Labour and Social Security Journal 1/2020
Publication date: 2020
Place publication: Warszawa
The world lacks a coherent and positive narrative that would indicate what to do next with work. These comments should be related to the final vision of "Future work" by the ILO. This must, therefore, be accompanied by an appeal for the ILO to keep up more with today's challenges. It is not about the ILO advocating the end of work, but about the fact that in the era when artificial intelligence (more broadly: digitization) is an unfinished project, it commit to take into account two future eventualities: continuation of work or its end. This approach does not risk leaving people alone in case they lose their jobs and income permanently.
Due to the increased use of subcontracting and of posted workers in the Belgian labour market, problems regarding correct remuneration of these employees have come under scrutiny. The Belgian authorities are often confronted with situations where these workers do not receive the correct wages by their employer, often a (sub)contractor working for a Belgian company. A joint liability scheme was therefore introduced in 2012 where a client or contractor can be held liable for the correct payment of the wages to the employees of the (sub)contractor when the latter has seriously failed to fulfil their obligation to pay their employees the wages to which they are entitled. This article discusses the liability scheme in theory and in practice, by reviewing its application in the case of a Polish posting undertaking.
On October 3, 2019, in the Council Room of the Faculty of Law and Administration of the University of Lodz, the 2nd National Scientific Conference of the "Non-typical employment relations" series was held on the subject of "Collective labour law or collective employment law? Protection of the rights and collective interests of persons engaged in gainful employment outside of employment relationships". The conference was organized by the Center for Non-typical Employment Relations, operating at the Department of Labour Law of the University of Lodz.
By the Act of July 4, 2019, which entered into force on November 7, 2019, Article 4772 para. 2 of the Code of Civil Procedure has been revised. This change may affect the situation of an employee who has lodged an appeal to the court against the termination or notice of termination of the employment contract by the employer and demands the ineffectiveness of termination or reinstatement under the previous terms and conditions. At the employee's request, the court in a non-final judgment reinstating the employee may impose an obligation of the current employer to employ the employee until the final termination of the proceedings. Due to the fact that the reinstatement takes place when the employment relationship has already been terminated, and the employment should last until the final termination of the proceedings, in practice a number of doubts and problems arise as to how the judgment should be implemented by the employer. An important question, which, according to the author, should be answered by the legislator (by revision of the discussed provision) is whether "reinstatement", which is stipulated in Article 4772 para. 2 of the Civil Code, is connected with a claim for reinstatement, which is a consequence of unlawful or unjustified notice of termination of the employment contract (such is the Author's request after a comprehensive analysis of the provision), or termination without notice.
In the present article the author discusses a pre-court stage of member's headcount of a trade union. He especially analyses the problems regarding the application of this legal institution. In the author's opinion, this is a very formal legal institution.
The Court of Justice of the EU on 12 December 2019 issued a judgement in case C-450/18, WA vs Instituto Nacional de la Seguridad Social (INSS), concerning the issue of equal treatment for men and women in matters of social security. According to the Court, EU law precludes national legislation which makes provision for the right to a pension supplement for women who have had at least two biological or adopted children and who are in receipt of contributory permanent incapacity pensions under a scheme within the national social security system, while men in an identical situation do not have a right to such a pension supplement.
The author refers to the latest decision of the Supreme Court (judgment in case I UK 194/128), in which the Court emphasized the legitimacy of the position according to which the subject of social insurance due to employment in Poland of citizens of countries from outside the EU is not determined by the nature of the document authorizing Poland but the fact of permanent residence on the territory of the Republic of Poland.
The subject matter of the commentary involves the judgement of the Supreme Court in which the Court examined the legal nature of an agreement for an arrangement for payment in instalments of contribution debt, executed between the Social Security Institution and the contribution payer. The court concluded that it is a civil law agreement, which makes it possible to apply provisions of civil law to the assessment of appropriate performance thereof. The commentary presents arguments contrary to this belief. The normative basis of the activities of the administration body was subject to analysis, depending on whether it concerns public law activities (imperium) or carrying out civil law acts. The model of administrative competence was discussed which entails the body's power and obligation to act in the public law sphere, and the model of general competence underlying the principle of the freedom of contract of civil law entities.
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