Employment & labor law

Today, the Sejm will decide who will use the free day on November 12.

1 hour and 36 minutes – that was enough time for the Sejm to adopt the Act establishing November 12th, 2018, as a national holiday on the occasion of the 100th Anniversary of Regaining Independence. The manner of proceeding with the proposal of introducing an additional day off from work two weeks before the planned date has brought many entrepreneurs into a state of amazement and anxiety.

The result of such express legislation is the legislative negligence that led, against the intention of the government, to depriving the right to take advantage of an extra day off of 2 million trade employees. It should be noted that the term „holiday” is defined in the Act on limitation of trade on Sundays and holidays and on some other days, according to which „holiday” is: „days listed in art. 1 point 1 of the Act of January 18, 1951 on non-working days”. This Act contains a closed catalog of non-working days, which, obviously, does not cover 12th of November. As a consequence, the rules of work on November 12 are governed by the general provisions of the Labor Code, which, among other things, allows work to be performed on public holidays in the event of shift work, which is conducted in majority of commercial establishments. Taking into account other limitations, discussed Act, in its present form, assumes that on November 12, obligated to go to work will be employees in businesses like:

• trade,

• health care and pharmacies,

• others, if the Labor Code permits their work on holidays (e.g. in transport and communication, in hotel and catering establishments, in the case of shift work).

The draft of the Act was delivered to the Senate, where amendments were introduced to it, including the most important one, which introduces trade restrictions – in the same form that was implemented for some Sundays. Today, the Act returns to the Sejm, leaving uncertainty for entrepreneurs who still do not know whether their stores will remain open on November 12.

Apart from the chaos that has arisen as a result of this classically bad legislation, the introduction of an additional day off will have tangible consequences for business:

  • rapid and ill-conceived legislative process removes legal certainty and predictability and does not allow entrepreneurs to prepare for new regulations (in the context of preparation of work schedules, delivery schedules, logistics);
  • employees who will go to work on November 12 will have to receive a day off in the billing period covering November or pay the salary and allowance – in this last case, the cost of conversion on November 12 from the usual day to the holiday will be counted in individual companies in hundreds of thousands of zlotys;
  • employers will be forced to verify/amend their schedules – the time required to work in the accounting period covering November this year must be lowered by 8 hours, which may cause:
    • the necessity to order overtime work on other days,
    • the necessity to recalculate and compensate for unused holidays already paid to employees in the current year;
  • schools, kindergartens, nurseries, public administration offices and courts are closed, which will make it difficult to look after the children of employees for whom November 12 will be a working day and may cause delays in recognizing cases pending before the authorities;
  • this situation generates the risk of not being able to fulfill contractual obligations.

The law, after passing through parliament, will go to the president, but his spokesperson has already announced that Andrzej Duda will sign this act.

Author team leader DKP Legal Alicja Myśluk-Landowska
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