While the Polish labour law is in principle quite
restrictive, the Labour Code provides on as many as
three occasions for the possibility of suspending
certain regulations. These are of course limited and
conditional
upon
meeting
a
number
of
requirements.
The first regulation that addresses the issue is
Article 91 of the Labour Code. It allows conclusion
of an agreement suspending the application of all
or some of the provisions of labour law determining
the rights and obligations of the parties to an
employment relationship if warranted by the
employer’s financial standing. However, this does
not apply to the Labour Code and the provisions of
any other statutes and implementing regulations.
So practically speaking, the scope of the provisions
the application of which can be suspended is
limited to intra-enterprise labour law rules, i.e.
regulations and enterprise labour agreements and
collective labour agreements, as well as charters
laying down the rights and obligations of the parties
to an employment relationship within the relevant
work establishment. The agreement is concluded by
the employer and a trade union representing the
employees, and if no trade unions operate at the
employer’s, the agreement is concluded by the
employer and employee representatives appointed
under the procedure in effect at the employer’s.
The suspension of the application of the provisions
of labour law may not last longer than three years.
The employer submits the agreement to the
relevant district labour inspector. To the extent
and over the time set forth under the agreement,
the terms provided for under the suspended
regulations do not apply by operation of law.
As regards contracts of employment, there is a separate regulation that lays down similar terms,
namely Article 231a of the Labour Code, that
addresses the application of terms of employment
that are less advantageous than those provided for
under contracts of employment concluded with
such employees if warranted by the employer’s
financial standing. In this case, limitations are
imposed on the employers that are allowed to
conclude the agreement. The application of the
provision is restricted to employers who are not
covered by a collective labour agreement or employ
fewer than 20 employees. Meeting one of the above
conditions is sufficient. The other conditions are
the same as in the article discussed previously, and
so the agreement cannot be concluded for a term
of over three years, and the employer is required to
submit it to the relevant district labour inspector.
The agreement is concluded by the employer and a
trade union representing the employees, and if no
trade unions operate at the employer’s, the
agreement is concluded by the employer and
employee representatives appointed under the
procedure in effect at the employer’s.
The last provision addressing the issue under
consideration is Article 24127 of the Labour Code. It
provides for a suspension, on the grounds of the
employer’s financial standing, of the application of
an establishment or multi-establishment agreement
by its parties. This is achieved by conclusion of a
suspension agreement for a period of up to three
years. The suspension agreement is filed with the
register
of
enterprise
or
multi-enterprise
agreements, as the case may be. To the extent and
over the time laid down under the suspension
agreement the terms of employment and other acts
providing the grounds for establishing the labour
relationship set forth under the multi-enterprise
and enterprise agreement do not apply by
operation of law.
It is then worth noting that a condition repeated in
all the provisions referred to above is the
employer’s financial standing. However, it must be
borne in mind that it is up to the parties to the
agreement to decide if the condition has been met;
the Supreme Court held this issue to be beyond the
court’s remit.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary of
certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the basis of any
decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in individual cases.
The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other legal
development to the particular facts can be verified.