edited by Krzysztof W. Baran

outline of polish labour law system edited by Krzysztof W. Baran Krzysztof W. Baran, Bolesław M. Ćwiertniak Dominika Dörre-Kolasa, Zbigniew Góral Mariusz Lekston, Krzysztof Walczak Mirosław Włodarczyk, Marcin Wujczyk

outline of polish labour law system edited by Krzysztof W. Baran Krzysztof W. Baran, Bolesław M. Ćwiertniak Dominika Dörre-Kolasa, Zbigniew Góral Mariusz Lekston, Krzysztof Walczak Mirosław Włodarczyk, Marcin Wujczyk Zamów książkę w księgarni internetowej WARSZAWA 2016

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ABOUT THE AUTHORS Krzysztof W. Baran Professor and Head of the Chair of Labour Law and Social Policy of the Jagiellonian University in Kraków. He has a broad expertise and tutoring experience in training human resources staff. He is the author and co-author of about 200 publications embracing several monographs, textbooks and commentaries, including commentaries to the Labour Code and collective labour law acts. Professor is also the editor-in-chief of the fundamental for the Polish labour law twelve-volume publication on the Polish labour law system: System prawa pracy. Bolesław Maciej Ćwiertniak Professor at the Institute of Administration and Law at Humanitas University in Sosnowiec. He is Secretary of Legal and Economic Studies Committee at the Polish Academy of Sciences Branch in Katowice and the author and co-author of over 160 publications in the field of labour law and social policy, civil service, local government law. Dominika Dörre-Kolasa Doctor of Law, lecturer at the Chair of Labour Law and Social Policy of the Jagiellonian University in Kraków, legal advisor. She is a recognised expert in the field of protection of personal rights and the author of several publications on labour law, including those pertaining to the protection of personal data and personal rights of employees, workplace monitoring, harassment and mobbing. Zbigniew Góral Professor at the University of Łódź, Head of the Chair of Labour Law, former Vice-Chancellor and Dean of the Faculty of Law and Administration. He is the author of about 150 publications concerning labour law, civil service, unemployment, and collective labour law. Mariusz Lekston Doctor of Law and Vice-Chancellor for Organizational, Legal and Human Resources Affairs at Humanitas University in Sosnowiec. He represents the University with respect to labour law matters. He is Assistant Professor at the Institute of Administration and Law at Humanitas University and the author of publications in the field of labour law, including those covering issues of employment of academic teachers and uniformed services.

6 About the authors Krzysztof Walczak Professor at the Faculty of Management of the University of Warsaw, partner and consultant in a legal firm. He is the author of over 150 publications in the field of Polish and European labour law and co-author of commentaries to the Labour Code and collective labour law acts. Mirosław Włodarczyk Professor and Head of the Chair of the Law of Social Security and Social Policy at the University of Łódź, Supervisor of PhD studies at the Faculty of Law and Administration. He is the author of about 70 academic publications concerning the sources of labour law, subjects and content of the employment relationship, employment of young people and children, and regulation of the labour market. Marcin Wujczyk Doctor of Law and Assistant Professor at the Chair of Labour Law and Social Policy at the Jagiellonian University in Kraków. Since 2013 he has been a member of the European Committee of Social Rights of the Council of Europe. In the years 2014-2015 he conducted research on discrimination in employment as an academic visitor at Oxford University. He holds the position of Secretary in Labour Law and Social Policy Studies at the Jagiellonian University. He is also a member of the Editorial Board of the European Journal of Social Security (EJSS) and a national correspondent for European Labour Law Cases. Since 2015 he has been a member of the Executive Committee of the International Labour and Employment Relations Association (ILERA). He is the author of a number of publications on individual and collective employment and labour law, including a monograph Wypowiedzenie zmieniające concerning conditions for termination of an employment contract and the award-winning book on the employee s right to privacy protection Prawo pracownika do ochrony prywatności.

