Praca i Zabezpieczenie Społeczne (Work and Social Security) 2021/11
Category: Praca i Zabezpieczenie Społeczne
Published: Tuesday, 14 December 2021 09:12
Written by Editor
- Transparency of remuneration for work and the EU principle of "transparency of remuneration" (comments de lege lata and de lege ferenda ) (3-12)
The author discusses the issue of transparency of remuneration for work through the prism of the draft directive of the European Parliament and of the Council of March 4, 2021 on strengthening the application of the principle of equal pay for women and men for equal work or work of equal value through pay transparency and enforcement mechanisms, which includes new EU-wide rules on pay transparency. The draft provides for the imposition on the Member States of, inter alia, the obligation to develop adopting unified regulations on the rights of employees to ask the employer for information on the individual level of remuneration and the average level of remuneration, broken down by gender, in relation to categories of employees performing the same work or work of the same value. The obligation to publish the offered remuneration contained in the draft already at the stage of the job advertisement may improve the transparency of remuneration. According to the draft, the provision of salary spreads in job offers should be a statutory obligation and favor transparency and transparency, as well as force equal pay regardless of gender and other discrimination criteria. Polish labor law is not adjusted to the standards provided for in the draft directive. De lege lata, it is difficult to talk about openness, transparency and transparency of remuneration in national regulations. According to the author, the implementation of the new directive on the national ground will have a positive impact on the introduction of new standards in the field of wage policy, in particular in the field of counteracting wage discrimination and the functioning of decent wages in national law.
- Protection of a pregnant temporary worker in Polish law (13-18)
The subject of the article is the status of a temporary worker in connection with maternity. Temporary work is classified as an atypical form of employment characterized by a lower standard of employee protection. In principle, a temporary worker is subject to the same protection standards as for workers employed without an employment agency on the basis of fixed-term contracts. The main point of the non-termination of work during pregnancy and motherhood, and the right to maternity leave. However, it is worth noting that temporary work does not fully guarantee maternity protection. Certain differences can be found in the scope of extending the term employment contract until the date of delivery (Article 177 § 3 of the Labor Code). This rule applies to employees who have been employed on the basis of fixed-term employment contracts , which would have been terminated after the end of the third month of pregnancy. In Poland, however, this rule did not apply to temporary workers until June 1, 2017, when the legislator also extended protection to temporary workers who had a total of at least 2-month assignment to perform temporary work by a given temporary employment agency on the basis of a contract on work. The Polish legislator decided to introduce the protection of a temporary worker during pregnancy, because the existing solutions were contrary to the provisions of the EU directive on temporary work. However, the current solution is criticized because - as it is indicated - it is contrary to the purpose of temporary work, which is supposed to be flexible and short-term employment.
- Sickness absenteeism - legal and economic aspects (18-28)
While illness and the related inability to work are random events, independent of the human will, sickness absenteeism is the result of conscious and deliberate decisions. Employees differ in terms of its use. The subject of this article is sickness absenteeism, i.e. the phenomenon of abuse of sickness absenteeism. Based on the literature on the subject and the results of the research conducted so far, the author presents the essence of this problem, its types and conditions. Sickness absence, like any other social privilege, is a field of potential abuse. Excessive use of sick leave can take two forms: moral hazard and social crime. The intensification of the occurrence of these problems is fostered by various circumstances related to the personal characteristics of the employee, the conditions of the working environment, as well as the broad social and institutional context. The author points out that as part of the research carried out, it was possible to isolate a dozen or so such circumstances, thanks to which it is possible to more effectively identify potential abuses.
- Legal aspects of the internship pension. Part 1 - entitlement (29-37)
The subject of the considerations presented in the article are the so far formulated proposals of retirement pensions, which were assessed in terms of consistency with the reformed pension system and the values on which it was based. The author uses a dogmatic and economic method to analyze individual proposals of submitted projects and alternative solutions to them. The first part of the article is devoted to the issue of acquiring a new entitlement. The author determines the most adequate structure of the retirement pension and shows that the construction of the internship condition on the basis of the existing catalogs of contributory and non- contributory periods is highly problematic. The second part, which will be published in the next issue of PiZS, will mainly present the economic and legal aspects of seniority pensions, as well as an alternative to the structure of the retirement pension. This article is the first study to broadly describe the legal issues of early retirement in the context of the Polish defined contribution system. The presented argument aims to verify and organize the arguments relating to the retirement pensions, which the author intends to contribute to the improvement of public discourse on this subject and the improvement of future projects.
- Entrusting work in trade on Sundays or public holidays, contrary to the prohibition in the case law of the Supreme Court (38-45)
The article deals with the issue of criminal law response to the violation of the prohibition of entrusting an employee or employee with performing work in trade or performing activities related to trade in breach of the prohibition . Apart from the analysis of the statutory features of the penal provisions in force in this respect, reference was made to the most recent jurisprudence of the Supreme Court. The author shares and develops the thesis that the predominant activity referred to in Art. 6 sec. 1 point 6 of the Act on the restriction of trade on Sundays and public holidays and some other days, it is also an activity that has as its subject only one of the assortments indicated in this provision. It is also in favor of the formal nature of the entry in the relevant register designating such activities.
- Calculation of the equivalent for annual leave for temporary employees who are absent from work for a long time - Legal gap in the provisions of the Act on Employment of Temporary Employees (46-52)
The author discusses the method of calculating the equivalent for unused vacation leave for temporary employees (in selected aspects), in particular in the case of when the termination of the employment relationship was preceded by a long period of inability to perform work due to illness, and then by maternity leave, indicating an existing legal loophole. He presents possible ways of calculating the equivalent for unused leave in such a situation and formulates de lege ferenda remarks.
- Discrimination on the basis of nationality as exemplified by the judgment of the CJEU
Migration phenomena are currently one of the greatest socio-political challenges. They affect a number of interconnected spheres of functioning of an individual in specific legal realities. The aim of the study is to discuss the judgment of the Court of Justice of the European Union issued on 15 July 2021 in case C-709/20, which concerns the possibility of differentiating entitlements to benefit from social assistance on the basis of the status legalizing the stay of an individual. This judgment significantly changes the current jurisprudence of the Tribunal with regard to the normative foundations constituting the social protection of a migrant citizen of the Union.
- The concept of an employee for social insurance purposes (58-60)
The author presents the jurisprudence of the Supreme Court regarding the interpretation of Art. 8 sec. 2a of the Act of 13 October 1998 on the social insurance system to the extent that this provision applies to insured persons who, under a civil law contract, perform work for an employer with whom they have an employment relationship. He also points to the latest judicature of the Supreme Court, which upheld the position on the need for an extensive interpretation of the phrase "work for the benefit of the employer".
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