Labour and Social Security Law
Baran Książek Bigaj
Review of the month (February 2020)
Amendment to the Act on delegating employees as part of service delivery
The draft of the Act amending the Act on delegating employees as part of service delivery is ready.
The aim of the draft is to implement the Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services.
The main aims of this regulation are:
- Expanding the list of minimum employment conditions guaranteed to posted workers that are binding in the host country;
- Expanding the scope of employment conditions that are binding in the host country and guaranteed to posted workers in the event of so-called “long-term posting”.
The regulation is to enter into force on July 30, 2020.
More information available at the RCL website – draft of the Act:
Grounds for the draft:
The National Labour Inspection cannot prosecute employers who persuade employees to decline Employee Capital Plans (PPK)
Article 108 of the Act on Employee Capital Plans foresees a fine for employers or persons acting on behalf or on the initiative of the employer if such persons persuade employees to decline their participation in Employee Capital Plans (PPK).
At the same time, the legislatory authority did not provide the National Labour Inspection with any legal instruments to persecute this offence. The problem is in the provisions of Article 127 of the Act on Employee Capital Plans that amends the Act on the National Labour Inspection by granting the authority the right to prosecute the infringements listed in Art. 106 and 107 of the Act on Employee Capital Plans, including failure to enter into the agreement on maintaining ECP in due time, failure to make payments to the ECP in due time, or failure to maintain proper documentation connected with calculating payments to ECP, at the same time not mentioning the provisions of Art. 108 of the Act on ECPs that foresees a fine for unlawfully persuading employees to decline participation in the programme.
As a consequence of the above, the National Labour Inspection, as a public institution that acts only within the limits of the law does not have the competences to prosecute the said violation of the Act on ECP, which has been publicly confirmed by a representative of the National Labour Inspection in the media.
New position of the Personal Data Protection Office on Company Social Benefit Funds (CSBF)
The PDPO has confirmed its position on the principles of processing personal data for the purposes of using services and benefits financed by the Social Security Office (ZUS).
Pursuant to the Act on CSBF, services, benefits and subsidies are dependent on the life, family and financial situation of the person entitled to use the Fund.
This means that the employer must learn about the financial situation of both the employee and members of their family who live in the same household, and thus, process their personal data in this respect.
In the opinion of the PDPO, personal data of employees and their family members should be processed in a manner compliant with the principles of the GDPR, including the principle of data minimisation, limited access, and the principle of purpose.
The employer may only demand access to certain documents for inspection, without the right to collect them. The tax return form of the spouse is an example of such document.
Both in public and non-public entities, employers who maintain CSBFs are obliged to perform annual reviews of documentation in order to verify whether they process only the data that are necessary for the purposes of employees’ social benefits.
“Low ZUS plus”
Starting from the 1st of February 2020, entities entitled to use the low social security contribution option are entrepreneurs, whose revenue for the preceding year did not exceed PLN 120 thousand. Before the amendment, entrepreneurs whose revenues for the preceding year did not exceed PLN 67.5 thousand (30 times the minimum wage) could benefit from the exemption.
At the same time, the manner of calculating contributions changed starting from February 2020. Currently, the amount of contributions will depend on income, not on revenue like it was before. Pursuant to the new regulations, the basis for calculating the social security contributions will be half of the average monthly income obtained from business activity in the preceding year.
Additionally, the Social Security Office has launched a website with explanations of the main issues for everyone interested:
Additionally, a special calculator that assists entrepreneurs in calculating the new basis for contributions is available on the website: eSkladka.pl.
According to the estimates of ZUS, even 320 thousand entrepreneurs may benefit from the programme.
The Social Security Office may demand the employer to return unduly received benefit of an employee
The Supreme Court in the resolution of December 11 2019, taken by a panel of 7 judges, case file: III UZP 7/19 held that the Social security Office has the right to file a claim for the return of benefit unduly received by an employee directly to the employer.
The Supreme Court stated that the pension authority may select the social contribution payer as the entity obliged to return a benefit unduly received by the beneficiary under Art. 84, item 6 of the Act of October 13 1998 on the Social Security System.
It is worth noting that the aforementioned resolution does not change the position of the insured. Ultimately, it is the person who is obliged to return the benefit. However, the resolution of the SC provides an opportunity for Social Security Office authorities to collect benefits firstly from payers (employers).
Only after the unduly received benefit has been returned to the Social Security Office, the employer may try to recover the amount from the employee.
Terminations changing employment conditions and the collective redundancy procedure
The Supreme Court reconsidered the issue of terminations changing the conditions of employment delivered to larger numbers of employees (judgment of the SC of the 10.10.2019, I PK 196/18).
In such cases, it is necessary to analyse whether at least 5 redundancies, as defined in Art. 1, item 1, paragraph 1 (a) of the Directive of the Council 98/59/EC, i.e. definitive dismissals or terminations of the employment relationship due to the rejection of a significant modification of important elements of the employment relationship by the employee took place at the employer.
It is only then when the obligation to include also these employees to whom terminations changing the conditions of employment classified as other forms of expiration of the employment relationship have been delivered, as defined in Art. 1 item 1 paragraph 2 of the quoted Directive (i.e. terminations changing the employment conditions of an insignificant nature) in the total number of dismissed employees becomes valid.
If, although the employer introduced a unilateral change of the employment conditions towards a significant number or even all employed workers, fewer than 5 “actual” dismissals (definitive terminations or refusals to accept terminations changing significant employment conditions) took place, then no dismissal under collective redundancies took place.
Judgment with grounds: http://www.sn.pl/sites/orzecznictwo/Orzeczenia3/I%20PK%20196-18-1.pdf
During the 10th CORPORATE LEGAL COUNSEL Forum, attorney Daniel Książek presented certain issues related to the activity of so-called anti-harassment committees. These committees have become a permanent element of internal proceedings in case of reporting mobbing harassment in a workplace.
Lawyers of Baran Książek Bigaj (BKB) participated in the work of several dozen anti-harassment committees.
Below are selected points of the presentation:
- Model committee composition
- The scope of disclosure of the committee report
- Phases of anti-harassment proceedings
If you would like to learn more about our presentation or organise such presentation at your company, please contact us at: email@example.com