TABLE OF CONTENTS TITLE ONE GENERAL LABOUR LAW 19 Chapter I The concept and subject-matter of labour law 21 1. Definitions of labour law 21 2. Classification of labour law 24 3. Characteristics of labour law 25 3.1. General notes 25 3.2. Uniformity and differentiation of labour law 26 3.3. Europeanisation of labour law 26 Chapter II Labour law in the Polish legal system 28 1. General notes 28 2. Labour law and civil law 28 3. Labour law and social insurance law 29 4. Labour law and copyright law 30 5. Labour law and constitutional law 30 6. Labour law and administrative law 31 7. Labour law and criminal law 31 8. Labour law and international law 32 Chapter III Functions of labour law 33 1. Overview of functions of labour law 33 2. Protective function of labour law 34 3. Organisational function of labour law 35 4. Irenic function of labour law 36 5. Redistributive function of labour law 38 Chapter IV Interpretation of provisions of labour law 40 1. The concept and subject-matter of interpretation of labour laws 40

8 Table of contents 2. Types of interpretation of labour law provisions 41 3. Process of interpretation of labour laws 42 4. Loopholes in labour law 43 Chapter V Principles of labour law 45 1. The concept and meaning of labour law principles in the Polish labour law doctrine 45 2. Systematisation of the principles of labour law 47 3. Functions of labour law principles 49 4. Characteristics of fundamental principles of labour law set out in the Labour Code 51 4.1. Principle of the right to work and the freedom of labour 51 4.2. Principle of freedom to enter employment relationship and to determine the terms of employment 54 4.3. Principle of respect by an employer of employee s dignity and of other employee s personal rights 56 4.4. Principle of equal treatment and non-discrimination in employment 59 4.5. Principle of the right to fair remuneration for work 60 4.6. Principle of the right to rest 63 4.7. Principle of provision by an employer of safe and healthy working conditions 65 4.8. Principle of meeting the vital, social and cultural needs of employees 67 4.9. Principle of facilitation of skills upgrading 68 4.10. Favourability principle (zasada uprzywilejowania pracownika) 69 4.11. Fundamental principles of collective labour law 72 Chapter VI Overview of the history of the Polish labour law 74 Chapter VII Equal treatment in employment 78 1. The concept of equal treatment 78 2. Principle of equal treatment in employment 79 3. Forms of discrimination 79 4. Harassment and sexual harassment 80 5. Justified differentiation 81 6. Consequences of breach of the principle of equal treatment in employment 81 Chapter VIII Sources of labour law 83 1. The concept and hierarchy of sources of labour law 83 2. General sources of labour law 85 2.1. Constitution of the Republic of Poland 85 2.2. Acts/laws (ustawy) 86 2.3. Regulations (rozporządzenia) 88 3. Specific sources of labour law 89 3.1. Collective agreements 89 3.1.1. Legal nature of collective agreements 89 3.1.2. Personal scope of collective agreements 90

Table of contents 9 3.1.3. Material scope of collective agreements 91 3.1.4. Procedures for the conclusion of collective agreements 93 3.1.5. Registration of collective agreements 94 3.1.6. Entry into force of collective agreements 96 3.1.7. Transformations of collective agreements 96 3.1.8. Termination of collective agreements 97 3.1.9. Sectoral collective agreements (ponadzakładowe układy zbiorowe pracy) 99 3.1.10. Company-level collective agreements (zakładowe układy zbiorowe pracy) 100 3.2. Agreements in connection with transfer of business to a new employer 102 3.3. Agreement on suspension of provisions of labour law 103 3.4. Agreements on application of less favourable terms and conditions of employment 104 3.5. Teleworking agreements 105 3.6. Social agreements (porozumienia społeczne) 105 4. Internal regulations 106 4.1. Internal rules (regulaminy) 106 4.1.1. Wage rules (regulamin wynagradzania) 107 4.1.2. Work rules (regulamin pracy) 109 4.2. Statutes (statuty) 110 5. International labour law 111 5.1. International labour regulations 112 5.2. Labour law of the Council of Europe 113 5.3. Legal acts adopted in the European Union and their effect 114 5.4. Areas covered by European labour law 116 TITLE TWO INDIVIDUAL LABOUR LAW 119 Chapter IX Employment relationship 121 1. Concept and nature of employment relationship 121 1.1. Concepts of employment relationship 121 1.2. Characteristics of employment relationship 122 2. Labour law employment relationship (stosunek pracy) and other employment relationships (stosunki zatrudnienia) 125 2.1. The concepts of self-employment and employment 125 2.2. Types of non-employee employment (employment not between an employee and an employer) 126 2.3. Elements of the labour law employment relationship 129 3. Parties to the labour law employment relationship 130 3.1. General notes 130 3.2. Employee 132 3.3. The concept of an employer 133 3.4. Employer a natural person 134 3.5. Employer an organisational unit 135 3.6. Representation of an employer being an organisational unit 138

