On 1 June 2017, the Act of 7 April 2017 on the amendment of the Act on the Employment of Temporary Employees and some other acts came into force. (Dz.U. [Journal of Laws] of 2017, item 962).
Purpose of the bill
The aim of the Act is, in principle, to improve the situation of temporary workers and to reduce the abuse of this form of employment as a substitute for employment in the code of conduct, which is also inextricably linked to increased burdens on employers. Changes to the law focus on a few important issues.
Limiting the possibility of using the same temporary employee
The first important change is the significant reduction in the possibility of using the same temporary employee - From 1 June 2017, the same employer will be able to use the same temporary employee for a period of up to 18 months in a period of 36 consecutive months. It is intended to limit the staff rotation between several temporary employment agencies, which was until now, often practised. Responsibility for the breach of this prohibition is in principle borne by both the agency and the employer-user.
Aspects of civil law contracts
In the new legislation, the issue of civil law agreements has been regulated more broadly than before. Not only has information obligations been developed, but also the status of those who have entered into such agreements has been strengthened. According to the new art. 25a of the Act, a number of provisions of the Act apply to persons assigned to perform temporary work under civil law contracts (this is a broader catalog than in the previous legislation). In particular, the following points are of importance:
- Prohibition on the establishment between the temporary employment agency and the employer-user for non-employment of persons providing services on the basis of the principle of civil law contracts by the employer after completion of temporary work (Article 12 of the Act).
- A time limitation in the management and use of persons who have entered into civil law contracts, analogously to 18 months during the subsequent 36 months (Article 20.1 of the Act).
Tools for controlling temporary work periods
The law also introduced tools to control the periods of custody of temporary employment. According to Art. 11b of the amended act, the person to be entrusted with performing temporary work under a contract of employment or a civil law contract shall submit to the temporary employment agency the following: work certificates or other documents proving the periods of temporary work for the employer-user based on the employment contract and a written statement or certificates proving the periods of temporary work for the employer-user under the civil law agreement, 36 months prior to the anticipated start date of temporary work for this employer.
Temporary employment agencies, in accordance with Art. 18a paragraph 1a, on the other hand, 1a of the Act will have to verify formulas of work certificates issued to employees - they will have to indicate in the work certificates information on each employer-user for which temporary work was performed under the employment contract, and periods of doing such work.
New information and documentation obligations
What is very important from the temporary employment agency point of view is the obligation to certify the period of temporary work for the employer-user for the person who is assigned to perform temporary work under the civil law agreement.
Among the new information obligations of the employer-user there is also a duty to inform the agency that there are no obstacles to the employment of temporary workers related to previous dismissals for reasons not attributable to employees. What is important, according to the amended art. 8 sec. 3 of the Act, this ban no longer refers only to a specific job position but the type of work (which is a broader term).
Another obligation of the employer-user is to keep records of temporary workers on the basis of a contract of employment and civil law contracts, including information on the starting date and the date of termination of such work for a period of 36 consecutive months. The employer-user also has a duty to keep records for the duration of the record and a 36-month period immediately after. Records are kept and stored in paper or electronic form, separately for each person.
Other information obligations have been developed - including the temporary employment agency’s right to request for internal remuneration regulations of the employer-user. According to Art. 9a of the amended Act, the employer-user shall immediately inform the temporary employment agency in writing of the change in internal remuneration regulations. The Act therefore introduces more transparency in remuneration conditions and tools for temporary employment agencies, which, according to the law, may require that the remuneration regulations be provided to them.
Protection of pregnant workers
An important change is also to ensure greater protection for pregnant workers. According to the amended art. 13 sec. 3 of the amended Act, to temporary employees, having a total of at least 2 months of temporary employment by a given temporary employment agency under the employment contract, 177 § 3 of the Labor Code applies. This means that a fixed-term employment contract or a probationary period of more than one month, which would be terminated after the third month of pregnancy, is extended until the day of childbirth. This is a mechanism to strengthen the protection of pregnant workers.
Enlarged catalog of offenses
The list of offenses has been significantly expanded (each of which is subject to a fine of between 1,000 PLN and 30,000 PLN). Among the most important offenses that a temporary employment agency may commit and also the employer-user (the person acting on its behalf) are:
- The substitution of employees involved in the strike with temporary employees,
- Violation of the ban on the employment of workers released within the last 3 months from the establishment for reasons not involving employees,
- Exceeding the permissible periods for temporary work entrusted to the temporary employee.
The employer-user may be also penalized for not keeping a record of the temporary worker's working time in the scope and under the rules applicable to employees and for preventing the temporary employee from use of holiday leave in accordance with the provisions of the Act.