Andrzej Marian Świątkowski Professor, Jesuit University Ignatianum in Kraków
Marcin W ujczyk
P hD , C hair o f Labour Law and Social Policy, Faculty o f Law and A dm inistration, Jagiellonian U niversity in Kraków
Labour law in the face of economic crisis
Introductory note
The episodic A nti-C risis Labour Act o f 1.07.2009 dealt w ith the current eco nom ic crisis.1 The Act o f 7.01.2009 introduced the concept o f econom ic standstill, the labour law institution, w hich allows tem porary suspension o f obligations o f the parties to individual em ploym ent relationships w itho ut the term ination o f the contract. It also introduced im p ortant changes in the em ploym ent o f workers under fixed term em ploym ent contracts. The A n ti-C ri sis Labour Act therefore, created for the employers the flexibility in m anaging their labour m atters. The issue on h an d however is th at th e above statute was tem porary and could have been applied only to employers, w ho for econom ic reasons find themselves in tem porary financial difficulties. However, if this law was applied for a period o f m ore th an tw o years, th en aside from the employers, the process w ould begin to involve trade union organizations, employees and state adm inistration bodies. For this reason, we have decided
1 This article is based o n a paper presented at the 10th E uropean Congress o f International L abour Law an d Social Security to the keynote speach delievered by Prof. d r h.c. M iguel Rodrigez-Pińero y Bravo-Ferrer “El D erecho del Trabajo y las relacionnes laborales ante los cam bios económ icos y sociales” (Labour Law an d L abour Relations in the Light o f the Eco nom ic an d Social Changes), Seville, Spain.
D ziennik Ustaw [Journal o f Laws o f the Republic o f Poland] o f 2009, no. 125, item 1035. The A ct was bin d in g un til 20 o f N ovem ber 2013; see: A .M . Świątkowski, Ustawa antykry-
zysowa z kom entarzem [The A nti-C risis L abour Act w ith C om m entary], Warszawa 2010;
L. M itrus, Anti-Crisis Regulations o f Polish Labour Law, E uropean Labour Law Journal, vol. 1, no. 2, 2010, p. 269 f f
to present the basic legal structures o f the A nti-C risis Labour Act at the Sevil la 10th E uropean Congress o f th e International Society for Labour Law and Social Security in 2011.
W e believe the Act was a serious constituent in altering th e m indset o f the social partners and representatives o f governm ent and public adm inistration on m atters relating to the function o f labour law. In the place o f sole em ploy ee protection, the standards introduced by the state, th e tem porarily relaxed labour laws created due to the econom ic crisis m ight lead in the future to a sustainable liberalization o f labour laws, which, according to us, should take into account no t only the protection o f workers’ rights, but also the interests o f employers, and fore m ostly the com m on good, being the econom ic growth and developm ent o f society.
Economic standstill
A nother institution, w hich was in trod uced to facilitate th e em ployer during an econom ic d ow nturn on the one hand, and on the other to protect the em ployees against dismissal, is the institution o f an econom ic standstill. It allows th e em ployer in a situation o f reduced dem and for goods to lim it labour costs w ithout having to actually reduce em ploym ent. The em ployer may at the same tim e in th e event o f a m arket u p tu rn im m ediately increase production. This econom ic standstill is defined in Article 2 p o in t 8 as a “failure to carry out w ork at a workplace in tem porary financial difficulties by an employee w ho is available to w ork bu t for econom ic reasons th at are n o t attributable to th e employee.” It should first be noted th at the econom ic standstill will only apply to those employers w ho find themselves in tem porary financial difficul ties. A n em ployer rem aining in tem porary financial difficulties is defined by Article 4 o f the Act on freedom o f econom ic activity, whereby the em ploy er in conjunction w ith the econom ic crisis experienced tem porary financial difficulties m arked by a decline in econom ic turnover, defined as sales o f goods or services, no t less than 25% o f the calculated q uantity or value w hen com pared to the same m onths in period from 1 July 2007 to 30 June 2008 (Article 3 paragraph 1 p oint 1 o f the A nti-C risis Labour A ct).2