10 Table of contents Chapter X Contract of employment 140 1. Internal and external recruitment 140 2. Protection of personal data of job candidates and employees 140 3. Types of contracts of employment 142 3.1. Contract for a probationary period (umowa na okres próbny) 142 3.2. Contract for a fixed term (umowa na czas określony) 143 3.3. Contract of employment for an indefinite term (umowa o pracę na czas nieokreślony) 144 4. Telework 144 5. Contents of a contract of employment 145 Chapter XI Transformations of an employment relationship 147 1. Change of an employment relationship 147 2. Agreement to amend the terms and conditions of employment (porozumienie zmieniające) 150 3. Notice of amendment of the terms and conditions of a contract of employment (wypowiedzenie zmieniające warunki umowy o pracę) 152 4. Assignment of an employee to other work 162 5. Temporary change of terms and conditions of a contract of employment resulting from specific regulations 166 Chapter XII Termination of an employment relationship 168 1. Introduction 168 2. Agreement between the parties 169 3. Restrictions on termination of a contract of employment 169 3.1. General protection of sustainability of an employment relationship 169 3.2. Consultation (with a company trade union organisation) of the intention to terminate a contract for an indefinite term 170 3.3. Consultation (with a company trade union organisation) of the intention to terminate a contract of employment without notice 172 3.4. Special protection of sustainability of an employment relationship 173 3.5. Restrictions on termination of a contract of employment by reason of personal or family situation of an employee 173 3.5.1. Protection of the employment relationship during a pre-retirement period 173 3.5.2. Protection of the employment relationship during a period of excusable absence 174 3.5.3. Protection of the employment relationship of pregnant women or women during maternity leave 175 3.6. Restrictions on termination of a contract of employment based on the employee s function 176 3.6.1. Special protection of sustainability of the employment relationship of employees performing trade union functions 176

Table of contents 11 3.6.2. Special protection of sustainability of the employment relationship of members of workers council 184 3.6.3. Special protection of sustainability of the employment relationship of a social labour inspector 185 4. Termination of a contract of employment upon notice 185 4.1. Notice of termination of a contract of employment as a unilateral declaration of will 185 4.2. Scope of application of a notice of termination as a method of termination of a contract of employment 188 4.3. Formal requirements 189 4.4. Notice periods for termination of a contract of employment 193 4.5. Reduction of a notice period 196 4.6. Job-search leave of absence (zwolnienie na poszukiwanie pracy) 198 5. Termination of a contract of employment without notice 199 5.1. Termination of a contract of employment without notice by an employer 200 5.1.1. Termination of a contract of employment without notice by an employer for reasons attributable to an employee 200 5.1.2. Termination of a contract of employment without notice by an employer for reasons not attributable to an employee 203 5.2. Termination of a contract of employment without notice by an employee 205 5.2.1. Termination of a contract of employment without notice by an employee for reasons not attributable to an employer 205 5.2.2. Termination of a contract of employment without notice by an employee for reasons attributable to an employer 206 6. Legal consequences of defective termination of a contract of employment 207 6.1. Legal consequences of defective termination of a contract of employment upon notice 207 6.2. Legal consequences of defective termination of a contract of employment without notice by an employer 210 6.3. Legal consequences of defective termination of a contract of employment without notice by an employee 212 7. Other cases of termination of a contract of employment by an employee 213 7.1. Termination of a contract of employment in connection with reinstatement 213 7.2. Termination of a contract of employment in connection with acquisition of an employee by a new employer 215 8. Expiration of a contract of employment 215 8.1. Death of an employee 215 8.2. Death of an employer 215 8.3. Employee s absence from work caused by pre-trial detention 215 8.4. Claims in connection with expiration of an employment relationship 216 Chapter XIII Transfer of an establishment to another employer 217 1. The concept of transfer of an establishment or a part of an establishment to another employer 217 2. Succession of obligations 218

