Changes in working time regulations: Flexible but problematic
An amendment to the Polish Labour Code effective 23 August 2013 changed the regulations concerning working time. The new rules, allowing highly flexible working arrangements, carry over solutions previously in effect under the Anti-Crisis Act.
It is a positive change under current conditions, but the act provides certain restrictions on use of the new solutions, and applying them may cause problems because of doubts in interpretation.
The amended regulations provide for the possibility of introducing 12-month settlement periods as well as “flextime,” which enables work schedules to provide for different times for starting work on the various days of the employee’s workweek, or a certain timeframe may be established during which the employee may decide when to start work. Except for flextime, which may also be used upon written request of the employee, the new solutions must be introduced in a collective labour agreement, or in agreement with the trade unions (or employee representatives if there are no trade unions in place). This means that the employer will not have complete freedom to use the new options. The regulations do not determine whether the employee council may function as employee representatives. The issue of calculation of the workday in the case of flextime is also unclear, which may affect calculation of daily overtime.
The amendment imposes on employers an obligation to prepare individual work schedules. They need not coincide with settlement periods, but may not be established for periods shorter than one month, and the employer must provide the employee with his or her schedule at least one week before it comes into effect. Unfortunately, the regulations are silent on the possibility of amending such schedules, leaving many doubts in this respect, even though in many situations (such as leave on demand) it would obviously be justified to amend the schedule. There are also doubts concerning interpretation of the term “work schedule.” Alongside the new regulations imposing on the employer a duty to establish individual work schedules for specific employees, the code retains the existing duty to establish work schedules in collective labour agreements, work rules or notices, which by their nature cover groups rather than individuals.
The amendment does, however, resolve doubts connected with employees making up for time off taken to handle personal matters during working hours. The time spent making up for such time off will not constitute overtime. This is a practical approach, and for many years has been called for as a solution that would be beneficial to both employers and employees. Previously, if an employee was given time off during working hours to handle personal matters, it was necessary to cut the employee’s pay, or, if it was agreed that the employee could make up the time, there was a risk of the employer being charged overtime.
It should be borne in mind that working time has been, and in light of the changes will continue to be, a subject of particular interest to the National Labour Inspectorate, making it particularly important to comply with the requirements in this respect under both the new regulations and unchanged regulations. The employer may be charged with a petty offence for any violations in this respect that are found by inspectors. Equally important, improper calculation of working time resulting in incorrect calculation of overtime may result in claims by the employee.
Agnieszka Lisiecka, adwokat, heads the Employment Law Practice at Wardyński & Partners
