Questions and doubts about the need to amend the Labour Code

In March 2018 work on the draft new labour law has been completed. However, the effect of the proposal from the Codification Committee on Labour Law will not soon be translated into a new code. However, individual parts of the project may be the basis for smaller amendments, covering only selected parts of the current Labour Code 1 .

In this text, the author attempted to identify those regulations which cause the greatest problems both in practice and in the doctrine of labour law, but limited to selected institutions of working time (now Division VI Work Code).

These passages – according to the author, given his professional work – require special attention from legislators.

Average weekly overtime

Note that the Labour Code, under Article 151(1) defines the concept of overtime. According to him, this is, among other things, work performed above the working time standard in force.

At the same time, the doctrine of labour law assumes that overtime may be due to so-called daily overruns (when the work is performed above the daily standard of working time, e.g. 8 hours or more than an extended daily working time), as well as of average weekly overruns 2 .

However, while there is no doubt in principle about the way in which the daily overruns are determined, the legislator has not proposed any rules on the determination of overtime for exceeding the average weekly standard.

This results, for example, in the fact that in practice they function two alternative methods of calculating the number of such hours, commonly called the State Labour Inspection Method 3 and the Ministry of Family, Labour and Social Policy 4 ().

Following this – depending on the method chosen by the company – more or less such hours may arise during a given settlement period, which, of course, translates into the remuneration of the employees.

Depending on the position taken, therefore, there are situations where the same work may require the payment of different amounts of overtime allowance.

Importantly, the practice has long suggested simplifying overtime rules by, for example, stopping differentiation of such hours due to daily and weekly overruns. Such regulation could be successfully replaced, for example, by reference to the number of working hours in relation to the working time.

This solution would remove complex algorithms calculating different types of overtime hours. In this context, it is also possible to return to the concept of ‘overtime banks’, i.e. an institution allowing to choose whether hours are to be given to the employee or paid, regardless of the moment at which they occurred – i.e. on a day off or on a normal day's work.

Definition of shift work

The legal doctrine also draws attention to the non-compliance of the Polish definition of shift work resulting from Article 128(2)(1)) k. with the definition contained in EU legislation 5 .

According to the Polish regulations, shift work should be understood as a work according to a fixed working time schedule, providing for a change in the working time of individual workers after a certain number of hours, days or weeks.

It should be noted that in this definition there is no indication that this is about the successive changes (e.g. 6:00-14:00, 14:00-22:00, 22:00-6:00).

However, in the opinion of the author, it is not possible to talk about the incompatibility of Polish regulations with EU regulations.

The definition contained in the Directive clearly indicates that this is all about the organisation of work in the shift system, according to which workers change to the same jobs according to a particular timetable, including a system of follow-up.

The wording "including" in my opinion should be understood as closer to us "in particular". Besides, a different understanding of this provision would mean paralysis of many industries, such as IT. It is important to remember that shift work is one from the premises of legal work on Sundays and holidays.

The rigidity of definitions by limiting shift work only to successive changes would be, according to the author, an unjustified restriction on the possibilities allowed by the Directive. It should also be pointed out that such a proposal is included in the draft new Labour Code, which will not enter into force.

The problem of weekly rest

Consideration should also be given to modifying the rules on so-called weekly rest. According to the author, the legislator should consider, for example, its shortening to 32 hours 6 . This claim can be supported by a simple example.

The employer who functions 5 days per week (Monday – Friday) on 3 eight-hour changes (6:00-14:00, 14:00-22:00, 22:00-6:00) at the time when he orders extra work on Saturday (if, for example, on Friday, the employee worked in hours 22:00-6:00, and Monday between 14:00 a 22:00) usually reduces weekly rest from 56 to 32 hours This is a common and widespread situation, and, of course, it is incompatible with the framework.

Meanwhile, the minimum resulting from EU legislation is 24 hours Weekly rest 35 hours was established as though the legislator did not notice that its infringement is most likely in companies applying shift work, rather than in those where work is done from Monday to Friday in fixed hours.

It must be borne in mind that the condition of acceptable reduction of rest to 24 hours at shift work only applies at the moment when such work is scheduled in the schedule rather than when working in additional hours due to the usual needs of the employer. An alternative to this regulation could be to allow shorter rest to 32 hours where overtime is contracted on a day off.

Labour Day

The current definition of working days causes further interpretation problems and also allows for interpretations that have nothing to do with common sense. You can use the example of entrusting work on a day off, for example on Sunday. Let's assume that the employee generally works from Monday to Friday from 8:00 to 16:00.

The code definition also indicates that the working day is the period 24 hours from the hour on which the employee begins to work ‘according to the accepted working schedule’. In other words, the day and its limitations apply formally only to days that were planned working days.