12 Table of contents 3. Negotiations with an employees representation and information obligation in the absence of trade unions 219 4. Rights of employees 220 Chapter XIV Employment of temporary agency workers 222 1. Introduction 222 2. Restrictions on temporary agency work 222 2.1. Material restrictions 223 2.2. Time restrictions of temporary agency work 223 2.3. Personal restrictions 224 2.3.1. User-employer 224 2.3.2. Temporary-work agency 225 3. Conclusion and content of a temporary work contract 225 4. Protection of a temporary agency worker against discrimination 228 Chapter XV Non-contractual employment relationships 229 1. The concept and classification of non-contractual employment relationships 229 1.1. The concept and origins of non-contractual employment relationships 229 1.2. Classification of non-contractual employment relationships 231 2. Employment relationship by election (wybór) 231 2.1. The scope of employment relationships by election 231 2.2. Legal nature of an employment relationship by election 232 2.3. Establishment of an employment relationship by election 233 2.4. Admissibility of amendment of the terms and conditions of employment by election 234 2.5. Ending the employment relationship by election 234 2.6. Rights and obligations of elected employees 236 3. Employment relationship by appointment (powołanie) 237 3.1. The scope of employment relationships by appointment 237 3.2. Legal nature of the act of appointment 239 3.3. Establishment of an employment relationship by appointment 240 3.4. Admissibility of amendment of the terms and conditions of employment by appointment 241 3.5. Ending the employment relationship by appointment 243 3.6. Terms of employment relationship of appointed employees 245 4. Employment relationship by nomination (mianowanie) 246 4.1. The scope of employment relationships by nomination 246 4.2. Legal nature of the act of nomination 247 4.3. Establishment of an employment relationship by nomination 248 4.4. Amendment of the terms and conditions of employment by nomination 250 4.5. Ending the employment relationship of nominated employees 252 4.6. Terms of employment relationship of nominated employees 254

Table of contents 13 Chapter XVI Rights and obligations of the parties to an employment relationship 256 1. Obligations of an employer 256 1.1. Information obligation 256 1.2. Obligation to properly organise work 259 1.3. Obligation to prevent discrimination 260 1.4. Obligation to ensure safe and healthy working conditions 261 1.5. Obligation to pay wages timely and properly 261 1.6. Obligation to facilitate upgrading of professional skills 262 1.7. Obligation to create an environment conducive to adaptation to proper performance of work 262 1.8. Obligation to meet social needs of employees 263 1.9. Obligation to apply objective and fair criteria of evaluating employees 263 1.10. Obligation to keep documentation and personnel files 264 1.11. Obligation to foster development of the rules of social coexistence in the workplace 264 1.12. Obligation to prevent mobbing 265 1.13. Obligation to issue an employment certificate (świadectwo pracy) 267 1.13.1. Contents of an employment certificate 269 1.13.2. Legal fictions in the employment certificate 269 1.13.3. Procedure for rectification of the employment certificate 270 2. Claim for compensation 271 3. Obligations of an employee 272 3.1. Obligation to perform work diligently and with due care 272 3.2. Obligation to comply with superiors instructions 273 3.3. Employee s obligations relating to order at the workplace 274 3.4. Obligation to have regard for the welfare of the establishment 275 3.5. Obligation of secrecy 277 3.6. Obligation to comply with the rules of social coexistence 278 Chapter XVII Non-compete obligation 280 1. General principles 280 2. Restrictions on competitive activity in the absence of non-compete agreement 281 3. Non-compete agreement during the term of employment relationship 282 4. Post-employment non-compete agreement 282 Chapter XVIII Remuneration for work 285 1. Legal bases for wage setting 285 2. Prohibition of wage discrimination 288 3. Protection of remuneration for work 289 3.1. Rules of payment of remuneration 289 3.2. Restrictions on deductions from remuneration 290 4. Benefits in the case of non-performance of work 291 5. Benefits payable to an employee in connection with ending an employment relationship 293 6. Protection of employees claims in case of the employer s insolvency 294