2 A rticle 3 paragraph 1 provides fu rth er conditions fo r an em ployer to o btain the status o f interim financial difficulties. Provisions o f the A ct therefore apply to the employer:
1) w ho does n o t fall b eh in d in the settling o f tax debts, co n tributions for social security and health insurance an d the L abour F u n d . W ith the exception if an employer:
a) is indebted an d has entered into an agreem ent o n repaym ent o f d eb t an d makes regular installm ents o r has m ade use o f the deferm ent o f paym ent, o r
b ) if the missed social security contrib u tio n s and health insurance an d the L abour F u n d occurred in the period after 1 July 2 0 0 8 w hilst the recovery program , referred to in para graph 5 , provided for full repaym ent o f these obligations,
Polish em ploym ent law did no t deal w ith th e concept o f an econom ic standstill until now. This term however, did appear in th e Polish doctrine, de term ined by the standstill institutions governed by A rticle 81 o f the Labour C ode, nam ing the standstill due to m arket reasons. This provision assumes th at an employee during the period o f not w orking, if he/she was ready to w ork whilst the obstacles he/she endured were for reasons related to the em ployer, is entitled to rem uneration arising from his/her hourly or m onthly rate, and if such a com ponent was n o t specified, then 60% o f th e employee’s salary. The econom ic standstill is regulated by th e Act o f 7 August 2009 and can be regarded as a variation o f the standstill referred to in Article 81 o f the Labour Code. It should be noted th at this view is not shared by the Suprem e C o u rt ruling o f 16 O ctober 1992 stating “if we bypass the cause o f in terru p tio n o f em ploym ent due to w eather conditions (Article 81 § 4 o f the L.C.), as well as the special situation, w hen it is the w orker’s fault, a standstill in legal literature is said only to be w hen there is a m alfunction in the workplace due to technical or organizational reasons, w ith econom ic reasons never being m entioned, w hich is a testam ent as to how we should understand a standstill, no t only through labour law jurisprudence, but also - because o f the lack o f definition w ithin the C ode - through the Labour C ode provisions.”3
Between th e standstill in Article 81 o f the Labour C ode an d th e econom ic standstill o f the Anti-C risis Act, there are im portant differences. A n employee in a period o f standstill in accordance w ith Article 81 o f th e Labour C ode
2) for w hich there are no prerequisites for bankruptcy, referred to in A rticle 11—13 o f the A ct o f 28 February 2003 — B ankruptcy an d R eorganization Journal o f Laws o f 2003, no. 60, item . 535, as am ended)
3) w ho o n 1 July 2008 was n o t in a difficult econom ic situation in the understan d in g o f the C o m m u n icatio n o f the C om m ission — concerning the com m unal State aid guidelines for res cuing and restructuring com panies in difficulty (Official Journal E U C 244, 1.10.2004, p. 2) an d in the m eaning o f Article 1 paragraph 7 o f C om m ission R egulation E C N o. 8 0 0/2008 o f 6 A ugust 2008 declaring certain categories o f aid com patible w ith the co m m o n m arket as applied by Article 87 an d 88 o f the Treaty (G eneral Block Exem ption) (Official Journal E U L 214, 09.08.2008)
4) w ho developed a rescue plan, im proving the financial health o f the businesses, prepared for the year calculated from the first day o f the m o n th follow ing the date o f application referred to in Article 14 paragraph 1,
5) w ho d id n o t receive public assistance for either eq u ip m en t o r the creation o f a w ork post for an unem ployed person w ith m onies from the L abour F und, in accordance w ith the contract concluded for a refund u n d e r Article 46 paragraph 1, p o in t 1 o f the A ct o f 20 April 2004 concerning the p ro m o tio n o f em ploym ent an d labour m arket in stitutions o n o r after 1 February 2009 o r have had received this su p p o rt b u t from the date the decision was issued to grant such assistance at least 12 m onths had passed,
6) w ho has o btained a certificate confirm ing the fulfillm ent o f these conditions.
