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Labour and Social Security Journal 05/2022

ISBN: 0032-6186
Pages: 56
Publication date: 2022
Place publication: Warszawa
Binding: paperback
Format: A4
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DOI: 10.33226/0032-6186.2022.5.1
JEL: K31

In January 2021, The European Parliament adopted a resolution calling on the European Commission to adopt as soon as possible a directive establishing a so-called right to disconnect for all workers using digital tools for work purposes, a draft of which is annexed to the resolution. The right to disconnect is understood as the exclusion of digital tools for professional purposes outside of working time. The purpose of this article is to discuss the proposed legal framework for the right to disconnect and highlight the challenges that the right to disconnect must face. Analyzing the proposals of the European Parliament, the author draws attention, inter alia, to the doubts concerning the subjective scope of the right to disconnect. The biggest challenges include establishing practical arrangements for disabling digital tools, especially in the case of flexible working time arrangements, enterprises operating internationally and/or with continuous operations that prevent server shutdowns. The author also points out that the implementation of the right to disconnect cannot be focused on technical and organizational solutions but requires that the problem of workload and time management be solved in accordance with the right to disconnect.

Keywords: right to disconnect; digital tools; working time; rest time; health; work-life balance; discrimination
DOI: 10.33226/0032-6186.2022.5.2
JEL: J62

Transformative changes in the world of work driven by globalisation and technological innovation pose enormous challenges for advancing the right to decent work. Decent work remains an "exclusive" and "luxurious" ideal for a growing number of workers. Young workers are especially vulnerable in this regard and are more likely to find themselves in a situation of precarity. This is due to the fact that they are experiencing twofold, inter-related, difficulties: the transition from education to work and the access to employment contracts that guarantee decent working conditions. This contribution analyses legal regulations addressed to young people and evaluates how this legislation impacts the position of young people in the labour market in Poland. The research will focus on solutions reaching out specifically to young people under the justifications of "education to work transition", "job creation" and "young unemployment" and include: apprenticeship, traineeship and internship. The study will examine how the regulation under analysis affects the access to decent work and other fundamental rights at work that are enshrined in both international instruments and the Polish Constitution and regulatory framework.

Keywords: young workers; employment; unemployment; decent work
DOI: 10.33226/0032-6186.2022.5.3
JEL: JEL: J32, J46, J51

On December 8–9, 2021 on the ZOOM platform,the 4nd National Scientific Conference of the Atypical employment relations series was held on the subject of "In search of a legal model of self-employment protection in Poland". The conference was organized by the Center of Atypical Employment Relations and Student Forum of Atypical Employment Relations operating at the Faculty of Law of the University of Lodz. 228 people registered for the conference. The event was attended by 55 speakers, both in plenary sessions and in the poster session. On the second day of this conference, was separate panel for doctoral students and students. It was the biggest national scientific conference on labour law in 2021.

Keywords: self-employment; social security; bogus self-emplyment; subcontractors
DOI: 10.33226/0032-6186.2022.5.4
JEL: K31

The another amendment to the labour code is planned, including in the field of fixed-term employment contracts. According to the assumptions of the draft, the termination of such a contract will require a justification, union consultation, and the employee will be able to demand reinstatement. The purpose of this article is to evaluate the proposed changes in terms of their system coherence, including EU law, and in relation to the essence of a fixed-term employment contract. The existing regulation is unsatisfactory. The proposed solutions should be considered correct, however, they do not exhaust an essential aspect related to the essence of the agreements in question — their stability. The regulation that existed before the 2015 amendment, allowing the termination of a fixed-term employment contract only if there is a relevant provision in the contract, was appropriate in this respect, therefore it is changes proposed in the draft.

Keywords: fixed-term employment contract; termination of a fixed-term employment contract
DOI: 10.33226/0032-6186.2022.5.5
JEL: K31, K12

The aim of this article is to determine the impact of the principle of privilege of employees on the freedom of the employer and employee to shape the provisions of employment contracts and additional contracts. The article contains arguments which justify the thesis that mechanism provided in Article 18 para. 2 of the Polish Labour Code may apply only to the provisions of employment contracts. The analyzed mechanism does not include named and unnamed additional contracts concluded by the parties to the employment relationship. However, a specific clause may be classified as a provision of an employment contract based on its content and not on its location. Provisions of employment contracts may be subject to assessment only on the basis of the provisions of the labour law in terms of Article 9 para. 1 of the Labour Code. On the other hand, the principles of community life and the nature of the obligation are not the criteria of evaluation in this case.

Keywords: principle of freedom of contract; principle of privilege of employees; an employment contract; named labour law contracts; unnamed labour law contracts
DOI: 10.33226/0032-6186.2022.5.6
JEL: K31

The subject of the article is collective rights of temporary workers. The nature of a temporary employment relationship, in which the employer is the temporary work agency, but the work is performed under the direction of the user undertaking, has an impact on this sphere of employee's rights. Because of the recent amendment to the provisions of the Act on Trade Unions the following areas was analyzed (i) associating in trade union (ii) the problem of including this group of employees by the provisions of collective agreements, (iii) issues of collective disputes.

Keywords: collective rights; temporary workers; trade unions
DOI: 10.33226/0032-6186.2022.5.7
JEL: K31

This case deals with two legal issues concerning Directive 2008/104/EC. The first issue concerns the interpretation of the scope of the Directive in relations to an EU agency, i.e. the European Institute for Gender Equality (EIGE). Thereto the Court of Justice of the EU (CJEU) had to establish whether such an agency fulfils the three requirements of Article 1(2) Directive 2008/104/EC: EIGE must fall within the definition of "public undertaking"; be a "user undertaking"; and must be engaged with "economic activities." Following the EU's autonomous interpretations of these three requirements, the Court concluded positive on all three of them. The second legal issue deals with the question whether the principle of administrative autonomy of an EU agency as laid down in Article 335 of the Treaty on the Functioning of the European Union (TFEU) will be hindered when temporary agency workers are treated equally in terms of their basic working and employment conditions (Article 5(1) Directive 2008/104/EC) as those workers who are directly employed by the EU agency. The CJEU's conclusion is that such is not the case, since 1) the comparison is to be made at the level of the tasks of the job, and 2) the workers did not claim full equal treatment, but equal treatment on wages which is covered as a basic working condition by Directive 2008/104/EC).

Keywords: basic working and employment conditions; EU agency; EIGE; equal treatment of temporary agency workers
DOI: 10.33226/0032-6186.2022.5.8
JEL: K31

The author presents the latest judicature of the Supreme Court relating to the issue of convergence of employee's claims due to mobbing and termination of an employment contract without notice due to a serious breach by the employer of basic obligations towards the employee (Article 55 para. 11 of the Labour Code and Article 943 para. 4 of the Labour Code). The judgment additionally explains the legal nature of the compensations provided for in the aforementioned provisions.

Keywords: convergence of claims; mobbing — claims; termination of the employment contract without notice by the employee where employer has committed a grave violation of its basic obligations towards the employee
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