Revolution in seniority: leave, pensions and other entitlements will include mandate contracts, specific work contracts, commercial activity, etc.

The Ministry of Family, Labor and Social Policy has begun preliminary analytical work on the regulation of the issue of seniority. The changes are intended to include sole proprietorship and employment under civil law contracts.
The Ministry of Family, Labor and Social Policy wants to add this provision to the Labor Code. The government is scheduled to adopt the draft amendment and submit it to the House of Representatives in the third quarter of 2024.

Practical experience: The revolution will cover all ways of making money.

As Robert Lisicki, Director of the Labor Department of Liwatan, commented, the current situation is not suitable for employees who, before establishing an employment relationship, carried out commercial activity in the indicated forms or performed work under civil law contracts, were cooperating persons or members of agricultural production cooperatives and agricultural cooperatives.
However, controversy arises about the automatic equality between work performed within the framework of an employment relationship and professional activity provided within the framework of other legal relationships.

– Introducing changes in the form of partial equality of rights of employees and persons previously employed under civil law contracts may lead to these contracts being recognised as equivalent to an employment relationship, regardless of the subject of cooperation and the manner of its implementation – says Robert Lisicki, Director of the Labour Department at the Leviathan Union.
The specific nature of the work performed under the employment relationship is the basis for the separation in labor law. For the purposes of exercising rights under an employment relationship, tasks performed, for example, as an entrepreneur, cannot always be equated with work under an employment relationship in a particular position.
Furthermore, the draft law raises concerns about the inclusion of documented periods of gainful activity other than work abroad as part of the length of service. How do we understand the concept of gainful activity and how can it be documented, especially in countries outside the EU?
– The amendment to the law will increase the number of cases when employees, after longer periods, up to several years, submit documents affecting the acquisition of certain rights. In such cases, they count on the granting of certain rights in previous years. The employee’s rights should be fixed from the date of submission to the employer of documents confirming previous periods of work, for example, the right to increase annual leave – the expert says.

The service period will include civil contracts and other earning periods: supported by employees

The position of the workers themselves is completely different: justice will be done. It is absolutely unjustified to recognize as length of service only periods of work under an employment contract regulated by the Labor Code. Both persons running a sole proprietorship and those who earn money on the basis of civil contracts are subject to mandatory ZUS contributions and taxes on almost the same terms as code employees.
Unlike them, they do not enjoy various privileges, such as vacation leave or protection from working beyond the norm, but seniority cannot be considered a privilege; it is something that is acquired by contributing to the budget and contributing to the costs of maintaining the state. So far – objectively speaking – the seniority determination procedures have been discriminatory, and in fact, it would be easy to prove that they are in conflict with the Constitution.
In response to the petition regarding the inclusion of sole proprietorship in the length of service, the Ministry of Family, Labor and Social Policy has prepared extensive clarifications. What do they mean?

New Seniority: What About Business Management Periods?

As the Ministry of Labor explained, referring to the proposal to change the regulation on the inclusion of periods of operation of a sole proprietorship within the length of service, which determines the employee’s rights arising from the employment relationship, the Ministry of Family, Labor and Social Policy responds that this issue requires in-depth analysis and balancing of the interests of the various economic participants. Including employers, employees, and people who run businesses.
Therefore, when considering the validity of the above-mentioned legal changes, the Ministry of Labor asked other ministries to take a position.
The positions received from the ministries under consultation show that most of them support the general direction proposed to change the regulations relating to including the period of operation of a single establishment within the period of service. Employees working under an employment relationship.
At the same time, they stipulate that possible legal changes in this area cannot be automatic and must be preceded, separately, in relation to each legal act to be amended, by an in-depth analysis taking into account the benefits and consequences for both employees and employers, in particular entrepreneurs.

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Labor Law on Seniority 2024

The concept of “seniority” is not defined in the generally applicable provisions of the Labor Code. In practice It is used to determine employee rights and benefits, the receipt or amount of which depends on the period of employment.
However, there is no general rule for the acquisition of the right to all employee benefits and rights. However, there are regulations that specify the rules for determining the period of employment that determines the acquisition or retention of the right to certain employee benefits and entitlements; however, these rules are set out separately for each of them in the provisions relating to a particular employee benefit or entitlement.

Therefore, these rules can be regulated separately for different categories of employees.
Thus, the right to some benefits that are not universal in nature, such as a training allowance or a jubilee award, is regulated not by the provisions of the Labor Code, but by the provisions applicable to a specific group of employees (such as the Law on the Police – for officers of this formation, the Law on the Civil Service – for employees of the government administration, where all previous periods of employment and other documented periods are included in the periods of work entitled to the long-service allowance, If they are included, under separate regulations, in the period of work on which the employees’ rights depend.

The current rule is that the period of work on which the employee’s rights depend includes only periods of work, i.e. work performed under an employment relationship, i.e. on the basis of an employment contract, appointment, appointment, election, or cooperative. Employment contract, according to Art. 2 of the Labor Code.
Other periods that are not working periods are also included in the period required to acquire employee rights, but only if this results from specific regulations.

However, business management periods are not included in the employment period within the meaning of the generally applicable provisions of the Labor Code.
An employment relationship, according to the Labor Law, is a legal relationship in which an employee is obliged to perform work of a certain type, personally and on a continuous and repetitive basis, for the benefit of the employer and under his supervision, in a place and for a period determined by the employer, and the employer is obliged to employ the worker for a wage. Results from Art. 22 § 1 of the Labor Code.

The Ministry of Labor explains that if the draft law is prepared, in accordance with the applicable legislative process, the draft will be the subject of joint ministerial arrangements, social consultations and meetings of relevant bodies, including the Council of Ministers. It will then be sent to the Sejm of the Republic of Poland.
At the same time, at the current stage of work, it is not possible to determine the date of entry into force of the new regulations.