14 Table of contents Chapter XIX Working time 296 1. The concept of working time 296 2. Number of working hours 297 3. Rest period 298 4. Working time systems 298 5. Overtime work 302 6. Duty hours 304 7. Working time of managers 305 8. Work at night 306 9. Work on Sundays and on public holidays 307 Chapter XX Leaves 309 1. Annual leave 309 1.1. Essential elements of the concept of annual leave 309 1.2. Acquisition of right to the annual leave 310 1.3. Amount of the annual leave 310 1.4. Rules for granting of leave 312 1.5. Deferral of the leave in unforeseen circumstances 313 1.6. Proportionate leave 315 1.7. Leave on demand 315 1.8. Termination of a contract of employment and the right to annual leave 316 2. Unpaid leave 316 3. Special leaves (zwolnienia okolicznościowe) 317 Chapter XXI Liability for breach of order at the workplace and disciplinary liability 319 1. General notes 319 2. Liability for breach of order at the workplace (odpowiedzialność porządkowa) 319 2.1. Legal nature and conditions of liability for breach of order at the workplace 319 2.2. Infringements and penalties for breach of order at the workplace 320 2.3. Procedure for imposing penalties for breach of order at the workplace 321 2.4. Appeals procedure 324 2.5. Declaring the penalty null and void 325 3. Disciplinary liability (odpowiedzialność dyscyplinarna) 326 3.1. Personal scope and conditions of disciplinary liability 326 3.2. Types of disciplinary penalties 327 3.3. Disciplinary boards and disciplinary prosecutor 328 3.4. Disciplinary procedure and judicial review of disciplinary decisions 328 3.5. Deletion of penalty from files (zatarcie kary) 329 3.6. Minor infringements 330 Chapter XXII Financial liability of employees 331 1. Legal nature and conditions of financial liability of employees 331 2. Financial liability for the damage caused by the employee unintentionally 335

Table of contents 15 3. Financial liability for the damage caused by the employee intentionally 336 4. Liability for damage caused to a third party 337 5. Responsibility for the entrusted property 338 5.1. Financial liability for the damage caused by the employee to the entrusted property 338 5.2. Mitigation of liability for the entrusted property 341 5.3. Joint liability of employees for the entrusted property 343 6. Limitation of claims 345 Chapter XXIII General protection of labour 346 1. Introduction 346 2. Basic obligations of an employer in respect of the occupational health and safety (OHS) 347 2.1. Responsibility for health and safety at work 347 2.2. Obligation to cooperate with other employers 347 2.3. Training obligation 348 2.4. Obligation to familiarise the employees with OHS rules and regulations 348 2.5. Obligations in respect of preventive health care of employees 348 2.5.1. Obligation to inform of occupational risk 348 2.5.2. Obligation to prevent occupational diseases and other work-related diseases 349 2.5.3. Obligation to perform preventive medical examinations 350 2.6. Obligation to provide employees with supportive drinks and meals 351 2.7. Obligation to provide employees with appropriate hygiene and sanitary facilities and necessary personal hygiene and sanitary products 351 2.8. Other obligations of the employer 352 3. Rights and obligations of employees in respect of occupational health and safety 352 3.1. Right to refrain from work 352 3.2. Obligation to comply with OHS rules and regulations 353 4. Labour protection bodies 355 4.1. OHS service 355 4.2. Occupational health and safety commission 356 4.3. Consultations on occupational health and safety 356 5. Compensation for property lost or damaged in connection with an accident at work 357 Chapter XXIV Protection of parenthood 358 1. Introduction 358 2. Prohibition on the employment of women in work which is particularly arduous or harmful to health 359 3. Principles of employment of pregnant workers 360 4. Leaves connected with raising children 361 5. Rights of employees raising children 364 6. Special protection of sustainability of employment relationship 365