3 R esolution o f the Suprem e C o u rt o f 16 O cto b er 1992, ref. A ct I P Z P 58/92, O S N C P 1993, 6, pos. 95
retains his/her right to rem uneration- so this is an exception to th e principle in Polish labour law that rem uneration should only be paid for w ork ren dered. In the case o f an econom ic standstill an em ployer is not obliged to pay such rem uneration. In return, the employee w ho is under th e econom ic standstill situation, receives m onetary paym ents from the G uaranteed E m ployee Benefits F und intended to satisfy som e o f the payroll requirem ents for the tim e o f an econom ic standstill or is entitled to a grant funded by the Labour F u nd to the am ount o f th at is 100% equal to unem ploym ent benefits payable under Article 72 o f the Act on E m ploym ent P rom otion an d Labour M arket Institutions. These m onies are supplem ented by th e rem uneration paid by the em ployer so th at the total sum is equal to the m inim u m wage for w ork rendered . Such rem uneration shall n o t be paid for longer than 6 m onths. The legislature has foreseen the provision shall not be entitled to an employee who, during the econom ic standstill, takes sick leave under Article 92 o f the Labor C ode or the law on social insurance for accidents at w ork and occupational diseases4 or sickness allowance, payable pursuant to th e Act on financial benefits o f social security in the event o f sickness and m a ternity leave5 (Article 5 paragraph 3 o f the Anti-C risis Act). The ill- w ording o f Article 5 paragraph 3 should be po in ted out. It can no t be considered th at employees taking advantage o f social security benefits or guaranteed rem u neration rem ain in readiness to undertake work. Readiness to w ork applies to an employee w ho as actually at the disposal o f the employer. As ruled by th e Suprem e C o u rt “by rem aining at the disposal o f th e em ployer as part o f a readiness to w ork w ithin the m eaning o f Article 81 § 1 o f the Labour C ode is to be understood as a condition in w hich the employee m ay im m ediately w ork if requested by his/her employer.”6 M eanwhile, workers receiving bene fits under Article 5 paragraph 3 cannot be regarded as being ready to take the job im m ediately (rem aining in readiness to perform work), as the granting o f such benefits excludes such readiness, ex definitione. H ence, A rticle 5 par agraph 3 o f the A nti-C risis Act should considered redundant.
It should be n oted th at the employee is covered by th e standstill stipulated in Article 81 o f the Labour C ode no t autom atically - no additional actions on behalf o f the em ployer or employee are needed. There is som ew hat o f a difference in the case o f the econom ic standstill in the Anti-C risis legisla
4 A ct o f 30 O cto b er 2002 on social insurance for accidents at w ork an d occupational diseases (Journal o f Laws o f 2009, no. 167, item . 1322).
5 A ct o f 25 June 1999 o n cash benefits from social insurance for sickness an d m aternity bene fits (Journal o f Laws o f 2010, no. 77, item . 512).
6 R uling o f the Suprem e C o u rt on 2 S eptem ber 2003 Ref. A ct I PK 345 /0 2 , O S N P 2004, no. 18, pos. 308.
tion. Encom passing the workers w ith such a standstill requires their approval. This consent m ust for its effectiveness be expressed in w riting and given w ith prior notice. This brings to m in d the possibility o f refusing to grant such a consent by a worker. The assum ption o f the anti-crisis law is to ensure th at employers are able to cut their costs related to rem uneration during times o f reduced econom ic growth. The provision allows employers to plan their resource expenditure and its tem porary redistribution. Allowing employees to w ithdraw at any tim e their agreem ent to th e standstill cover w ould dis allow their em ployer to reasonably plan his/her expenses. The employer, in such a situation, w ould at any m om ent have to reckon w ith the need for re-paym ent o f the wages to his/her employees. It is therefore im po rtant to note th at once a w orker gives his/her consent it should not be w ithdraw n. It is also im possible to share the view th at it is possible to establish between th e employee and the em ployer th at the form er will have th e power to inde pendently decide on the w ithdraw al o f consent7. C onsent is a unilateral act and the legislature did no t po int out in th e Anti-C risis Act that it is possible to lodge consent w ith a condition o f term inating it. However, there is no im pedim ent for the employee to w ithdraw consent once the em ployer gives his/ her approval. This approach allows the em ployer to have influence over the num b er o f employees w ho are covered by the standstill, and thus contribute to achieving the goal o f the Act.
A nother difference between the standstill stipulated by the Labour Code, and the econom ic standstill as defined in the A nti-C risis Act is the period in w hich the employees may be covered. Article 81 o f the Labour C ode does not specify the length o f tim e a standstill. Therefore it should be assum ed that the legislature has not established standstill tim e lim its under w hich employees may be covered. There is som ewhat o f a difference as far as th e Anti-C risis Act is concerned. In accordance w ith Article 4 o f the Act o f 1 July 2007 tim e in w hich the employee is entitled to receive the benefits granted d uring the pe riod o f econom ic standstill can no t exceed 6 m onths. A lthough the employer may thereafter continue to lim it the scope o f em ploym ent, b u t is obliged to pay employees covered by the econom ic standstill full salary. Employees may be covered by the econom ic standstill for less th an 6 m onths. The basis for reducing 6 -m o n th period is the decision o f an em ployer w ho has a right to at any tim e waive the application o f econom ic standstill.
