Transition of the workplace to another employer

The basic legal event leading to the change of employer to which ex lege occurs is the transition of part or all of the establishment to a new employer, provided for under Article 231(1) Act on 26 June 1974 - Work Code[1] ((c.p.) As a result of the transition of the establishment or part of the establishment, the existing content of the employment relationship is maintained.

Moreover, the doctrine of labour law indicates that one the overriding objectives of this regulation are also to protect the interests of the employer, which is expressed in the fact that the acquiring employer has a guarantee of maintaining such a set of components that allow for the conduct of an undisturbed business.

This study presents the general framework of the institution for the transition of the workplace to another employer, as well as selected judicial decisions on this problem.

1. Introduction

Article 231(1) k.p. was added to the Polish Act governing employee relations on 1 May 1989[2].

In European law, or more specifically in EU law, the question of the transition of a workplace to an employer, or the transfer of a company, is now regulated in Directive 2001/23 to 12 March 2001 on the approximation of the laws of the Member States relating to the protection of workers' rights in the event of acquisition of undertakings, establishments or parts of undertakings or establishments[3] (hereinafter referred to as Directive 2001/23).

This Directive replaces the existing Directive Directive 77/187 to 14 February 1977 The overarching objective of EU law in this regard is to protect workers in the event of a transfer of a company, in particular the protection of rights acquired by employees, and to protect the stability of employment relations.

2. Work establishment and part of the establishment

Under Article 231(1) k.p. are used with concepts that are not defined in labour law, in particular, such as ‘work establishment’ or ‘transition’. The meaning of these concepts should be sought in judicial or scientific jurisprudence.

It should be noted at this point that, despite prejudicing what is a ‘work establishment’, ‘part of a work establishment’, ‘transiting an establishment’, there are still serious difficulties in defining them in relation to specific facts.

The ‘work facility’ should be understood as an organised organisational unit consisting of a set of assets and non-material assets (e.g.

machinery, equipment, buildings, intangible goods as well as functions and tasks) in which workers are employed, the team having to form an organized and functional whole so that the employer can carry out its activities on its basis.

The ‘part of the establishment’ should be understood as a set of assets and non-mandatory assets which, after being separated from the establishment, may constitute a structured and functional whole enough for the employer to carry out his or her activities and continue to employ staff.

3. Transition of the workplace

The jurisprudence of the TEU and the Polish Supreme Court assumes that the transition of the workplace is, in particular, the taking over of tasks or functions previously performed by the former employer, e.g. cleaning services, legal services[4], accounting services, public health care tasks.

By Directive 2001/23 the basis for the acquisition of the establishment is the transfer of ownership of the undertaking or establishment and the merger. According to Article 1(1lit).

b of that directive, the acquisition takes place when an economic entity that retains its identity, meaning an organised pool of resources whose objective is to carry on an economic activity, whether primary or auxiliary.

The fundamental criterion of transition to the case law of the TEU is the change of the natural or legal person operating the establishment, combined with the acquisition of obligations towards employees.

A slightly different concept of the transition of employment establishments in the Supreme Court case-law, in which it is noted on several occasions that maintaining the identity of the employer's activities after the transition of the establishment or part of it to another employer is an optional element.

In the ruling of the SN of 3 June 1998[5] a clear position was adopted according to which for the application of the standard Article 231(1) k.p. is the subject of activities carried out by the new employer on the basis of assets acquired in full or in part from the previous employer.

The activities of the new employer carried out on the basis of this property may be of different kinds. In Polish science, labour law assumes that the transition of the workplace or its parts to another employer is the result of a change in the state of the establishment or its part between entities, i.e.

former new employer or the effect of new entity taking over tasks[6] or functions performed so far by another entity.

4. Basics and point of transition

Article 231(1) of the Labour Code does not specify the legal basis for transferring an establishment or part of it to another employer.

Directive 2001/23/EC states that the legal basis for the transition may be legal acquisition or merger, with the concept of legal acquisition possibly covering different legal events, including both legal acts, administrative decisions and judicial decisions.

In the Polish doctrine of labour law and judicature, it is recognised that legal and factual events (transition without legal basis) can be the basis for the transition of the workplace.

Legal events underlying the transition may be:

1. bilateral and unilateral civil law, inter vivos and mortis causa, e.g. sales agreement, donation, leasing, lease, termination of lease agreement resulting in the transfer of the subject matter of the contract back to the party granting the lease, inheritance;
2. administrative decisions[7];
3. judicial decisions. A particular basis for the transition of a work establishment may be factual acts for which there is no legal basis (e.g. due to the nullity of the legal act on which the establishment takes over). This is the basis for the transition in both case law and the science of labour law. Based on what has been said so far by the CJEU, this type of transition is not acceptable in light Directive 2001/23.

The date of the transition of the establishment or part of it to a new employer is the moment of the actual taking over of the undertaking (part of it) or the actual taking over of tasks[8].

If, for example, as a result of the expiry of the lease agreement we are dealing with the conversion of the establishment to the lease, the day of the transfer of the establishment of work within the meaning of Article 231(1) k.p.

is the date of recovery of the actual power over that establishment and not the date of expiry of the lease agreement.

5. Summary

Article 231(1) k.p. applies regardless of the type of ownership of the workplace, the type of activity of the employer or the number of employees.

It applies both in the private sphere (to non-public employers with or without legal personality) and to public employers (to public employers such as: offices, courts, public schools and employers with legal personality such as ZUS, NFZ). Because Article 231(1) k.p.

is a mandatory provision, having ex lege effect, because any agreement between employers (present in practice) which would lead to circumvention of this provision is invalid.

For example, if employers establish a list of employees who are not taken over by the new employer, even though they have provided work in the acquired workplace or part of it, the employer's agreement in this area is invalid and employees have a claim to work with the new employer.

The purpose of the regulation Article 231(1) The protection of the sustainability of labour relations, but also the protection of working conditions and pay. The transition of the workplace to a new employer does not result in any change in the content of work relations. The only change involves one the employment relationship, i.e.

An employer. The new employer may terminate the working conditions and wages of employees, and until they are terminated they are bound by the existing conditions, which are the content of employment relations.

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