16 Table of contents Chapter XXV Employment and protection of work of young people and children 367 1. Employment of adolescents 367 1.1. Introduction 367 1.2. Contract of employment for vocational preparation (umowa o pracę w celu przygotowania zawodowego) 369 1.3. Protection of health of young workers 371 1.4. Employment of adolescents under a contract of employment for performing light-duty work 372 2. Employment of children below 16 years of age 373 TITLE THREE COLLECTIVE LABOUR LAW 377 Chapter XXVI Freedom of association 379 1. Introduction 379 2. Freedom of association in trade unions and employers organisations 380 2.1. Freedom of association in trade unions 380 2.2. Freedom of association in employers organisations 382 2.3. Models of organisation of workers and employers movement 383 3. Independence of trade unions and employers organisations 385 4. Self-governance of trade unions and employers organisations 388 Chapter XXVII Legal status of trade unions 393 1. Establishment of trade unions 393 2. Registration of trade unions 394 3. Functions of trade unions 396 4. Powers of trade unions 398 Chapter XXVIII Employers organisations 405 1. Establishment of employers organisations 405 2. Registration of employers organisations 406 3. Functions and powers of employers organisations 407 Chapter XXIX Employee participation 409 1. Introduction 409 2. Ad hoc representatives 409 3. Workers councils 410 4. European Works Council 413 5. Other forms of employee participation 415 Chapter XXX Social dialogue 416 1. The concept of social dialogue 416

Table of contents 17 2. Council of Social Dialogue (Rada Dialogu Społecznego) 417 2.1. Competences of the Council of Social Dialogue 418 3. Voivodeship (provincial) councils of social dialogue (wojewódzkie rady dialogu społecznego) 420 4. Social dialogue in the law-making process 421 5. Social dialogue on the labour market 421 6. Social dialogue in matters relating to occupational health and safety 422 7. Participation of representatives of social partners in supervision of public institutions as a form of social dialogue 422 8. Social dialogue in the establishment 424 Chapter XXXI Collective labour disputes 425 1. Introduction 425 2. The subject-matter of a collective labour dispute 426 3. Parties to a collective labour dispute 428 4. Initiation of a collective labour dispute 430 5. Methods of resolving collective labour disputes 430 6. Irenic methods of resolving collective labour disputes 431 6.1. Conciliation 431 6.2. Mediation 433 6.3. Arbitration 434 7. Non-irenic methods of resolving collective labour disputes 436 7.1. Strike 436 7.1.1. Right to strike 436 7.1.2. Restrictions of the right to strike 437 7.1.3. Principles of organisation of a strike 439 7.2. Other industrial actions 443 7.3. Lockout 444 TITLE FOUR PROCEDURAL LABOUR LAW 447 Chapter XXXII Legal protection of labour relations 449 1. Models of legal protection in labour relations 449 2. Out-of-court legal protection bodies 450 3. Labour courts 452 3.1. Organisation of labour courts 452 3.2. Powers of labour courts 453 3.2.1. Introduction 453 3.2.2. Matters involving claims arising from employment relationship 453 3.2.3. Matters involving employment-related claims 454 3.2.4. Matters involving claims arising from other legal relationships to which provisions of labour law apply under separate laws 456 3.2.5. Actions for compensation against an employer in the event of accidents at work and occupational diseases 457

