Labour Law Alert

On 4 November 2016, the Ministry of Development submitted a draft amendment to the labour law for public consultation (link: http://legislacja.rcl.gov.pl/projekt/12291757 ). The amendment aims to enable employers to conduct communications with employees and to maintain employment documentation in electronic form rather than in paper form. It also shortens the compulsory storage period of archival employee documentation.

The draft amendment, insofar as it affects the Labour Code (“LC”) involves a revision of the provisions which currently require certain acts of an employer and/or employee to be made in writing (on paper). In most cases, these provisions date back to the first version of the LC from 1974, when paper was essentially the only commonly available media that would allow such statements to be recorded as evidence. The changes are to apply to provisions that contain phrases such as “in writing” and “written”, which will be replaced by the alternative phrase “in written or electronic form”.

Examples of actions which, pursuant to the current provisions, must now be made in writing (on paper) but, following the amendment, will be permissible in electronic (digital) form include:

• the conclusion and amendment of employment contracts, notices concerning the termination or variation of remuneration conditions, and notices of the termination of an employment contract with or without a notice period (Art. 29, § 2.4, Art. 30 § 3, Art. 42 § 2, Art. 55 § 2 LC)
• issuing a work certificate (Art. 91 § 1 LC)
• notices concerning the an employee’s free time or holidays entitlements (Art. 151 (2) § 1, Art. 162, Art. 163 § 2-3, Art. 174 § 1, Art. 179 (1) § 1,4, Art. 182 (1d) § 1, Art. 186 § 7 LC)
• notices to employees concerning the transfer of a work establishment (Art. 23 (1) LC)

One important change will allow the possibility to maintain the personal files of employees in electronic form and to shorten the compulsory period for maintaining employee records from fifty to – as a rule – ten years. Employers who maintain workers' documentation in paper form will be allowed to switch to electronic form by scanning paper documents and saving them on a data carrier.

However, shortening the compulsory retention period for employee documentation will be linked with additional responsibilities for employers, in terms of documenting the earnings of employees following the termination of their employment. According to the proposed amendments of Article 97 LC and the law on the social insurance system and pensions, employers will be required to prepare and issue employees not only with certificates of employment but also with information on the amount of their remuneration. This information will be declared to the Social Insurance Fund (ZUS), together with notices concerning the deregistration of an insured person.

The abovementioned amendments also propose to:

• depart from the (somewhat archaic) present rules pursuant to which the payment of remuneration in a manner other than by tendering cash payment directly to an employee requires appropriate provisions in the collective agreement or the written consent of the relevant employee (Art. 86 § 3 LC). The amendment proposes to reverse this principle, so that the “default” method of paying wages will be by transfer to a bank account, and the tendering of cash payments will take place only upon the express request of the relevant employee.
• extend the deadlines applicable to a request to correct a work certificate, from seven to fourteen days.

The direction of the proposed amendments should be viewed positively, although it does not seem that electronic form will soon replace the classic paper format. One must remember that electronic form generally requires the use of a qualified electronic signature, which is still not a particularly common instrument on the market, especially among small and medium-sized employers.

As a side note, it is worth mentioning that the Sejm is also working on a parliamentary draft amendment to Article 264 LC (link: http://www.sejm.gov.pl/Sejm8.nsf/PrzebiegProc.xsp?nr=524), which envisages the unification and extension (to 30 days) of the time limit for challenging an employer’s acts which seek to terminate an employment relationship (i.e. notices of the termination of employment or termination without notice).

The SSW labour law team constantly monitors any proposed amendments to labour law and the current interpretation trends and jurisprudence of the labour courts.

Should you be interested in receiving more detailed information on these amendments, or an offer for a training session conducted by SSW’s labour law team, please contact our experts.

Author:

Marcin Cetnarowicz, Senior Associate, Attorney at law