Labour and Social Security Law – Poland
November 2019
National conference on the amended Act on Trade Unions – Krakow, November 21, 2019
We would like to kindly invite you to take part in the conference: “Amending the Trade Unions Act – a year after its adoption”. The conference will take place on the 21st of November 2019, in Krakow, at the Auditorium Maximum at 33 Krupnicza Street. The speakers will include: Professor Małgorzata Gersdorf, PhD., hab. (1st President of the Supreme Court), Professor Krzysztof Wojciech Baran, PhD., hab. (Head of the Department of Labour Law and Social Policy of the Jagiellonian University), Professor Zbigniew Hajn, PhD., hab. (Head of the Chair of European and Collective Labour Law of the University of Lodz, retired judge of the Supreme Court) and Daniel Książek, PhD. (Jagiellonian University).
Detailed information about registration is available here: zwiazkizawodowe.confer.uj.edu.pl/rejestracja
Companies listed on the Stock Exchange – creating and publishing remuneration policies for Members of the Management Board and Supervisory Board
Companies listed on the Warsaw Stock Exchange are soon going to face an important change. The implementation of the SRD
II Directive (Shareholders Directive Rights) will introduce a new model of controlling members of the Management Board and Supervisory Board by shareholders. Companies listed on the stock exchange will be obliged to create and publish remuneration policies and reports on the remuneration of members of the Management Board and Supervisory Board on their own websites.
The new obligations will apply to companies of which at least one share has been admitted to trading on a regulated market. In practice, this means that the obligation will be binding for all companies listed on the Warsaw Stock Exchange. It is worth noting that the provisions of the Directive do not apply to banks, investment funds and entities managing Alternative Investment Companies (ASI) or brokerage houses.
Although it is the General Meeting of Shareholders who adopts the resolution approving the policy of remunerating members of the Management Board and Supervisory Board, Members of the Management Board will be responsible for the information contained therein. Such report will be subject to audit by a certified auditor with respect to the information contained therein.
The Act requires companies to create such policies regularly; the company is obliged to adopt a resolution on remuneration policy at least once in every four years.
As a consequence, stock exchange listed companies will be obliged to create remuneration policies and to prepare reports on remuneration systematically.
The Act will enter into force 14 days after the date of announcement, i.e. most likely in the end of November 2019.
Case of covert surveillance of employees
The European Court of Human Rights has settled the case of “López Ribalda and others” vs. Spain. The ECHR deemed that, under Spanish law, covert surveillance of employees with use of cameras may only be permitted if there is a justified risk of high losses for the company and if serious violations on part of the workers are suspected. The question arises whether this judgment may be of importance for companies operating in Poland.
In its statement of the 22nd of October 2019, the Personal Data Protection Authority noted that the judgment of the ECHR is applicable only in the light of Spanish legal regulations and that it cannot be applied analogically in Polish conditions.
It is worth mentioning that the issue of surveillance is regulated in the Polish Labour Code, which requires it to be used only for certain purposes and in specific premises. What is important is the fact that the Polish Labour Code indirectly forbids the application of covert surveillance, by obliging employers to disclose its application in the collective work agreement or work regulations and to notify the employees about the introduction of surveillance not later than 2 weeks prior to its introduction.
In other words, one cannot exclude that this judgment will not have a significant influence on the surveillance use in Poland. Employers who operate in Poland still have to take into account all the provisions of the Polish Labour Code and all the relevant limitations. However, an employer who decides to use covert video surveillance in extraordinary circumstances may defend this decision precisely in the light of this ECHR judgment. Such view is supported by the fact that Poland is a party to the Convention on the Protection of Human Rights and Fundamental Freedoms, which was the basis for the judgment in this case.
Link to the judgment: https://hudoc.echr.coe.int/fre#{“itemid”:[“001-197098”]}
EU protection for whistleblowers
The Directive on the protection of persons who report breaches of Union law was adopted by the Council of the EU on the 7th of October 2019. This means that Poland is obliged to create protection mechanisms for whistleblowers within two years. The existing regulations did not foresee such institution in the Polish legal system.
The Directive introduces the “obligation to establish internal channels and procedures for reporting and following up on reports”. The new regulations will apply both to private and public entities.
Pursuant to the Directive, legal entities in the private sector are defined as:
- entities with 50 or more employees;
- private legal entities with an annual business turnover or annual balance sheet total of EUR 10 million or more;
- private legal entities of any size operating in the area of financial services or vulnerable to money laundering or terrorist financing, as regulated under the Union acts.
The Directive defines legal entities in the public sector as:
- state administration;
- regional administration and departments;
- municipalities with more than 10 000 inhabitants;
- other entities governed by public law.
The implementation of the Directive means that entrepreneurs will be obliged to establish systems for reporting breaches (whistleblowing), to develop appropriate internal policies, to specify persons responsible for accepting reports and to take appropriate follow-up actions. Apart from whistleblowing, the implementation of the whole compliance (non-compliance risk management) remains to be considered. Failure to meet the imposed obligations will be penalised, and the system of penalties will be regulated by the Polish legislatory authorities.
Reinstatement of an employee to work before valid judgment has become possible
On the 7th of November 2019 an amendment to the Code of Civil Procedure that has a significant influence on the procedural situation of both employees and employers entered into force. Pursuant to one of the amendments, if the court of 1st instance considers the termination of an employment contract ineffective or reinstate the employee to work, the court may oblige the employer to employ the worker in question without the necessity for the judgment to become valid. In other words, if the employer terminates the employment contract with an employee and the latter files a motion for being reinstated to work to the court during the proceedings, the court may order the employer to restore the employee to work, even in the event of potential proceedings before the court of the 2nd instance. So far, such possibility existed only if the termination of the employment contract was deemed as ineffective. In practice, this happened rarely, due to the long duration of court proceedings.
The newest statement of the President of the Personal Data Protection Office – disclosing telephone numbers and e-mail addresses to financial institutions
In the latest statement the President of the Personal Data Protection Office informed that an employer who is obliged to enter into an agreement on maintain an Employee Capital Plan with a financial institution has to disclose the telephone number and e-mail address of the employee to this institution, if the employer is in possession of such data. Detailed information is available here: https://uodo.gov.pl/pl/138/1251
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If you have any questions, please do not hesitate to contact us by e-mail at: office@ksiazeklegal.pl or by phone: +48 12 426 42 31.
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The above legal alert does not constitute any form of legal advice. Persons interested in obtaining legal advice or more detailed information on the issues contained in this legal alert are asked to contact our law firm directly.
