the court's second conclusion concerning data protection is new and may raise doubts regarding its compliance with the Labour Code.
There is a need for Polish patent law to provide for an explicit procedure that allows for the amendment of patent claims during invalidity proceedings. Although two theoretical options exist, the lack of well-established case law means that their viability remains uncertain. However, it is hoped that the admissibility of these options will be assessed by the Patent Office and the courts in the near future, as patent holders have become more interested in exploiting less obvious means of defending their patents.
The legislature recently adopted changes that could be of major importance for entities that provide IT systems to the courts and judicial authorities. According to the Act amending the Act on the Common Court System, the minister of justice will acquire the right to decide unilaterally whether judicial authorities can use software if an important state or justice interest requires an efficiency of performance or continuity of operation and an agreement with a copyright holder is troublesome.
The Act Amending the Act on the Employment of Temporary Workers and Certain Other Acts recently entered into force. It introduces important changes and limitations concerning temporary work and aims to improve the temporary work market and counteract abusive practices. The amendment concerns all employers that hire temporary workers.
Under the Industrial Property Law, a rights holder may demand that an infringer surrender any benefits obtained unlawfully by way of trademark infringement. In practice, calculating the amount of profits can be challenging. While the amount of profits should be calculated on a case-by-case basis, there are some general principles that should be considered.
In a recent judgment concerning an employment agreement concluded with a pregnant woman, the Supreme Court stated that the actual and real performance of an employment relationship is decisive for determining whether the parties actually concluded an employment contract. Entitling a document 'employment agreement' and having it signed by the parties does not determine its legal status – rather, it is crucial that work is performed on the basis provided for in the employment contract.
The Industrial Property Law does not explicitly mention the possibility of assessing patent infringement under the doctrine of equivalents. However, the doctrine seems to be gaining support among legal commentators and judges. The admissibility of the doctrine of equivalents in Poland has long been the subject of lively discussion, which may soon be concluded with definite answers.
The Supreme Court recently decided that bringing a claim against an employer for the unlawful termination of an employment contract pursuant to Article 45(1) of the Labour Code is not a prerequisite to obtaining an award of damages pursuant to Article 18(3d) of the code. The decision fundamentally changes the risks associated with serving a termination notice and terminating an employment contract and enables employees to make claims long after their employment has been terminated.
Article 79(1)(3)(b) of the Copyright Act allows a rights holder to demand double the amount of damages for an infringement or, if the infringement was culpable, three times the amount of appropriate remuneration. This regulation was partly invalidated by the Constitutional Tribunal in mid-2015, and the European Court of Justice advocate general recently delivered an opinion that this provision may not agree with the EU IP Rights Enforcement Directive (2004/48/EC).