Praca i Zabezpieczenie Społeczne (Work and Social Security) 2020/09
Category: Praca i Zabezpieczenie Społeczne
Published: Wednesday, 21 October 2020 18:21
Written by Editor
- The right to fair remuneration as a principle of labor law 3-9)
The aim of the article is to interpret the content of Art. 13 of the Labor Code containing the principle of the employee's right to a fair remuneration for work. According to the author, the content of this provision consists of: the obligation of the state to determine the minimum remuneration for work, the employers' observance of the equivalence of mutual benefits - work and remuneration, and the prohibition of discrimination in terms of wages. These aspects are a manifestation of distributive and exchange justice in labor relations.
- European "Unemployment Insurance" - A Permanent Provision? (10-14)
The disruption of the current rhythm of the functioning of economies and societies around the world, including in European Union Member States, caused by the COVID-19 pandemic from February / March 2020, also brings about changes in social policy. Currently, most countries are introducing solutions aimed primarily at reducing the most pressing problem, i.e. the increase in unemployment. The European Union also reacted quickly to the new situation, as on May 19, 2020, the Council of the EU adopted Regulation 2020/672 on establishing a European instrument of temporary support to reduce the risks related to emergency unemployment (SURE), which occurred in related to the COVID-19 pandemic. The aim of the article is to discuss the regulation against the background of the more general approach of the European Union to the issue of unemployment insurance. According to the author, the question remains whether the implementation of the discussed legal act will actually bring the expected results, and whether the interim solution it contains will prove to be more permanent.
- Temporary reinstatement of an employee to work (Article 4772 § 2 of the Code of Civil Procedure) (15-23)
The aim of the article is to discuss the doubts arising from the possibility, introduced from November 7, 2019, of the possibility of the first instance court imposing in the judgment restoring the employee to work - at his request - the obligation to continue employing the employee until the final conclusion of the proceedings (Article 477 § 2 of the Code of Civil Procedure). The authors call the imposition of this obligation a temporary reintroduction to work. The effect of temporary reinstatement is the re-establishment of the employment relationship with the same content as before its termination by the employer. The resulting employment relationship shall terminate upon the final conclusion of the proceedings relating to the employee's claim for reinstatement or as a result of legal events provided for in the Labor Code. The authors approve of this regulation, analyze the resulting legal problems and postulate that the courts should apply temporary reinstatement of an employee to work as often as possible.
- Interpretation or law-making action of a court making legal qualification of a contract relating to the provision of services - analysis of judgments of civil and social security courts (24-33)
The aim of the article is to present the discrepancy between the methodology of assessing contracts for specific work and contracts for the provision of services by civil courts and social insurance courts. In the first place, civil courts determine the content of the declarations of will of the parties to the contract (consensus), then interpret the submitted declarations of will in order to establish the legal qualification of the contract at the last stage. The will of the parties, reproduced in the order indicated, is decisive for determining the legal classification of the contract, therefore the actions of the civil court are interpretative. The actions of the social insurance court determining the obligation to be subject to social insurance in connection with the performance of a specified contract are rather of a creative nature. Courts assess the existing legal relationship between the parties by examining the contract execution phase. The qualification of the social security legal relationships is done via faci. Determining the normative sense of these behaviors for the purposes of social insurance, the courts make the legal qualification binding the parties to a civil law contract. For the social security court, apart from the declarations of will of the parties to the contract, there are other types of legally significant behavior that affect or even decide on the classification of a given legal relationship.
- On extended protection in sickness insurance (34-43)
The institution of extended protection in sickness insurance, understood as protection resulting from the previous insurance title and concerning events occurring after the end of sickness insurance, shows the specificity of protection under social insurance. So far, however, it has not been the subject of an in-depth theoretical and dogmatic analysis. The author of the article, having as a basis the legal regulation defining the conditions for acquiring the right to sickness benefit and maternity benefit, points to the diversified structure and nature of this protection. It also tries to explain and evaluate the differences that occur in this respect.
- Some remarks on constructing a system to cover the risk of long-term care (44-51)
The aim of the article is to present selected issues concerning the construction of the benefit system securing the risk of long-term care. The author discusses the following issues: defining the risk of long-term care in the context of the demographic situation, the scope and nature of services, organization of the system and its financing.
- Identification of an enterprise with the status of "employer" (52-54)
The Court of Justice of the EU in its judgment of 16 July 2020 in case C-610/18, AFMB Ltd et al. Against the Raad van bestuur van de Sociale verzekeringsbank, he interpreted the concept of 'employer' in the light of the European Union legislation on the application and coordination of social security systems. According to the judgment, the employer, in this case the driver of a lorry operating international transport, within the meaning of the provisions in question is the undertaking which effectively manages the driver, in fact bears the relevant salary costs and is actually entitled to dismiss that driver, and not the undertaking, with whom the driver concluded the employment contract and who is formally designated as the employer in this contract.
- Termination of non-competition agreement after termination of employment (55-57)
The author presents the jurisprudence of the Supreme Court relating to the issue of terminating the non-competition agreement before the date for which it was concluded. He pays special attention to the judgment of February 20, 2020, in which the Supreme Court allowed the conclusion of this agreement on condition precedent.
- Employment contract (58)
- Review of Journal of Laws of 2020 from item 1345 to pos. 1525 (59-60)
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