The difference in the status o f workers affected by the standstill between
7 J. Stelina an d M . Zieleniecki seem to represent this view, cf. J. Stelina, M . Zieleniecki, Re
gulacje antykryzysowe z zakresu prawa pracy [Anti-Crisis R egulations o f L abour Law], Praca
Article 81 o f the Labour C ode and the Anti-C risis Act should also be em pha sised. U nder this latter Act the employer may not, during the period w hen an employee is collecting benefits due to econom ic standstill and for 6 m onths thereafter, term inate a contract o f em ploym ent for reasons unrelated to the contract itself o f a workers affected by the econom ic standstill. Such a re striction is not im posed on employers where a standstill eventuated under th e m eaning o f Article 81 o f th e Labour Code. It should be n oted th at this adjustm ent, no do u b t intend ed to protect workers, was m et w ith sharp criti cism am ong entrepreneurs w ho suggest th at such a long period o f protection discourages m any employers w ho are not sure o f th e effectiveness o f public support, to m ake use o f th e solutions provided by th e legislation. The p ro posed am endm ent to the Act provides for reducing the anti-crisis period o f protection from term inating an em ploym ent contract (for reasons unrelated to the employee em ployed by an em ployer w ho is in tem porary financial dif ficulties) until the period o f collecting benefits as a form o f partial satisfaction o f wages d uring the econom ic standstill and 3 m onths im m ediately after the collection o f such benefits.8
A positive analysis should be given to the proposed changes. U n d o u b ted ly, it will encourage employers to make use o f the in stitution o f th e standstill and therefore contribute to im proving th e situation o f m any com panies, thus protecting the large num ber o f them from possible bankruptcy.
A final elem ent differentiating the tw o distinct types o f a standstill, is the possibility o f assigning other w ork to th e employees during the standstill. This action is perm itted by the Labour C ode, w hich provides the employee may be entrusted w ith other suitable w ork during the period o f the standstill, for w hich the employee will receive rem uneration th at is not lower th an the wages the employee w ould receive if there was no standstill period enforced
8 The draft bill am ending the law o n m itigating the effects o f econom ic crisis o n workers and employers, Parliam entary (Sejm) N o 3240. In su p p o rt o f this project it was established th at „the law as it stands, forbids to speak o f the em ploym ent contract for reasons unrelated to the employee d u rin g the collection o f employee benefits for partial satisfaction o f employee wages for the tim e o f an econom ic standstill an d a period o f 6 m o n th s im m ediately after the collection o f these benefits. Such a long period o f p rotection for workers, w here claims were filed u n d e r the Act, is discouraging employers to benefit from the solutions o f the Act. The change is in tended to m itigate the obligations im posed o n employers, w hich consist o f shortening the p eriod o f pro tectio n o f em ploym ent benefits. As a consequence, it will be a significant liberalization o f the law th at encourages employers to take advantage o f statu to ry solutions. The proposed am en d m en t to Article 6 involves shortening the period o f p rotection for w orkers and, consequently, p rohibiting the term in atio n o f em ploym ent contracts for reasons unrelated to the employee, will apply to the period w hen an employee is in receipt o f partial satisfaction o f employee wages fo r the tim e o f the econom ic standstill an d fo r the three m onths attributable to the period im m ediately after the collection o f these benefits.”
