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Labour and Social Security Journal 05/2021

ISBN: 0032-6186
Pages: 60
Publication date: 2021
Place publication: Warszawa
Binding: paperback
Format: A4
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DOI: 10.33226/0032-6186.2021.5.1
JEL: K00, K10, K31

The paper focuses on a problem of compliance legal norm — that is so called privileging the employee's principle (in scope that is currently predicted in an Article 9 para. 2 of Polish Labour Code) with the Constitution of Republic of Poland. The purpose of paper is justification of thesis that subjected principle is de lege lata constitutional norm and showing important consequences of this conclusion. In order to accomplishment of this purpose, article shows results of analysis of relevant regulations that were binding in different moments of time, and use theoretical concepts, especially such as the integrated concept of legal principles and the typological linguistic content of the predicate.

Keywords: privileging the employee's principle; labour collective agreements; integral concept of legal principles
DOI: 10.33226/0032-6186.2021.5.2
JEL: K31

The article is devoted to the issue of the coalition in trade unions of persons employed on civil law basis. The notion of civil law employment may be understood in different ways. In the narrow interpretation (sensu stricto) it refers only to individuals who perform work under civil law agreements, such as a contract of mandate or an agreement on the provision of services. In the wider sense (sensu largo), one might also add performing work by self-employed persons (b2b). Moreover, the article discusses some aspects of the status of trade union officials performing work on a civil law basis.

Keywords: collective labour law; trade unions; civil law contracts; trade union officials
DOI: 10.33226/0032-6186.2021.5.3
JEL: K31, K33

The article deals with the jurisprudence of the Supreme Court of Canada regarding the relationship between the right of association and the right to collective bargaining and the right to strike. The paper analyzes such sentences as: BC Health or SFL v Saskatchewan. The article presents the "dialogue" between individual courts and tribunals. In the SFL v Saskatchewan ruling, the Supreme Court of Canada points to a growing international consensus that if the right to collective bargaining to be meaningful, it must include the right to strike. In these considerations the court directly refers to the achievements of the European Court of Human Rights in Strasbourg. The relationship between the jurisprudence of both entities is clear. A clear common base is the output of the quasicase law of the International Labor Organization.

Keywords: : right of association; right to collective negotiation; right to strike; Supreme Court of Canada; quasi-case law of the ILO
DOI: 10.33226/0032-6186.2021.5.4
JEL: K31

The subject of the article is to present the entitlements of the National Labour Inspectorate (NLI) in determining the existence of employment relationships. The analysis shows that the legal instruments available to NLI inspectors in this regard include referring the employer to an application, conducting misconduct proceedings or bringing an action to the labour court for establishing the existence of an employment relationship. In practice, these measures are ineffective. Under the current legal status, labour inspectors are not entitled to issue administrative decisions establishing the existence of an employment relationship. However there are certain arguments of a dogmatic and legal nature for granting them such an entitlement, which, would also require the creation of an appropriate appeal procedure, which should be similar to the appeal procedure against the decisions of the Social Insurance Institution.

Keywords: National Labour Inspectorate; employment relationship; determination of the existence of an employment relationship; administrative decision
DOI: 10.33226/0032-6186.2021.5.5
JEL: K31

Remuneration for the time of unemployment (Articles 47 and 57 of the Polish Labour Code) is not remuneration, but compensation which additionally has a repressive-preventive function. No provision of social insurance excludes the possibility to award compensation for the time of receiving sickness benefit, maternity benefit or rehabilitation benefit. "Remuneration" for the time of unemployment should also be granted for the period of inability to work of a particularly protected employee (Article 47 sentence 2 and 57 para. 2 of the Labour Code) who was unlawfully dismissed — in such a way that the employer should be obliged to cover the difference between the amount of the social insurance benefit and the remuneration the employee would have received if he had worked.

Keywords: remuneration for the period of being out of work; special protection against dismissal
DOI: 10.33226/0032-6186.2021.5.6
JEL: K31

This article presents the problem of burnout. In the article was presented its genesis, symptoms and their consequences for employees as well as for employers and for the whole society. The article presents solutions adopted in European countries, whose aim is to prevent burnout. The article attempts to analyze what solutions can be adopted in Polish law to prevent burnout, and whether burnout can be considered an occupational disease. Proposed solutions the implementation of which would help employers in the fight against the burnout syndrome, were also presented.

Keywords: occupational burnout; occupational disease; European labour law; psychosocial factors at working environment
DOI: 10.33226/0032-6186.2021.5.7
JEL: H55

The author analyses case law of the Court of Justice of the European Union on the binding effect of a certificate on legislation applicable (E101 and A1) for courts of a Member States in the event of fraud. Both in Polish literature and in case law, judgments in this area are assigned with different effects. What seems to prevail is a believe that the binding force of the abovementioned certificates has been weakened. This study aims at critical analysis of such a view, as well as at establishing conclusions resulting from the emerging jurisprudence. The first part of the study was published in the previous issue of the Labour and Social Security Journal

Keywords: certificate E101; certificate A1; binding effect of certificates on legislation applicable
DOI: 10.33226/0032-6186.2021.5.8
JEL: K31

The study presents the latest ruling of the Supreme Court (judgment of 5 November 2020, II UK 33/19) regarding the issue of employment as employees of partners in limited liability companies and the consequences of this in the field of social insurance.

Keywords: limited liability company; shareholder of a limited liability company; coverage by compulsory social insurance — title; employment relationship of a partner in a limited liability company
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