18 Table of contents 3.2.6. Actions to establish existence or non-existence of a legal relationship or rights under an employment relationship 457 Chapter XXXIII Labour inspection 459 1. Introduction 459 2. National Labour Inspectorate (Państwowa Inspekcja Pracy, PIP) 460 3. Social labour inspection 463 4. Other supervisory and control bodies 464 Chapter XXXIV Limitation of claims and final deadlines 466 1. Introduction 466 2. Limitation of claims (przedawnienie roszczeń) 467 3. Final deadlines (terminy zawite) 474 Chapter XXXV Accidents at work and occupational diseases an overview 476 1. Introduction 476 2. Accidents at work 477 3. An accident equivalent to an accident at work 480 4. Procedure for determining circumstances and causes of accidents at work 481 5. Occupational diseases 481 6. Benefits in respect of accidents at work and occupational diseases 483 Index 485

TITLE ONE GENERAL LABOUR LAW

Chapter I THE CONCEPT AND SUBJECT-MATTER OF LABOUR LAW 1. Definitions of labour law Definitions of basic concepts relevant to certain fields of study are of major importance both in empirical sciences and in practical application of the law. In the Polish literature on the subject, the term of labour law appeared rather late, during the interwar period, although in a rather limited scope. The terms used more frequently at that time were: workers law, industrial law, workers and industrial law, factory legislation or similar. The term labour law became popular at the end of the interwar period and definitely prevailed after the World War II. It became a legal term even later, under the Act of 26 June 1974 Labour Code (ustawa z dnia 26 czerwca 1974 Kodeks pracy). 1 In several legal acts of the interwar period, the set of norms governing the material scope of employment relationships (e.g. relating to industrial workers) was called provisions on the contracts of employment 2 and after the war the legal texts used the term labour legislation 3 without giving legal definitions of those terms. Therefore, by reference to the latter, it is possible to distinguish between scholarly definitions and legal (normative) definitions of labour law. Initially, the legal doctrine defined labour law as a set of norms determining the employee status (called status definitions). Soon such definitions were considered too narrow and not corresponding with the scope of the labour law as a branch. At that time, definitions of labour law as a separate branch of the legal system of the Republic of Poland, governing employment relations and other social relations directly linked to employment relations, became more popular. 1 Consolidated text: Journal of Laws [Dz.U.] of 2014, item 1502 as amended. 2 Regulation of the President of the Republic of Poland of 27 June 1934 Commercial Code (Rozporządzenie Prezydenta RP z dnia 27 czerwca 1934 Kodeks handlowy; Journal of Laws [Dz.U.] no. 57, item 502 as amended). 3 See, for example, Article XII 1 of the Act on implementation of the Civil Code. B.M. Ćwiertniak

22 Chapter I. The concept and subject-matter of labour law Therefore, the literature developed a specific standard method of defining and the related definitions of labour law which may be called standard definitions 4. Both types of the definitions have certain functional elements called ontological, systemic and subject-matter: 1) the first one assumes existence of labour law (as a specific set of legal norms), 2) the second treats such set of norms as a separate, independent branch of a given legal system, and 3) the third makes reference to the set of legal norms ( subject-matter of labour law ). Since the time of codification of the labour law, our legal system has used the legal definition of labour law. It should be understood as: ( ) provisions of the Labour Code and provisions of other laws (ustawy) and implementing acts (akty wykonawcze) regarding the rights and obligations of workers and employers, as well as provisions of collective agreements (układy zbiorowe) and other collective arrangements (porozumienia zbiorowe) based on laws, internal rules (regulaminy) and statutes (statuty) concerning the rights and obligations of parties to an employment relationship. It should be noted that consecutive paragraphs of the abovementioned article establish a specific hierarchy of sources of labour law. Definitions of labour law assume for an element the subject-matter of a given branch of law. It is rightly pointed out that no such social relations exist which would generally be uniform in nature and grouping, systematisation and classification of such relations are logical measures based on a stated convention. Through arbitrary convention lawyers have determined also the subject-matter of labour law and agreed that this branch of law governs all social relations relating to subordinated work of people. Quite commonly, those relations were called labour law relations. Although the previously mentioned definitions of labour law give an impression of uniformity of opinions on these matters, the subject-matter of labour law still remains very controversial and the views on the labour law still vary in terms of time and space. As noted earlier, such social employment relations must be defined formally, through arbitrary convention. In this regard, a reference can be made to general remarks of legal academics according to which in the absence of appropriately general criteria the subject-matter of labour law should be distinguished not through a classic definition by genus and differentia specifica but through specification of its component parts. Each author of such definition, having specified the employment relationships, to further determine the subject-matter of labour law must list and indicate those groups of social relations which he considers practically related to work. A relatively broader consensus was achieved in relation to the concept of employment relationship. It is assumed that such relationship should be an obligation relationship 4 However, some handbooks still use definitions which refer to the employee status. B.M. Ćwiertniak