(Article 81 § 3 o f the Labour Code). Such a possibility is n o t foreseen by the Anti-C risis Act. According to A rticle 2 p o int 8, the econom ic standstill is a period o f econom ic inactivity, w hereby an employee is included. The literal interpretation o f that provision indicates that the p ro hib ition applies to both th e w ork perform ed under a contract o f em ploym ent as well as other relevant work. The question arises w hether an employee n o t carrying out the w ork during an econom ic standstill m ust be rem ain in readiness to undertake w ork or not? It is arguable th at an employee should rem ain ready to undertake w ork during the w hole econom ic standstill period. This follows from the fact th at the em ployer may at any tim e w ithdraw from the econom ic standstill, and in this situation the worker should im m ediately resum e his/her work. Therefore one m ay agree w ith J. Stelina and M . Zieleniecki’s view expressed by the Suprem e C ourt, stating an employee w ho un dertoo k replacem ent work, remains in readiness to resume work, if the obstacle th at caused the standstill is perm anent in its nature, applying also to th e econom ic standstill.9 It should be added, however, th at the w ork undertaken during the econom ic standstill in such circum stances should not prevent an employee to resume his/her initial em ploym ent, if an employer withdraw s from the the econom ic standstill, either im m ediately or w ithin a short, reasonable period o f tim e .10
In sum m ary the introduction o f th e econom ic standstill conception should be viewed as a positive turn. It allows employers w ho find th em selves in interim financial difficulty to m aintain the current em ploym ent sta tus while reducing costs spent on the paym ent o f wages. In trodu ction such a new concept to the Polish labour law, econom ic standstill should be con sidered as a great convenience for the operation o f employers and an elem ent o f the liberalisation o f labour relations. Negative aspects however exist in the heightened level o f protection afforded to employees after the econom ic standstill ceases, as it is a tren d towards increased labour m arket regulations and restricting the freedom o f employers. Perhaps it w ould be beneficial to m aintain a slightly m odified form o f th e econom ic standstill even after the expiry o f the A nti-C risis Act period.
The liberalization of employment as based
on fixed-term contracts
The Anti-C risis Act introduced changes in the em ploym ent o f workers u n der fixed-term em ploym ent contracts. In the Polish system o f labour law
9 J. Stelina, M . Zieleniecki, op. cit., p. 20.
10 R uling o f the Suprem e C o u rt o n 2 Septem ber 2003, Ref. A ct I PK 345 /0 2 , O S N P 2004, no. 18, pos. 308.
a fixed-term contract is one o f the types o f em ploym ent contracts, am ong w hich include the non-fixed em ploym ent contracts, trial basis contracts and contracts for a specified job. C onsidered by the Labour C ode as a solution to be applied where short-term em ploym ent is required, the agreem ent is in fact often regarded by some employers as a basic form o f em ploym ent. In accordance w ith the in trod uction o f th e Act o f 2 June 199611 into the Polish Labour C ode, Article 25 concerning fixed-term em ploym ent is legally equivalent to a contract o f em ploym ent for an indefinite period, if th e two parties previously entered into an em ploym ent contract for a specified period and later into successive periods unless the interval between the term ination o f th e previous and the following contract did n o t exceed 1 m onth. Similar effects were foreseen in cases o f renewing fixed-term contracts - an extension o f such a contract is in fact regarded as the conclusion o f the next contract. In this way, the legislature sought to elim inate the rather com m on practice o f hiring workers purely the basis o f fixed-term contracts. E ntering into such as agreem ent for the th ird tim e results in th e conclusion o f an indefinite w ork agreem ent, unless the interval between any o f th e three contracts is greater th an 1 m onth . The provision excludes fixed-term contracts entered into in order to replace an employee w ho has an excused absence and or to render occasional, seasonal or cyclical work.
In order to introduce m ore flexible measures during the econom ic crisis, th e Act o f 1 July 2009 suspended the application o f Article 2 5 1 o f the Labour Code. Fixed-term contracts entered into after the entry into force o f the Act, from the 22 August 2009, as well as to contracts concluded before th at date, w hich continue to function during the entry into force o f th e Anti-Crisis Act, Article 2 5 1 o f the Labour C ode does no t apply. Article 13 o f the Act o f 1 July 2009 however does (Article 35 paragraph 1 paragraph 2). This provision provides th at the period o f em ploym ent under a contract o f em ploym ent for a specified period, and the total period o f em ploym ent on th e basis o f successive fixed-term em ploym ent between the same parties o f the em ploy m ent relationship may not exceed 24 m onths. A further contract entered into w ithin 3 m onths after the term ination or expiration o f the previous fixed-term contract, is considered to be a fixed-term contract. The scope o f th e application o f Article 13 paragraph 1 excludes fixed-term contracts, w hen their expiration date falls after 31 D ecem ber 2011.
