Legal alert Labour and Social Security Law Baran Książek Bigaj Monthly review (January 2020)

Legal alert Labour and Social Security Law Baran Książek Bigaj Monthly review (January 2020)

More companies are introducing Employee Capital Plans

Starting from January 1, 2020, employers who employ 50 to 250 workers are obliged to introduce Employee Capital Plans. Medium companies have to sign agreements on the management of ECP funds with one of the 20 authorised financial institutions at the latest by the 24^th of April 2020. The 11^th of May 2020 is the deadline for concluding agreements on managing ECPs (agreements that are concluded by the employer on behalf of employees.) It is worth noting that the number of employees should be determined as of the 30^th of June 2019.

Agreement on the management of ECP with a person who is on maternity or child care leave

The fact that an employee is on maternity or child care leave does not release the employer from the obligation to enter into an agreement on the management of Employee Capital Plan (ECP) with such person. Pursuant to Art. 2, item 1, point 18(f) of the Act on ECP, persons who perform work and are on child care leave, receive maternity benefit or a benefit equivalent to maternity benefit are also considered as employed persons. Such wording of the provision will only lead to a formal increase in the number of programme participants, as it does not entail the payment of contributions to the account of such person. In practice, their accounts in the programme will be empty. An exception from the above may be the situation when the employee receives outstanding remuneration or bonus, as social security contributions are due on such payments.

The influence of the increase in minimum wage on the amount exempt from deductions

From January 1, 2020, the net minimum wage for work amounts to PLN 1 877.62 (PLN 2 600 gross). Considering the above, in 2020 the amount exempt from deductions for receivables other than alimony is PLN 1 877.62. Additionally, with such amount of minimum wage, the exempt amount for cash advances is PLN 1 408.22 and PLN 1 689.86 for administrative fines. The above rates are calculated for workers employed on a full-time basis. For those employed on a part-time basis, these amounts are calculated proportionally.

In practice, this means that, if the net remuneration of an employee is PLN 1 900, then, on 2020, they may be charged for considerations other than alimony with an amount of PLN 22.38.

One should bear in mind that the amounts exempt from deductions are divided into three groups:

1. the net minimum wage amount – amounts due other than alimony;
2. amount equivalent to 90% of the net minimum wage – administrative fines;
3. amount equivalent to 75% of net minimum wage – cash advance payments for the employee.

Seniority bonus is not an element of personal remuneration for the purposes of calculating minimum wage

The amendment to the Act on minimum wages for work effective from the 1^st January 2020
states that seniority benefits shall not be considered for the purposes of calculating the remuneration of the employee. The above modification means that persons who have been employed for a long time will actually feel the change, as the seniority bonus will be another benefit not consummated as part of the remuneration itself. It is worth noting that the change in question will affect employees in the public sector, as it is them who are guaranteed statutory seniority benefits.

Burnout considered an occupational syndrome by the WHO

Starting from 2022, the new version of the International Classification of Diseases updated by the WHO will consider burnout as an occupational syndrome related to employment and unemployment. According to the WHO, this state is often caused by chronic stress at the workplace. It should be noted that, contrary to information published in the media, has not been considered to be an occupational disease. As a consequence, burnout cannot constitute a basis for medical leave, as it has not been classified as a medical condition. In other words, in the light of the changes to be introduced in 2022, burnout may constitute a factor that may potentially affect our health, but that cannot constitute a basis for sick leave. Nevertheless, such decision of the WHO may be the first step for burnout to be considered an occupational disease in the future. As a result, many employers have already been introducing mechanisms in order to actively prevent the occurrence of burnout, as they are more aware of the influence of this phenomenon on company performance.

Shops will open only on seven Sundays in 2020

In 2020, the number of “shopping Sundays” will be even lower than before. Trade will be permitted on the last Sunday of January, the last Sunday before Easter, the last Sundays of April, June and August and two Sundays directly preceding Christmas Day, i.e. the 26^th of January, the 5^th of April, the 26^th of April, the 28^th of June, the 30^th of August, the 13^th and 20^th of December 2020. It is worth noting that, among others, bakeries, ice-cream parlours and gas stations may still be open on Sundays. Additionally, the prohibition does not apply to shops whose owners will be serving customers.

