Legislative works on the draft changing regulations pertaining to fixed-term contracts have been underway at the Ministry of Labour and Social Policy for a couple of months. It caused many doubts already at the consultation stage which is why the ministry wants to elaborate balanced solutions acceptable for both employers and unions before the document is sent to the Council of Ministers. Surely, it will not be an easy task considering current events and impending election.
The main point of contention in the amendment to the Labour Code is the maximum duration of fixed-term contracts. The Ministry proposes a limit for both number and length of such contracts. It will be possible to sign 3 fixed-term for o longer than 33 months – after that the contract would change into a no fixed-term one. However, such a solution may prove unfavourable for employees, as it can cause the so-called avoidance of labour law and increased popularity of non- employment contracts. For this reason, employers suggest a higher limit – 48 months.
Another problem is the catalog of conditions for signing contract for longer than 33 months/ The current version of the draft (dated December 16th) includes the following phrase: “if signing the contract serves a real need of temporary character and is appropriate and necessary in this regard”. This is clearly an imprecise formulation and can be interpreted in a variety of ways. What is more, the draft involves authorizing labour inspectors to check whether a non fixed-term contract was signed if the above mentioned condition were not met. This would effectively give the Chief Labour Inspectorate the right to question employers’ needs with regards to employment policy and assess the necessity of signing a contract on specific terms in the course of a court procedure. Moreover, introducing such solutions could contribute to further delays in the work of labour courts.
Transition regulation included in the draft are also a cause for concern. Applying new rules to contracts currently in force may have negative consequences for employees. There is a risk that employers will terminate contracts. This risk may be restricted by the proposition included in the draft according to which work experience from before the amendment will not be taken into consideration when calculating notice periods for contracts terminated when the new regulations are in force. However, when elaborating new regulations lawmakers should keep the lex retro non agit principle in mind, as well as the principles of citizens’ trust in the state and its laws.
Clearly, there are many problems. Will the draft elaborated by the Ministry of Labour and Social Policy prove to be a golden measure? Time will tell – the draft will most likely get to Sejm only in April. Changes concern regulations with an impact on employers and millions of employees, so consideration is most definitely advised. One can only hope that new regulations truly contribute to stabilizing employment based on fixed-term contracts (such is their objective), as the effects may be
opposite should the amendment be to restrictive.
Wioletta Żukowska, labour law expert of Employers of Poland