Article 13 o f the A nti-C risis Act, in contrast to the previously discussed econom ic standstill concepts, applies to all businesses w ithin the m eaning o f th e Act on freedom o f econom ic activity, and no t only to those rem aining
11 The Act o f 2 February 1996 am ending the Law o f the L abour C ode an d certain o th er laws (Journal o f Laws, no. 24, item 110, as am ended).
in tem porary financial difficulties. This solution should be assessed very pos itively. It will facilitate employers to regulate the level o f em ploym ent based on fixed-term em ploym ent contracts, w hich in tim es o f econom ic crisis are particularly attractive to be entered into as they do not restrict th e employer to th e extent o f em ploym ent contract o f indefinite duration.
It should be noted th at the m axim um tim e lim it placed on a contract or a fixed-term contract should be calculated on th e basis o f Article 300 Labour C ode, based on the provisions o f th e Civil C o d e.12 The length o f th e statu to ry period o f 24 m onths can therefore be different according to w hether the employee has one agreem ent covering the entire period indicated, or several shorter contracts. In the first case under Article 112 o f th e L.C., the co n tin u ous 24 m o n th period expires at the end o f the year in w hich th e nam e or date corresponds to the initial day o f the period. If, however, d uring th e anti-crisis period several fixed-term contracts have their length calculated on the basis o f A rticle 114 o f the Labour C ode, w hich provides th at if the date is m arked in m onths or years, and the continuity o f th e period is n o t required, the m o n th counts as th irty days and the year as 365 days. Thus, the m axim um period o f em ploym ent for the duration o f the anti-crisis legislation m ay in fact be either 730 days (2x365) or 720 days (24x30), or may be derived from identified solutions.
The doctrine expressed th e view according to w hich the calculation o f th e 24 -m o n th duration o f th e contract (s) for a fixed-term, in transition to another em ployer under Article 2 3 1 o f the L.C., should not be considered as fixed-term contracts (or part o f the duration o f these agreements) concluded by the previous em ployer to the date o f transition to the workplace o f another em ployer.13 That view cannot be accepted. Article 2 3 1 o f th e Labour C ode assumes constancy o f the legal situation o f the employee after the transition. C alculating again the 2 4 -m o n th permissible lim it o f th e duration o f the con tract term is inconsistent. It should be noted th at the employee taken over by the new employer continues the em ploym ent relationship u nd er th e same contract and there is no legislation w hich w ould allow the period specified in A rticle 13 o f the A nti-C risis Act to calculate the term from the beginning. Thus, it should be considered that passing from one em ployer to another does no t affect the m ethod o f calculating the 24 -m o n th period, th e maxi m um one can enter into as a fixed-term contract un der the A nti-C risis A ct.14
12 K.W. Baran, Umowa na czas określony w ustawie o łagodzeniu skutków kryzysu ekonomicznego
dla pracowników i przedsiębiorców [The Fixed-Term E m ploym ent C o n tract as M itigation
D u rin g an E conom ic Crisis for b o th W orkers an d E ntrepreneurs], M o n ito r Prawa Pracy 2009, no. 9, p. 456.
13 Ibidem.
The permissible period run o f the fixed-term contracts is calculated from th e beginning, as long as th e successive fixed-term contracts are at least 3 m onths apart. O n e can no t agree w ith the sentim ent th at the 2 4-m o nth period may also be interru p ted by the conclusion o f “agreements in th e se quence o f another type o f em ploym ent contract (e.g. for a contract o f car rying out specific work) between th e same parties”15 . Article 13 paragraph 2 th e Anti-C risis Act defines the concept o f another fixed-term contract as an agreem ent concluded before the expiry o f 3 m onths from term ination or expiration o f the previous fixed-term contract. This definition makes the contract be treated as a successive one solely based on th e absence o f a spec ified time. The legislation does no t m ention th at th e sequence o f successive contracts should only consist o f non-fixed term contracts. An interrup tion to th e 2 4 -m o n th period does not occur, even if the parties enter into another agreem ent in the interim period o f the fixed-term contracts, if th e interim period is n o t at least 3 m onths.
