Labour and Social Security Journal 04/2022
Publication date: 2022
Place publication: Warszawa
Poland does not currently have a document that would regulate the assumptions of the national migration policy in a compact, coherent and comprehensive manner. Such a document should cover various areas of the functioning of the country. A very important part of it, especially in the current economic reality, should be the determination of regulatory directions for the labour market policy regulating the employment of foreigners. This does not mean, however, that Poland has never had a consolidated migration policy or that work on preparing such a document is not carried out. In 2016, the document — Migration Policy of Poland — current state and postulated actions [Polityka migracyjna Polski — stan obecny i postulowane działania] of 2012 was annulled. Recently, several documents of such importance have appeared, prepared either as part of public administration activities or grassroots initiatives. Despite the possibility to classify tchem only as projects or postulates, it should be definitely acknowledged that their content reflects both social and political trends, and therefore constitutes an important point of reference in research on migration-related phenomena. The increase of foreigners' presence on the domestic labour market is an undeniable phenomenon and its further development can be considered certain. For this reason, any legislative actions affecting the access of foreigners to the domestic labour market should be considered a socially important issue. This is because they are a reflection of the legislators’ will to regulate access of foreigners to the labour market. The subject of the study will be the examination of the existing legal regulations on access of foreigners to the Polish labour market in order to determine whether, and if so to what extent, they constitute a normatively coherent picture of the residua migration policy. Confronting the established legal state with possible directions of its development will allow to build de lege ferenda postulates in the aspect of migration policy concerning the labour market. Study focuses on those legal aspects of the migration policy concentrated on the labour market that do not seem obvious. Additionally, examples based on changes in the law effective January 29, 2022 will be described.
Publications on people with disabilities are mainly devoted to the situation of contact between a person and an organization. Aspects of recruitment, selection and physical adaptation to the workplace are widely discussed. Most of the research is conducted from the point of view of non-disabled people, who need to adapt to accepting people with disabilities in organizations and collaborating with them. However, few literature items are devoted to the assessment of employees with disabilities. The author ask whether people with disabilities and their direct superiors perceive employee assessment in a similar way? What criteria are taken into account when assessing the performance of disabled employees and their non-disabled colleagues? What attitudes towards work are promoted by superiors? The article presents the results of the analysis of the questionnaire survey of employees with disabilities (92 people) and their direct superiors (50 people) employed in open labour market enterprises. The results indicate some discrepancies in the perception of employee assessment of people with disabilities by both groups.
The paper deals with the possibility of concerted and joint inspections by the European Labour Authority. Inspections so far have concerned the construction sector, agriculture, and road transport. Concerted and joint inspections are an important part of the ELA's activities and competencies; however, it is open to question how often the social partners and the Member States will make use of this possibility.
The article is devoted to the analysis of the issues of protection of claims of employees employed in civil partnerships in the event of the employer's insolvency. The subject matter has been analyzed in two variants — in the first one it was assumed that the employer of employees is a civil partnership. In the second — that the collective employer are partners of a civil partnership. The author shows that the solutions of the Act on the Protection of Employee Claims in the Event of Employer Insolvency are not relevant to the structure of a civil partnership and the related difficulties in obtaining benefits from FGŚP, which may be encountered by employees of these companies. As a result of the research, de lege ferenda conclusions were formulated aimed at facilitating the receipt of benefits by employees employed in civil partnerships.
Automation and computerization of the activities of public authorities allows for administrative matters to be handled via the Internet, without having to leave one's house. Some proceedings conducted by the Social Insurance Institution during the epidemic were fully automated, that is they were processed without human (the institution's employee's) participation. It turned out that filing a benefit application remotely is possible, and so is automated verification of this application form-wise, automated assessment of the substance of the matter and settling thereof, and automated granting of the benefit and its payment. Proceedings on the idle-time benefit provided for in the COVID-19 Act serve as an example here. All steps in these proceedings were taken in an automated manner-without the participation of the clerk (the authority's employee). The new form of operation of public authorities that involves automated settlement of matters became a fact despite not having been stipulated by the provision of the law. The actions of the Social Insurance Institution ran ahead of the legislator, which means they were taken without a legal basis. Automated decision-making, due to the rule of law principle and the need to guarantee protection of the rights of parties to proceedings, requires that relevant regulations be introduced. It turned out that social insurance matters, owing to i.a. the schematic nature principle and the legal formalism principle, belong to the category of matters that are best suited to algorithm operations, and thus automated settlement.
The author presents the rules for summing up the periods of insurance, residence or employment, and for the proportional determination of completed insurance periods in the EU Member States. They are absolutely applicable in all situations related to the entitlement to social security benefits by persons moving within the European Union. The application of these principles is illustrated on the example of acquiring the right to an old-age pension. In the latest case C-866/19 SC v. ZUS I Branch in Warsaw, the CJEU ruled that the application of the above principle cannot be limited to the case analyzed in another "Polish" judgment in an earlier, similar case C-440/09. The potential conflict of interpretation applied by the social security courts in the Republic of Poland was resolved by the judgment of the CJEU of 21.10. 2021 in case C-866/19.
The author presents the case law of the Supreme Court relating to the cataloging of situations in which the severance pay provided for in Article 8 of the Act on collective redundancies, paid to the dismissed employee becomes an undue benefit. She puts special attention to the statements of the Supreme Court relating to individual dismissals under the Act (Article 10 of the Act of March 13, 2003).
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