Telework in Poland. Legal aspects
| Autor | Malgorzata Kurzynoga |
| Cargo del Autor | Drª. en Derecho y Profesora Ayudante de la Universidad de Lodz. Polonia |
| Páginas | 143-164 |
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In Poland, an initiative of implementation of the European Framework Agreement on Telework of 16 July 2002 was taken by social partners. The most representative national employers and trade union organisations, i.e. The Confederation of Polish Employers, the Polish Confederation of Private Employers Lewiatan, the Polish Craft Association (ZRP), the Independent and Self-Governing Trade Union Solidarnosc (NSZZ Solidarnosc), the All-Poland Alliance of Trade Unions (OPZZ) and the Trade Unions" Forum (FZZ), started negotiations in January 2005 at the Social Dialogue Roundtable for European Integration and reached a draft agreement in June 2005. This text contained almost all the provisions of the European Agreement and in some cases went beyond its requirements and into more detail on certain aspects. It committed the signatory parties to ensuring the agreement was applied through their organisations. This draft agreement was, however, never formally ratified by the statutory bodies of all the organisa-
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tions because it lacked the list of legislative amendments which the signatory parties intended to request the Government to introduce. Nevertheless, informal consultations were continued and included also the Goverment1.
In 2006, the Polish Ministry of Labour and Social Policy submitted a proposal for an Act amending the Labour Code with the aim to introduce a legal basis for telework. The draft Act, which was based on the text agreed by the social partners, was presented to the social partners in October 2006 and discussed within the Tripartite Commission for Social and Economic Affairs. The draft Act was incorporated into the Polish Labour Code in August 2007. A new Chapter IIb entitled „Employment in the form of telework" comprising 13 new articles (Article 675 to 6717) was thus inserted into Section II of the Labour Code. The new regulation came into force in October 2007. It should be noted that prior to the mentioned amendment of the Labour Code, no regulations specifically dealing with telework existed in Poland. The new legislation focuses on the specificities of telework, both as regards its introduction and the relations between an employer and a teleworker. In matters relating to telework not regulated by the new chapter, the other provisions of the Labour Code apply.
One of the main reasons for the new law was to enable reconciliation between work, private and family life. In the explanatory memorandum to the draft of the Labour Code amendment, it was stated that telework would enable an employee to reconcile work and family life. Flexible forms of work are very important for people who have family responsibilities, are disabled, combine work with study, work in more than one place or live in remote regions away from the workplace. The draft law also affects employers employing workers. The introduction of telework by employers can have an impact on reducing the costs of employing workers, especially the costs associated with the maintenance of workplace and the absenteeism of employees. Telework will also encourage a more flexible organisational structure, as well as increase efficiency and productivity of workers who make better use of time2.
It is worth noting that the Labour Code is not the only act which relates to telework. In 2014, the new regulation aimed at encouraging employment in the form of telework was inserted into the Act of 20 April 2004 on Employment Promotion and Labour Market Institutions. According to Art. 66a of that statute, an employer may receive the grant for creating telework jobs for an unemployed parent with at least one child
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under 6, returning to the labour market, or an unemployed person who takes care of a dependant, who resigned from employment or other paid work due to the necessity to take care of her/his child or dependant, provided that it happened within 3 years before they registered with the labour office as an unemployed person. The grant for creating telework jobs is granted to an employer on the basis of a contract concluded with a labour office. The grant cannot be given if an employer wants to employ their spouse, parent, sibling, biological or adopted child of the employer, or of their spouse or sibling. An employer is bound by the contract to maintain the employment for the period of 12 months on full-time basis or for the period of 18 months on part-time basis. An employer receives a grant in the amount indicated in the contract, however, it cannot exceed six-times the minimum monthly remuneration for each unemployed person. If the employer defaults on maintaining the employment for the contractual period or spends money against the contract, he/she will be obliged to return the entire grant together with the statutory interest calculated from the day of receiving it within 30 days of receiving a notice. It should be noted that a grant for creating telework jobs is not very popular.
According to the Polish Central Statistical Office, workers employed in the form of telework represent around two percent of the total number of employed persons who have the status of employee3. Since the survey was conducted among firms employing at least 9 workers, the actual number of teleworkers can be slightly higher. Moreover, it should be noted that around nine percent of working people in Poland carry out work under civil law contracts. Research conducted in 2006, based on sample of 1000 companies, indicates that 57 percent of people who carry out work outside the employer's premises, using information technology, do this job under civil law contracts i.e. Under commission contracts, contracts for a specific task or self-employment contracts4. Meanwhile, in the light of Polish law, which came into force in 2007, only persons who carry out work under an employment contract are recognized as telework-
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ers. Finally, it should be added that according to employers" organisation, some employers use the form of telework informally.
Based on employers opinion it can be argued that low rate of employment in the form of telework stems mainly from Polish regulations. Bureaucratic procedure of determining conditions of telework discourages employers from employing in the form of telework. Even a possibility of taking a grant for creating telework jobs does not encourage employers to employ in the form of telework. The Ministry of Labour and Social Policy data shows that only two persons in 2014 and six persons in 2015 took employment within the grant for creating telework jobs5. Meanwhile, the results of the Polish Agency for Enterprise Development studies, conducted in 2010, indicate that 11,2 percent of Polish employees declared an interest in telework and 36, 6 percent would like to work in a mixed system, i.e., to carry out work partly on the employer's premises and partly in the form of telework6.
Article 675 § 1of the L.C. Defines telework as work regularly performed away from the employer's premises on a regular basis, using information technologies in the meaning of the applicable provisions on services provided electronically. According to Art. 675 § 2 of the L.C., a teleworker is a person who performs work in a manner specified in art. 67 § 1 of the Labour Code and communicates the results of his work to the employer, especially by electronic means7.
Similarly, as the European Agreement, the Polish Labour Code distinguishes between the definition of telework and teleworker. However, in contrast to the approach adopted by the European social partners, Polish definitions have been formulated differently. According to Art. 2 of the European Agreement, a teleworker is any person carrying out telework as defined in this document. Meanwhile the above mentioned Art. 675 § 2of the L.C. Additionally indicates that a teleworker communicates the effect of work to an employer, especially by electronic means8. The reading of Art.675 § 2 of the L.C. Raises a
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question on a definition of telework. Most authors take the view that the definition of telework includes the elements indicated in Art. 675 § 1 of the L.C. I.e. Performing work outside the employer's premises, on a regular basis and using information and communication technologies9. However, there is a view that the additional element of the definition of telework is "presenting the effects of telework to an employer"10. It can be argued that there are two separate definitions of telework and a teleworker in the Polish Labour Code. The first argument for such an opinion is a clear seperation between telework and teleworker - these terms are defined in a single article, but in separate editorial units. The second argument is the construction of both definitions. Article 675 § 1 of the L.C. Characterizes the process of performing telework where the regular basis of performing work away from the employer's premises and communication between an employer and an employee are emphasized. Article 675 § 2 of the L.C. Defining a tel-eworker puts emphasis on presenting the results of work to an employer. It should be noted that the phrase whereby a teleworker is a person who "communicates the results of his/her work to an employer, especially by electronic means" indicates that the legislator allows to transferthe result of work also by other means.
The reading of the Art. 675 § 1 of the L.C. Indicates the following features of telework: 1) the regularity of performing work...
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