Finally, the question m ust be asked w hen one should expect th e starting p o in t o f a 2 4 -m o n th m axim um period in w hich the parties, in accordance w ith the Act o f July 1, 2009, may be related to a contract o f indefinite d u ra tion. There are two possible solutions. According to a first th e period begins on the day the fixed-term contract is entered into on the date o f entry into force o f the A nti-Crisis A ct.16 However, in com pliance w ith th e second view, this period m ust be counted from the Anti-C risis Act date only.17 The literal interpretation o f Article 13 supports the first view. O n e cannot agree w ith this argum ent, as the retrospect principle o f th e law supports th e former view. It should be n oted however th at the principle o f lex retro non agit is not m andatory, and legislation often breaks w ith it. However, one can no t hide the fact th at the solution adopted by the legislature m ay have the effect th at som e o f th e contracts at the tim e o f entry into force o f the Anti-C risis Act will violate the 2 4 -m o n th period o f em ploym ent und er fixed-term contracts. This shows a lack o f integrity o f the legislature th at was unable to foresee how to resolve such situations.
At this p o in t the discussion concerning the exceeding o f th e 2 4 -m on th period o f fixed-term em ploym ent contracts m ust be raised. A lthough the law prohibits fixed-term contracts, w hich w ould exceed the total period o f 24 m onths, however the law, does n o t lay down penalties for such breaches.
15 K. W. Baran, op. cit., p. 456.
16 Ł. Guza, Pakiet antykryzysowy: Zostało 4 d n i na ograniczenie pra w pracowników [Anti-Crisis Package: Four Days Left to L im it the Rights o f W orkers], Gazeta Prawna, 18 A ugust 2009, p. 6.
The doctrine proposed various effects for breaching the lim its in Article 13 o f the A nti-C risis Act. It was poin ted out th at the conclusion o f a fixed-term contract, whose length exceeds the 2 4 -m o n th period m ay be regarded as an act contrary to law or intended to circum vent it (Article 58 Civil C ode in conjunction w ith Article 300 o f the Labour C ode), and should be settled th ro ugh the application o f Article 2 5 1 as to w hether the effect o f transform ing a fixed-term contracts into a non-fixed term contract. First, it should be no ted that Article 13 paragraph 1 speaks not o f “the period o f the contract” bu t o f the “period o f em ploym ent.” Thus, the m ere conclusion o f the con- tract(s) for a fixed-term, w hich will exceed 24 m on th s are not yet analyzed as a breach o f th e regulations. R em aining w ith the employee in an em ploym ent relationship for m ore th an the perm itted period should be regarded as con trary to Article 13. It appears there is no basis for th e analysis o f the Act to establish that a breach o f the 2 4 -m o n th period, although contrary to the p ro visions o f the Act, is associated w ith a specific sanction for th e employer. In particular, it is difficult to find grounds for considering th at beyond that tim e lim it a fixed-term contract is converted into a contract o f indefinite duration. It is therefore considered that the present legal Act on m itigating the effects o f econom ic crisis on workers and businesses does no t provide penalties for the em ploym ent o f workers und er fixed-term contracts for a period longer than 24 m onths in term s o f the Article 13 o f the Act. However, actions undertaken th at are contrary to the regulation will certainly be a violation o f labour laws and thus w ould constitute the basis for an intervention by the state labour inspection.18
D espite m any shortcom ings, the new regulation concerning fixed-term contract em ploym ent can nonetheless be viewed in positive light. The pos sibility o f a m uch larger nu m ber o f fixed-term contracts th an was previous ly acceptable is a great convenience for employers an d should be judged as a good step towards the liberalisation o f labour relations. This form o f an em ploym ent relationship allows to adjust production levels to actual needs th at are often susceptible to change at short period. At the same tim e the in tro duction o f a 24 -m o n th period, specifying the m axim um length o f fixed-term contracts between the same parties to the em ploym ent relationship should lim it the replacem ent o f perm anent contracts in future contracts.
18 M . Nałecz, Ustawa o łagodzeniu skutków kryzysu ekonomicznego dla pracowników i przedsię
biorców [C om m entary to the Law o n M itigating the Effects o f E conom ic Crisis o n W orkers
Conclusion
The Act o f 01.07.2009 may, be placed in the elite group o f acts passed by the state, w hich led to a perm anent change in the perception th at labour law is a branch o f law prim arily protecting workers’ rights. Enabling social partners to conclude agreem ents on the transitional legislative reduction o f w orking tim e standards, and even the an nouncem ent o f an econom ic standstill are milestones on the road to liberalisation o f labour law. D espite the w orking h ou r and rem uneration changes in legislation, there rem ain regulations, w hich restore to the parties in individual em ploym ent relationships a lim ited in tim e freedom to enter into im perm anent em ploym ent contracts.