Statement on no outstanding social security contributions may be obtained online

In November 2019, the Social Security Office announced another solution for entrepreneurs. Every entrepreneur may obtain a certificate on no outstanding social security contributions online, through the following platform: biznes.gov.pl. Such information is required for example when the entrepreneur is applying for a loan or placing bids in public tenders. A Trusted Profile or electronic ID are required to log in to the biznes.gov.pl website. The generated document should be signed with use of the Trusted Profile or qualified electronic signature to submit it for processing to the Social Security Office. The answer from the Office will then appear on the biznes.gov.pl website, and the entrepreneur will be notified by e-mail or text message. The certificate may be collected after logging in to the biznes.gov.pl account, in the “Moje sprawy” (My business) tab. The document may also be collected on the PUE portal of the Social Security Office, in the inbox.

Instructions: https://www.biznes.gov.pl/pl/firma/zus/chce-rozliczac-zus/proc_750-zaswiadczenie-o-niezaleganiu-zus

Low ZUS plus starting from February

On the 1^st of February 2020, the so-called Low ZUS plus will be introduced. This solution may be implemented in companies, whose income for 2019 did not exceed PLN 120 thousand. It consists in calculating social security contributions pro rata to the actual income. In the opinion of the Social Security Office, such contributions will be even several hundred zloty lower per month. This allowance may be used for 36 months during 60 consecutive months of conducting business activity.

Higher rates for delegated employees

EU Member States are obliged to implement the so-called revised version of the base Delegating Directive by the 30^th of July 2020. The amendment foresees introducing equal pay for equal work. This means a significant change for delegated Polish workers, as the EU regulations in force so far limited the freedom of employers only by obliging them to guarantee remuneration equivalent to minimum wage. Another modification limits the period of delegating to 12 months with an option to extend it to 18 months. After this period, the employee will be subject to all employment conditions in force in the host country as a rule.

The agenda of the National Labour Inspection for 2020

On the 18^th of December 2019, the Chief Labour Inspector presented the agenda of the National Labour Inspection for 2020 to the Labour Protection Council. He informed that the NLI was planning to conduct 72 thousand inspections throughout the country in 2020.

The Chief Labour Inspector also announced the following main tasks of the NLI for 2020:

• subjecting work establishments where accidents at work occurred to special forms of supervision;
• as far as legal labour protection is concerned – verifying whether civil law contracts are not concluded in conditions specific for employment contracts;
• inspection of remunerations in terms of the application of provisions obliging employers to pay minimum hourly rates.

Additionally, the NLI is planning to intensify inspections in entities that are obliged to introduce Employee Capital Plans. As this group of entities will be significantly expanded next year, the NLI is planning to intensify its control activity with respect to the correctness of employers’ actions related to the introduction of ECPs.

Important court decisions

Releasing the employee from the obligation to perform work may be withdrawn by the employer

In the light of the judgment of the Supreme Court of the 5^th of September 2019 (case file III PK 96/18), releasing the employee from the obligation to perform work is not a legal action (a statement of will). As a consequence, the employer has the right to withdraw such release after granting it and to unilaterally grant holiday leave. This judgment is most certainly beneficial for employers, while employees should be more careful when starting alternative employment during the period of notice.

Sending e-mails in the evening is not overtime work

In the sentence of the 4^th of September 2019 (case file II PK 172/18), the Supreme Court established that it cannot be assumed that an employee who performs remote work on a task work time basis devotes the whole time between sending the first and the last e-mail to work. According to the Supreme Court, in order to consider that an employee has worked overtime, they have to prove that they worked for the employer and, at least, upon implied consent of the employer, for a specific number of hours overtime. The above implies that the burden of proof in form of determining the number of hours of overtime work lies on part of the employee who files the demand, and that the court will analyse the factual circumstances connected with potential overtime work on an individual basis.