Praca i Zabezpieczenie Społeczne (Work and Social Security) 2022/04
Category: Praca i Zabezpieczenie Społeczne
Published: Monday, 09 May 2022 09:15
Written by Editor
- Poland's migration policy from the perspective of the law regulating the area of the labor market. Non-obvious aspects and recent changes
Poland does not currently have a document that would regulate the assumptions of the national migration policy in a compact, coherent and comprehensive manner. Such a document should cover various areas of the state's functioning. An important part of it, especially in the current economic realities, should be to define the directions of legal regulations for the labor market policy in the field of employing foreigners. This does not mean, however, that Poland has never had a consolidated migration policy, or that work on the preparation of such a document is not carried out. In 2016, the document Polish migration policy - status the current and proposed actions of 2012 have been canceled. Recently, several documents with this level of impact have appeared, prepared either as part of public administration activities or grassroots initiatives. Despite the possibility of classifying them only as projects or proposals, it must be firmly acknowledged that their content reflects both social and political trends and thus constitutes an important point of reference in research into migration-related problems. The increase in the presence of foreigners on the domestic labor market is an undeniable phenomenon, and its further development is certain. For this reason, all legislative measures affecting the access of foreigners to the Polish labor market should be treated as important both from an economic and sociological point of view. They reflect the legislator's will to regulate foreigners' access to the labor market. The subject of the article is to examine the existing legal regulations regarding the access of foreigners to the Polish labor market in order to determine whether, and if so, to what extent, they constitute a normatively coherent image of the residual migration policy. Confrontation of the established legal status with possible directions of its development will allow to build de lege ferenda postulates in terms of migration policy regarding the labor market. The article focuses on those legal aspects of a labor-market focused migration policy that do not seem obvious. Additionally, examples based on changes in the law in force from January 29, 2022 are described.
- Perception of discrimination in employee assessment by employees with disabilities and their superiors
Publications on people with disabilities are mainly devoted to situations that arise at their interface with the organization. The aspects of recruitment, selection and physical adaptation to the workplace are widely discussed. Most of the research is conducted from the point of view of non-disabled people who need to adapt to and work with employees with disabilities in organizations. On the other hand, few publications are devoted to assessing the work of these employees from their own perspective. The author asks the following questions: Do employees with disabilities and their immediate superiors perceive employee evaluation in a similar way? What criteria are taken into account when assessing the performance of workers with disabilities and their non-disabled colleagues? What attitudes towards work are promoted by superiors? The article discusses the results of a questionnaire survey of employees with disabilities (92 people) and their direct superiors (50 people) employed in open labor market enterprises. They indicate some discrepancies in the perception of employee performance of people with disabilities by both surveyed groups.
- Inspections of the European Labor Authority - a small step towards building the EU labor market
The aim of the article is to present the possibility of conducting joint and agreed inspections by the European Labor Authority (ELA), which in the future may be the basis for building the EU labor market. The inspections conducted so far concerned the construction sector, agriculture and road transport. Concerted and joint inspections are an important part of ELA's activities and competences, but it is open to question how often social partners and Member States will make use of this opportunity.
- Legal status of a civil law partnership in the light of the Act on the Protection of Employee Claims in the Event of Employer's Insolvency
The aim of the article is to analyze the issue of protection of claims of employees employed in civil partnerships in the event of the employer's insolvency. This issue has been analyzed in two variants. In the first variant, it was assumed that the employer of the employees is a civil law partnership. In the second - that the collective employer are partners of a civil partnership. The author points out that the solutions of the Act on the Protection of Employee Claims in the Event of Employer Insolvency are not adapted to the structure of a civil law partnership and the related difficulties in obtaining benefits from the Guaranteed Employee Benefits Fund, which may be encountered by employees employed in these companies. As a result of the analysis, de lege ferenda conclusions were formulated that may facilitate the receipt of benefits by employees employed in civil partnerships.
- Legal aspects of the automation of the granting and payment of benefits by the Social Insurance Institution
Some of the proceedings conducted by the Social Insurance Institution during the COVID-19 pandemic underwent complete automation, which means that they were processed without the participation of a human - an authority employee. It turned out to be possible to remotely submit an application for a benefit, automatic formal verification of this application, automatic substantive evaluation of the case and its resolution, automatic granting of the benefit and its payment. An example of this is the proceedings regarding the standstill benefit provided for by the COVID-19 Act. Activities in this procedure were performed in an automated manner - without the participation of an employee of the authority. The new form of operation of a public administration body consisting in the automated settlement of cases has become a fact, despite the fact that it was not provided for in the law. The actions of the Social Insurance Institution overtook the legislator, which means that they were undertaken without a legal basis. The author points out that the automatic issuing of decisions, due to the rule of law and the need to guarantee the protection of the rights of a party to the proceedings, requires the introduction of appropriate legal regulations. Cases in the field of social insurance, incl. due to the principle of schematicism and normative formalism, they belong to the category of matters that are best subject to the actions of algorithms, and thus to automated resolution.
- The importance of the principle of summing up insurance periods and calculating the amount of insurance benefits in the light of the latest jurisprudence of the CJEU
The author presents the principles of summing up periods of insurance, residence or employment as well as proportional determination of completed insurance periods in EU Member States. They are absolutely applicable in all situations related to the entitlement to social security benefits by persons moving within the European Union. The application of these principles is illustrated on the example of acquiring the right to an old-age pension. In the latest case C-866/19 SC v ZUS I Branch in Warsaw, the CJEU ruled that the application of the above principle cannot be limited to the case analyzed in another "Polish" judgment issued in an earlier, similar case C-440/09. A potential conflict of interpretation applied by social security courts in the Republic of Poland was resolved by the judgment of the CJEU of October 21, 2021 in case C-866/19.
- Act on collective redundancies - the obligation to return the severance pay under Art. 8 sec. 1 in relation to individual dismissals - the latest jurisprudence
The author presents the jurisprudence of the Supreme Court relating to the cataloging of situations in which the severance pay provided for in Art. 8 of the Act on collective redundancies, paid to a dismissed employee becomes an undue benefit. He pays special attention to the statements of the Supreme Court referring to individual dismissals under the act (Article 10 of the Act of March 13, 2003).
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