The threat by the econom ic crisis, w hich fortunately did n o t develop in Poland to the same extent as it did in other m ore industrialized countries, has forced the legislature to change its previously form ed traditional view o f the role o f the labour law o f 35 years ago, and the ways such laws have been applied. The m echanically applied, com plete unilateral powers m ade depend ent on the legal relationship belonging to th e branch o f labour law, are now standing in the way o f successfully executing today’s m uch needed flexible em ploym ent m odel. The challenge now for the authorities o f industrialized countries is to enable workers to adapt to the changing dem ands o f m arket economy. W h ich in tu rn is assumed to allow employers m ore freedom than is currently governed by existing labour laws concerning the em ploym ent and the term ination o f workers. The state and its authorities are responsible for carrying out a rational em ploym ent policy, an d are having difficulties in introducing in a relatively quick tim e frame workers to the labour m arket, w ith w hom the employers have term inated the contracts o f em ploym ent, The episodic anti-crisis legislation thus, contributes to the protective function o f labour law. Critical to the com m on good view p oin t is to raise awareness by th e social partners o f the solidarity o f all people, workers and employers, w ho are m aking a living. From this perspective, extending th e periods in w hich fixed term contracts m ay be entered into w itho ut legal im pedim ents, allowing social partners to decide on the in tro du ctio n o f econom ic stand still if required, during in w hich employers and state assistance provide aid to those employees w ho are released from their job responsibilities assuring th em the m inim um livelihood as well as the guarantee o f m aintaining their jobs, should be accepted and applauded. Reinforcing the Act o f 01.07.2009, w hich was lim ited in tim e in term s o f its scope o f application, an d in trod uc ing perm anent solutions tested by the legal provisions o f the Act d uring the post-crisis period into the Labour C ode, w ould result in a th ird attem pt to structurally reform the current labour relations in dem ocratic Poland.
Abstract
Labour law in the face of economic crisis
In order to cope w ith the econom ic crisis, the Polish Anti-Crisis Labour Act o f 2009, tem porarily relaxed the rigid labour statutes, introduced over thirty years ago by the Labour Code. The Anti-Crisis Labour A ct introduced a new concept o f the econom ic standstill. It allowed employers to tem porarily suspend em ploym ent contracts w ithout term inating them . The new Act also enabled employers to enter into tem porary em ploym ent contracts regardless o f the form er law established by Art. 2 5 o f the Labour Code. This law required employers, as a m atter o f principle, to m ostly enter into n o n fixed em ploym ent contracts w ith their employees. Despite the last econom ic crisis had little im pact on the Polish economy, the Polish A nti-Crisis Labour Act gave for the first tim e a real chance for the Labour C ode to have its over-protective regulations lib eralized. By facing a seeming econom ic crisis, the Polish labour law has becom e m ore flexible.
K ey words: econom ic standstill, fixed term contract, liberalization o f overprotective
em ploym ent relationships, Poland
Streszczenie
Prawo pracy w obliczy kryzysu ekonomicznego
Aby poradzić sobie z ostatnim kryzysem gospodarczym, polska ustawa z dnia 1 lipca 2009 r. o łagodzeniu skutków kryzysu ekonom icznego dla pracowników i przedsię biorców tymczasowo złagodziła sztywne przepisy dotyczące prawa pracy, wprowadzo ne ponad trzydzieści lat tem u przez kodeks pracy. Ustawa antykryzysowa wprowadzi ła now ą koncepcję przestoju ekonom icznego i um ożliwiła pracodawcom tymczasowe zawieszenie um ów o pracę bez ich wypowiedzenia. N ow a ustawa umożliwiła również pracodawcom zawieranie um ów n a czas określony bez względu n a wcześniejsze przepisy ustanow ione w art. 25 kodeksu pracy, który wymagał od pracodawców zasadniczo za warcia z pracownikam i um ów n a czas nieokreślony. M im o że kryzys ekonom iczny miał niewielki wpływ n a polską gospodarkę, polska ustawa o przeciwdziałaniu kryzysowi stanow iła po raz pierwszy realną szansę n a liberalizację przepisów w zakresie nadm ier nej ochrony pracowników. Stojąc w obliczu pozornego kryzysu gospodarczego, polskie prawo pracy stało się bardziej elastyczne.
Słow a kluczowe: przestój gospodarczy, um owa na czas określony, liberalizacja nadopie
