Supreme Court resolution – employers have no right to demand a list of unionized employees

The resolution of November 21, 2012 (III PZP 6/12) adopted by seven judges of the Supreme Court provides that trade union's refusal to provide information on all employees protected by it does not release the employer from the duty to cooperate with such union in individual matters of such employees, if such information has been requested by the employer without a reasonable need.

The resolution was adopted as a result of an inquiry of the Chief Justice of the Supreme Court addressed in relation to the existing case law discrepancies. A written rationale of the resolution has not been made public to date, however according to the oral justification thereof reported by the press, an employer may not require a trade union to provide a list of all the employees represented by it, but may only request information about union membership with respect to particular employees in reference to whom the employer is going to take some actions, e.g. terminate their employment agreements. The reason for it is that employers as the personal data administrators are obligated to make every effort in order to collect such data in compliance with the purpose and within the scope as specifically set out in the provisions of the law.

The way the resolution of the seven Supreme Court judges resolves the discrepancies existing to date in the case law is unambiguously unfavorable for employers.

Supreme Court resolution – reinstatement claim of revoked management board member

In its resolution III PZP 3/12 of May 16, 2012 the Supreme Court examined the relation between the provisions of the Commercial Companies Code concerning revocation of a member of a management board of a capital company and the unfair or illegal dismissal claims such manager might enjoy under the labor law. According to the Supreme Court, the provisions concerning revocation of a member of the management board may not have any impact on the employee's rights arising out of the provisions of the labor law. In particular, the revoked management board member may demand reinstatement in work on the previous terms and conditions. Indeed, the Supreme Court states that such a claim is inadvisable, since the management board member's mandate expires and thus he/she may not fulfill their employment obligations and consequently, courts should award damages in such cases (this does not pertain to situations where the special protection of continuity of employment is applicable). However one cannot argue, as it was earlier pointed out by the Supreme Court in judgment of May 6, 2009 (II PK 285/08), that the Commercial Companies Code takes precedence over the provisions of the Labor Code.

Supreme Court judgment – maternity benefit

In its judgment of September 6, 2012 (II UK 36/12) the Supreme Court provides that in order to calculate maternity benefit one should apply the lowest sickness insurance assessment basis, regardless of the amount declared by the insured person, if the right to such benefit arises in the first calendar month of the voluntary sickness insurance with respect to carrying out business activities, which insurance has not been preceded by any other insurance.

Thereby, if the insured person becomes eligible for the maternity allowance before the lapse of the first full month of the voluntary sickness insurance, the basis of her maternity allowance is not the declared amount but 30% of the minimum remuneration, or 60 % of the projected average monthly remuneration depending on whether she files for the insurance for the first time. The direction of the changes shown by the Supreme Court is reflected in the government draft of the act of September 18, 2012 amending the act on the social security system and some other acts.

Draft amendment to the Labor Code – new parental leaves

Works have begun on the government's draft bill introducing amendments to the provisions regarding parental entitlements. The basic change proposed in the draft is the introduction of paid parental leave long up to 26 weeks to be used directly after the additional maternity leave has been used. According to the draft, the parental leave is to be granted once or to be divided into not more than three parts, not shorter than 8 weeks each, upon a written application of the employee-parent (it is proposed that it may be used by father and mother on equal terms), filed at least 14 days before the planned delivery date. The aggregate length of the maternity leave, the additional maternity leave and the parental leave may amount up to 52 weeks. The draft introduces material amendments to the rules of calculation of benefits for the period of parenthood-related leaves.

Contemplated extension of childcare leave

The government draft bill concerning amendments to the Labor Code has gone through the first reading at the Polish Parliament. According to the draft regulation the childcare leave is to be extended by 1 month (i.e. up to 37 months), while each parent is to enjoy the right to 1 month of the childcare leave which cannot devolve to the other parent. The childcare leave may be divided into 5 parts (currently into 4 parts), and the period, which both parents can spend simultaneously on childcare leave, will be extended from 3 to 4 months. Pursuant to the pertinent EU Directive, the proposed changes should be introduced by March 8, 2013.

Contemplated removal of the limitation of the basis of calculation of social security contributions

The Polish Parliament is currently working on its members' draft act amending the act on the social security system and the act on old age and disability pensions from the Social Security Fund.

The draft provides for lifting of the cap on the assessment basis of retirement and disability insurance (at present, the annual contribution assessment basis may not exceed the thirtyfold of the projected average monthly remuneration), and consequently, the abolition of the upper limit of such contributions. At the same time, the draft does not provide for the corresponding abolition of the current limitation of the old age or disability pension assessment basis index amounting to 250 % of the average remuneration in a given year.

In practical terms it means that persons who receive high salaries (and their employers) would pay old age and disability pension contributions with respect to the entire remuneration, not limited by any cap, while they would not receive old age (or disability) pension corresponding to part of the contributions paid, since the old age (disability) pension assessment basis could not exceed the 250% cap on the average remuneration in a given year. The aforesaid wording of the draft is controversial and has been criticized by employers' organizations as well as the Supreme Court.

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