Non-contractual employment relations

In addition to the employment contract, the employment relationship may also be created by the appointment, appointment, election and cooperative employment agreement. In these doctrines four the types of employment relationship are called non-contractual.

Contrary to the conventional definition that these are relationships arising without a contract, this is indeed a significant simplification. The basis for each of these employment relationships is a consistent declaration of the will of the employer (or entity acting on his behalf) and candidate for employee.

The term ‘non-contractual’ shall be understood as arising ‘outside of the employment contract’ and in fact not deviating from the regulation contained under Article 11 Act on 26 June 1974 Labour Code 1 (Further as: k.p.).

1. Introduction to vocational employment relations

The basic regulation of labour relations from vocation can be found in K.P. Under Article 68 And the next. These provisions modify the overall model of employment relationship by weakening their sustainability and reducing labour rights due to the failure of these relationships. Article 68(1) k.p.

states that the employment relationship with the appointment is established in cases specified in the regulations separate from the latter. These provisions may include provisions of statutory rank, possibly provisions of lower rank, e.g. statutes for which the Act delegates powers to lay down rules on the employment of workers.

It should be borne in mind that there are many cases in the legal system that provide for the possibility of appointing a certain position. We are talking about vocations within the meaning of k.p.

only if, in addition to the reference to the appointment of a person, it is clear directly or indirectly that the person is to remain in employment.

This position was presented in the resolution of the Supreme Court of 11 January 2005 2 If this condition does not exist, the appointment shall be a technical and organisational activity such as the appointment of a member of the board of directors of a commercial company or any other legal activity such as the appointment of a judge.

Thus, in the current state of the law, vocation within the meaning of Article 68 K.p. acts, inter alia, in the event of taking over the position of directors of state-owned enterprises 3 , seniors in civil service 4 or some government administrations 5 .

2. Legal nature of the appointment

In the old days, literature dominated the view that vocation was a variety of administrative acts.

It was then assumed that the nature of the appointment act depended on the type of position entrusted; in the case of the post of director of a state enterprise and other state office managers, it considered the type of administrative act and, for other posts, the form of labour law activities.

At present there are compelling grounds for defending the position that the vocation act is a unilateral legal act or even a declaration of the will of the body, including an offer to establish an employment relationship.

The nature of the appointment act is very closely linked to the fact that it is the basis for engaging in managerial positions. Establishment act within the meaning of Article 68 K.P. has a dual role. On the one hand, are entrusted with a management position (i.e. an organisational relationship), second in relation to content Article 11 The act of appointment shall be treated as a declaration of the employer's will.

3. Job relations with appointments

The appointment institution, also known as nomination, is currently present in two persons such as staff appointments and service appointments. first of them is the basis of employment relations with the known business name of employment relations, second – service relations in militarized services – military, police, Internal Security Agency, Central Anti-corruption Office, Customs and Tax Service.

It should be pointed out that business relations are administrative and not governed by labour law. The special provisions contained in the so-called labour and auxiliary pragmatologies are applicable to employment relations from the appointment, while the so-called service pragmatisms (police, military, etc.) apply to business relations.

According to Article 76 K.P., employment relationships with appointments are established in cases clearly defined in the regulations separate from K.P. As with regard to appointments, separate provisions within the meaning of that provision may only be legal acts of a statutory nature.

Appointment as the basis of employment relationship currently occurs in four employment-related areas. This includes public administration in the broad sense of the word (e.g. civil servants, labour inspectors, NIK inspectors, Attorney General's advisers), education (teachers appointed and certified in general schools, professors in higher education), education (professors in research institutes and the Polish Academy of Sciences) and the judiciary (judges, prosecutors, referees, curators).

4. Legal nature of the appointment

Previous literature and case law assumed that the appointment was an administrative act and even an administrative decision. After a number of socio-political changes from years 90. The 20th century lost its importance. Hence, the view is now accepted in the case law 6 , that the appointment act is an activity in the field of labour law, or even a declaration of the will of the employer or an entity representing the employer required in accordance with Article 11 k.p.

It should not be forgotten that the act of appointment itself does not yet give birth to an employment relationship, since under that provision, establishing an employment relationship, regardless of its legal basis, requires a consistent declaration of will by the employer and the employee. The appointment is therefore a declaration of will in question under Article 11 The employment relationship itself depends on the consent to take up employment of the appointed person.

Furthermore, it should be noted that the appointment act may not only be the basis for establishing a employment relationship, but very often also the basis for converting the employment relationship from a contractual to a nomination. This will occur in civil service, labour inspection, general or higher education. In these cases, the appointment act replaces the employment contract, transforming the employment relationship as regards the employment basis.

5. Labour relations by choice

The employment relations established on the basis of choice are subsidiary to the dominant organisational relationship. According to Article 73(1) k.p., the employment relationship is established on the basis of a choice where the choice results from the obligation to perform work as an employee.

This is decided by the relevant body rules (statutory or organisational provisions). The most frequently discussed basis for establishing an employment relationship can be found in local government administration.

According to the law of 21 November 2008 of local staff 7 , employment relations on the basis of the choice are established (if the statute so provides) with the marshal of the voivodship, vice-president of the board of directors and other members of the board of directors of the voivodship, the governor, the Vice-Statist and other members of the district board, the mayor, the president of the city, the chairman of the board of directors of the inter-community union and other board members.

In addition to the self-government sphere, the choice as the basis for establishing employment relations is mainly used to perform managerial functions in social organisations (e.g.

trade unions) or in the boards of commercial companies (if the company's contract with a limited liability company or the statutes of a joint stock company so provide).

The most characteristic feature of labour relations by choice, resulting from the subsidiary nature, is the absolute dependence of their existence on the organisational relationship. The employment rate of choice shall be determined only if the mandate is terminated. It shall not be governed by the provisions on termination of the employment contract by notice or without notice, including on the basis of Article 52 k.p.

This view was presented in the Supreme Court judgment of 4 December 1979 8 . The term of office shall be terminated in the cases referred to in the legislation (e.g. in the Law of 5 January 2011 Electoral Code 9 ), most often due to the expiry of a certain period (term of office) or the dismissal of an employee by the authority which elected him to the post. The resignation of the mandate has similar effects.

6. Summary

Among the entire range of solutions provided for non-contractual employment relations, we can look for many similarities with the classic employment contract. The above study presents the basic outline of regulations, without going into details related to other institutions of labour law, such as work leave, working time or remuneration.

In order to increase the knowledge of more official forms of employment, there is no doubt that the legal trends which largely shape the universal practice of applying fairly general labour law should be monitored on an ongoing basis.

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1 i.e. Journal of Laws of 2019, item 1040.

2 reference no. I PZP 11/04.

3 Article 33 Act on 25 September 1981 State enterprises, Journal of Laws of 2002, item 981.

4 Article 53a Act on 21 November 2008 of civil service, i.e. Journal of Laws of 2020, item 265.

5 Article 45 Act on 16 September 1982 of civil servants, i.e. Journal of Laws of 2018, item 1915.

6 reference no. I PKN 57/96.

7: i.e. Journal of Laws of 2019, item 1282.

8 reference no. I PR 93/79.

9 Journal of Laws of 2019, item 684.