A few comments on the use of self-employment in violation of Art. 22 of the Labour Code: conclusions from NCN Project No. 2018/29/B/HS5/02534 

The main objective of the foregoing study is to show the causes and circumstances of the use of self-employment in violation of Art. 22 of the Labour Code, as well as an attempt to find solutions to effectively and efficiently combat fictitious self-employment. The legal solutions in force in this regard are not sufficient, and the scale of abuse is enormous. It is estimated that in Poland the number of self-employed people operating in conditions characteristic of an employment relationship varies between 130,000 and 180,000, although in my opinion these figures are greatly underestimated. The considerations presented here are the result of the research conducted under the direction of profesor Tomasz Duraj within the framework of a research grant funded by the National Science Centre entitled ”In search of a legal model of self-employment in Poland. Comparative legal analysis” (contract No. UMO-2018/29/B/HS5/02534 for research project No. 2018/29/B/HS5/02534).

ASJC: 3308, JEL: K31

The legal definition of an employment relationship as a means of distinguishing between labour and non-labour forms of employment 

The aim of this text is to consider the functions which are fulfilled by the legal definition of an employment relationship in Polish labour law. The evolution of legal regulation as well as the labour courts’attitude lead to the conclusion that the definition provided for in the Art. 22(1) of Labour Code may fulfil only to the limited extent the function of distinguishing between employment relation and civil law forms of employment. The postulates to include new criterions determining the existence of an employment relationship to the aforementioned regulation should be evaluated in a careful and restrictive way. On the other hand, the meaning of the legal definition of an employment relationship may be newly considered in the light of ILO position on facilitating the determination of the existence of employment relationship, including the proposal to provide for a legal presumption of aforesaid relationship.

ASJC: 3308, JEL: K31

This paper tackles the issue of the personal scope of the right to disconnect as the right of a worker to refrain from engaging in work-related tasks and not to participate in communication with employer for a work-related purpose, in particular communication via digital tools such as email and telephone. The reference point of the analysis undertaken will be the EU directive draft regulating the right of workers to disconnect contained in the European Parliament resolution adopted on 21 January 2021. The issue addressed is part of a broader discussion on the legal model of labour provision that has long accompanied the academic debate among Polish and foreign labour law scholars. The prevailing view among those working on this topic, which is correct in principle, is that the protection of employment law should be extended to self-employed workers. There are differences of opinion as to how such protection would be implemented and, in particular, to whom it would apply and to what extent it would apply.

ASJC: 3308, JEL: K31

This paper was written as a part of the project “Pojęcie pracownika. Koniecznośćredefinicji granic stosunku pracy”[The concept of employee. The need for redefinition of the boundaries of the employment relationship], founded by the (Polish) National Science Centre on the basis of decision number DEC-2020/39/B/HS5/00037

Constitutive elements of remote work

The article aims to indicate the elements that make up the legal structure of remote work introduced thanks to the amendment to the provisions of the Labour Code. Structural elements are those components of a legal institution that identify its specificity and simultaneously emphasize its separateness from the previous institution in the form of telework.

ASJC: 3308, JEL: K31

ASJC: 3308, JEL: K31

Violation of the law by the employer when agreeing the rules of soberity control with the employer’s trade unions

This article critically assesses the regulation, which entered into force on February 21, 2023, with regards to the procedure for establishing preventive sobriety control for employers with trade unions. The new solutions, on one hand, grant the employer the right to control the sobriety of employees if it is necessary to ensure the protection of employees or other persons’life and health or the protection of property, on the other hand it entangles the employer into an imperfect model of coordinating the rules of this control in the labour regulations. In practice, trade unions have the opportunity to block the introduction of intra-company sobriety control regulations, and at the later stage, to change them. Taking into account the purpose of this control the Author points out arguments in support of the thesis that is permissible to amend the working regulations against the will of the trade union party, which obstructionism prevents the introduction or modification of the already existing system of employee sobriety control.

ASJC: 3308, JEL: K31

Collective bargaining as an instrument for counteracting abuses in atypical employment

Workers working outside the employment relationship do not enjoy full statutory protection of their work. The law protects them only in selected areas (e.g. minimum hourly rate). Moreover, civil law contracts as a legal basis of employment, are often abused. Collective bargaining can play an important role in protecting workers. It can limit employment outside the employment relationship as well as guarantee certain working and pay conditions. For factual and legal reasons, the potential of collective bargaining is not used. In order to improve the situation, greater activity of social partners is needed, but also a reconstruction of the legal framework for the social dialogue.

ASJC: 3308, JEL: K31

The multiplication of the basis of employment and the legal consequences of this on the basis of the social insurance law

The article presents the rules of overlapping of pension and disability insurance titles in Poland. The Act on the Social Insurance System makes it possible to be subject to pension and disability insurance under more than one insurance title. The introduced model is not immune to the multiplication of insurance titles. The multiplication, the purpose of which is to divide the insurance title, makes it possible to pay lower premiums, but it also significantly reduces the level of protection of the insured and the income of the Social Insurance Fund. The author puts forward a proposal for simplifying the rules governing pension and disability insurance. The article also assesses the introduction of changes resulting from the KPOiZO aimed at equalising the social protection granted to persons employed on the basis of an employment relationship and civil law contracts.

ASJC: 3308, JEL: K31

Controversy over the social security coverage of performing artists

Judgments of the Polish Supreme Court on the subject of social insurance for performing artists have caused controversy in the doctrine. It was criticized that the Court avoided assessing the creative or artistic nature of the work, because these are not elements determining the legal nature of the contract covered by the insurance. In this text, the author analyzes the views of the doctrine expressed in response to the judgments of the Supreme Court. He presents the opinion that the assessment of the legal qualification of a contract the subject of which is artistic activity is the domain of civil law. Neither copyright law nor social security law justify an autonomous interpretation of this agreement.

ASJC: 3308, JEL: K31