Katarzyna Bomba

Many solutions for individual and collective labour law, which are currently in force in Poland, were established during the communist period and during the transition. As a result of the development of the legal system and socio-economic changes they do not meet the modern requirements of socio-economic development.

Noteworthy, in particular, is the personal scope of labour law. The authors point out that all work in accordance with Art. 24 of the Polish Constitution is under the protection of the law. Consequently, combining employment with the work of only those staff subordinated (art. 22 Polish Labour Code) seems too narrow. The problem of the personal scope of labour law is even more important when it is taken into consideration that in Poland more than 26% of the work is outside the employment relationship. Being covered by the provisions of the labour law is possible due to the established way of understanding the subordination of staff being abandoned, or removing subordination as a distinctive feature of worker status in favor of other criteria. These might include fixed performance of work for another person, the earning purpose of employment, and providing legal protection for persons who work under certain conditions. The authors consider methods of extending legal regulations applied to subordinate employees to date: through direct coverage of labour law to people providing jobs to those who are not subordinate, as well as those applied in references to labour law to the necessary extent, as is currently done in the case of, among others, contractors performing work in a cottage industry (Art. 304 (4) KP). The authors also evaluate the advantages and disadvantages of the methods mentioned above.

An important issue for the future of labour law is also the legal position of trade unions. The authors analyze two models of the organizational position of trade unions. The first is the model according to which unions operate primarily in the workplace, and their main powers are carried out by enterprise trade unions (as it is now in Poland). Regarding the second model, the organizational structure of trade unions is outside the workplace. Another important question that requires an answer is: who are represented by unions, their members or all employees? This is equivalent to the dilemma of choosing between the corporate model and the model of representation, which, in principle, we have to do under Polish labour law. Obviously, the choice of one of these competing model solutions involves important consequences, including the scope of entities covered by collective bargaining, the legal conditions of the right to strike, the legal character of autonomous legal acts which establishing involves trade unions, as well as the role non-union employee's representations.