1. Definitions of labour law 23 and have a homogeneous structure. And the scope of employment relationships should be determined by the already defined criteria which distinguish them from other obligation relationships, such as: continuity of work, remuneration, performance, subordination of an employee and risk of the employer associated with the work process. However, it is still pointed out that such criteria do not ensure precise delimitation of those relationships. In this context, the legal nature of specific relations was often determined by case-law which developed, under the same legal provisions (Articles 2, 3, 22 of the Labour Code), the variable scope of that concept. Even more discussions and scholarly disputes, causing far-reaching consequences in the practice of law enforcement authorities, arise from removal of those areas of social relations which should be considered directly and intrinsically linked to employment relationships. This applies both to specification of the groups (types) of social relations which should be a part of the subject-matter of labour law and to determination of the scope of social relations which should be included in each of those groups. Those relations were presented in our literature on the subject in different ways: 1) by placing them on the time axis and comparing their duration to the duration of an employment relationship, 2) by taking into account both the subject-matter and the method of legal regulation of the relationships included in the labour law (see section 2 of this chapter). Historically older is the first one, where the following relationships are distinguished besides the employment relationship: 1) relationships preceding the employment relationship, 2) relationships established along with the employment relationship and concurrent with the employment relationship or even exceeding its term, 3) relationships resulting from the already terminated employment relationship. The relationships preceding the employment relationship include mainly: job matching, job counselling, vocational training (nauka zawodu), apprenticeship (przyuczenie do określonej pracy), legal relations connected with the conclusion of employment relationships (such as competitions, preliminary contracts); it is questionable whether some new types of social relationships, such as relationships related to internship or volunteering, should be included in this group. The second group includes relations connected with the collective rights (of groups of workers, e.g. benefits from the company social benefits fund or, as argued by some scholars, occupational pension schemes), employee co-management relationships, relationships involving establishment of and participation in professional organisations (employers organisations, workers organisations, mainly trade unions). This group includes also relations within individual and collective labour disputes. Some legal scholars include in this category also legal relations concerning supervision over B.M. Ćwiertniak

The book is a complete analysis of the institution of the Polish labour law. It covers issues regarding both individual and group working relationships, especially those which involve trade unions, workers councils and European works councils. Topics referring to the job market and the role of the state in its regulation have also been touched upon. This comprehensive analysis of the Polish labour law will allow the readers to fully familiarise themselves with regulations of labour law which are binding in Poland. The book will be useful not only for the readers from abroad. A number of institutions of the Polish labour law are presented in great detail. Many cases introduce different views from judicial decisions and the most appropriate manner of interpreting the provisions. Owing to the above, this book will be of invaluable assistance to practitioners working in international corporations or for international clients. The publication takes into account the current legal status and new regulations introduced to the Labour Code with respect to contracts for a fixed term and parental leaves. ZAMÓWIENIA: INFOLINIA 801 04 45 45, FAX 22 535 80 01 ZAMOWIENIA@WOLTERSKLUWER.PL WWW.PROFINFO.PL CENA 159 ZŁ (W TYM 5% VAT)