In the example given, during a given week (this calendar) the employee falls 5 labour days, since only in 5 days were planned work. Meanwhile, the employer calls the employee to work on Sunday, per hour 16:00. This one works for an hour. 24.00.

Apart from the aspect of work on Sunday, it turns out that literally, for such work, the provisions on working hours do not apply because such Sunday was not a day of scheduled work.

Following this, if the employee starts work on Monday o 8:00 (This is the theoretical fact that between 24.00 on Sunday, a 8:00 Monday was just 8 hours It won't matter. Since the working day on Sunday did not exist (because it was not a scheduled day), why should this work be considered in the context of daily rest, the number of working hours, etc.?

In the author's opinion, there is no provision in K.P. that would allow to apply similarly restrictions on working in the working day also where work takes place on days off. If that were the case, the employer entrusting the day off would be forced to provide the employee with a minimum after such work 11 hours An uninterrupted rest.

The concept of a day off from work

The matter of defining a day off from work is one the greatest problems faced by practitioners applying labour law. This is because it is a clear decision whether the day off should be counted after the end of the working day, or whether we can start after the end of work according to the working time schedule. In practice, this is applied second The solution, although there are no shortages of voices that should be different.

In the event that the definition of a day off from work, according to which it should be between working days, is included, it will not be possible to plan full-time shift work.

Such a definition will make it impossible to plan working time taking into account the number of days off, equal to the number of Sundays, holidays and days off for the average five-day working week. It will force companies to switch to equivalent working time or to employ part-time workers. The Supreme Court has dealt with this problem several times and has proposed logical and rational solutions in this regard.

It should also be pointed out that the new proposal includes a definition of a day off from work. According to it (proposed Article 300(3)(3)) a day off from work resulting from an average of five days of working week shall be understood as a calendar day and, in the case of shift work, another 24 hours counted from the end of work by the employee.

Annual overtime limit

It should also be considered to lay down clear rules for setting the annual overtime limit. Restrictions in this respect arise only from the obligation to comply with other provisions, i.e. holiday, rest, as well as providing for an average 48-hourly overtime in the working week. Practice shows that his border lies somewhere between 376 a 416 hours for a year. Nevertheless, there are also differences in interpretation.

For example, according to the position of the Legal Commission of the Chief Labour Inspector, the maximum overtime limit may be 416 hours in the calendar year. This is due to multiplication 52 weeks per year by eight hours 7 . The Ministry of Labour considers that setting more overtime than 150, the employer should take account of the fact that staff members are entitled to leave in terms of

20 or 26 days. The maximum limit may therefore be set at 384 hours (from 52 weeks per year deducted four weeks leave, which gives 48 weeks to be multiplied by a maximum allowable number of overtime hours on average per week during the accounting period, i.e. eight).

In the case of workers who use 26-daily rest leave the maximum limit shall be 376 hours (from 52 Weeks subtract five weeks of vacation, which gives 47 weeks that multiply by eight overtime) 8 .Given the above, perhaps the legislator should set the upper limit of that number of hours.

Summary

The current labour law raises many interpretational doubts and practical problems, some of which arise from the provisions on working time. The author discussed this subject, considering plans to amend labour law. Even a partial amendment would increase the comfort of their application. Let us hope that appropriate action will be taken in the near future.

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1 Act of 26 June 1974 – The Labour Code, i.e. Journal of Laws of 2018, item 917. 2 For example, L. Pisarczyk [in:] the Labour Code. Commentary, ed. L. Florek, ed. VII, Warsaw 2017. 3 Cf. K. Hand, Overtime Work in the New Labour Code, PiZS Directive 2004/1, p. 18.

4 Look http://www.mpips.gov.pl/prawo-pracy/ustalanie-i-rozliczanie-czasu-pracy/praca-nadliczbowa/ . 5 According to Article 2(5)) Directive 2003/88 to 4 November 2003 on certain aspects of the organisation of working time (Official Journal L 299, 18 November 2003 P.

0009 – 0019) „Work in a shift system’ means any form of organisation of work in a shift system whereby workers change to the same jobs according to a particular timetable, including a system of self-following, which may be uninterrupted or interrupted and entail the need for a worker to perform work at different times during a given day or week.

6 According to Article 5 Common Directive 2003/88, Member States shall take the necessary measures to ensure that every worker is entitled within a seven-day period to a minimum, uninterrupted rest period of up to 24 hours and for daily rest in terms of 11 hours (…).

7 Position of the Legal Committee of the Chief Labour Inspector 7 December 2009 on the limit of overtime for drivers (GPP-417/501-4560-12/09/PE/RP), source: www.rp.pl. 8 Letter from the Ministry of Labour and Social Policy 13 November 2008 on the establishment of an annual overtime limit, DPR-III-079-612/TW/08, source: www.rp.pl.