Amendment to the Act on the Employment of Temporary Workers
The objective of the amendment is to raise the standards of temporary work, improve the terms of employment and legal security of temporary workers.
The Act amending the act on the employment of temporary workers and certain other acts of 7 April 2017 (JL.2017.962) will change the provisions governing the employment of temporary workers. The objective of the amendment is to raise the standards of temporary work, improve the terms of employment and legal security of temporary workers.
According to the amended provisions, over a period of thirty-six successive months the temporary work agency employing the temporary worker may direct this worker to perform temporary work for one user employer during a period not exceeding eighteen months in total.
Over a period of thirty-six successive months the user employer may benefit from work of the same temporary worker during a period not exceeding eighteen months in total.
It means that, regardless of whether a worker is directed to perform work by one or more agency, the user employer will not be able to benefit from work of that worker exceeding the stipulated time limits for temporary work. What is more, the same time limits will apply to temporary work performed under a civil law contract, or in a situation where the employment basis is changed alternately (temporary employment contract, civil law contract and again temporary work contract). By doing so, the legislator wanted to limit the possibility of circumventing the time limits of temporary work.
A temporary work agency will be obliged to determine for how long in total a worker who applies for a temporary work either under an employment contract or a civil law contract at the user employer, has already worked for that employer. This will be established on the basis of work certificates or other documents confirming the duration of temporary work on the basis of an employment contract and, in the case of work performed under a civil law contract, on the basis of a declaration or a certificate issued by a temporary work agency.
According to the amended regulations, a work certificate should specify data of each user employer for the benefit of which a temporary work was performed under the employment contract as well as periods of such work.
Under the new rules, a temporary work agency will be obliged to issue a certificate confirming the duration of temporary work for the given user employer to a person directed to work under a civil law contract. Such certificate should be issued on the day of termination of temporary work under a civil law contract, and if issuing of such certificate within this period is not possible, the temporary work agency, not later than within next seven days, sends or delivers the certificate of employment to the temporary worker.
A user employer will be obliged to keep records of persons who perform temporary work under employment contracts or civil law contracts that will include data regarding the date of commencement and termination of such work in a period of 36 successive months, and to store that records for duration of work and for a period of 36 months immediately following the work. The records should be kept and stored in paper or electronic form, individually for each person.
Another important change is an improved protection of pregnant workers. According to new provisions, Article 177(3) Labour Code applies to a temporary female worker directed to perform a temporary work for an aggregate period of 2 months by the given temporary work agency under an employment contract, which stipulates that the contract should be extended until the date of birth. Thus, following a childbirth, a female worker will acquire the right to a maternity benefit.
The amendment also elaborates on the provisions regarding work that a temporary worker may not be entrusted with. Worth noting is the fact that a temporary worker must not be entrusted with the same type of work as performed in a position he occupied for three months prior to the commencement of temporary work and whose employment was terminated by the user employer for reasons not attributable to the workers.
What is more, such work must not be performed in any organizational unit of a user employer located in the municipality in which the organizational unit that engaged the worker is or was located. In the event of inspection, the National Labour Inspectorate (PIP) will not assess the job position of a worker who was dismissed but the type of work entrusted to a temporary worker.
Another worth noting is the fact that the user employer has an obligation to inform in writing the temporary work agency of the remuneration for work to be entrusted to a temporary worker as well as of internal remuneration regulations binding at the given user employer. The user employer, at the request of the temporary work agency, provides the same for the agency’s inspection. Additionally, the user employer should immediately notify the temporary work agency in writing of any changes to internal remuneration regulations during the period a temporary work is performed. At the request of the agency, the user employer should provide the amended regulations for inspection.
The amendment also elaborates on the rules of calculating the remuneration for vacation leave of a temporary worker and a cash equivalent in lieu of unused part of such leave.
After the amendment, the remuneration of vacation leave is determined by:
- dividing the remuneration paid out to the temporary worker during 3 months of performing work for the same user employer under a contract or contracts of employment with the given temporary work agency, preceding the calendar month in which the worker was given time off equal to the vacation leave entitlement, by the number of hours worked during these 3 months;
- and subsequently multiplying the hourly rate of remuneration so obtained by the number of working hours falling to the time off work that the temporary worker would have worked, had he not used the vacation leave.
When determining a cash equivalent for one day of vacation leave of temporary work, the following is assumed:
- for a full-time work – one day vacation leave is equal to 8 hours;
- for a part-time work – one day vacation is equal to the number of hours calculated in proportion to the given working time basis, taking 8 hours as the basis, whereas partial hours are rounded up to full hours.
A cash equivalent for vacation leave is calculated by:
- summing up the remuneration paid out during 3 months preceding the month in which the cash equivalent is paid to the temporary worker, falling during a period of 6 calendar months preceding the month of the equivalent payout;
- and subsequently dividing the result by the number of hours worked by a temporary worker in a period referred to in item 1;
- and subsequently multiplying the hourly rate of remuneration for temporary work so obtained, by the number of vacation leave hours for which the equivalent is paid.
A temporary work agency has no obligation to pay the cash equivalent if the parties agree that the vacation leave will be used during the employment under the next contract of employment to be concluded with the same temporary work agency in order to entrust temporary work at the same user employer where such work was performed directly before termination or expiration of the preceding employment contract with that agency.
A temporary work agency provides the temporary worker, within 7 days of concluding the employment contract at the latest, information allowing the employee a direct contact with representatives of the temporary work agency including contact person’s address, telephone number and e-mail address as well as days and hours when such contact is possible. Such information should be provided in hard copy or electronically. The agency must notify the employee of any changes to the above contact details.
The former Article 24 of the Act on the Employment of Temporary Workers was repealed, which stipulated that a temporary worker’s claims are heard by the labour court with jurisdiction over the registered office of the temporary work agency that employs the worker. This means that now temporary workers will be able to choose the labour court that will hear their claims against the temporary work agency (like other employees already can).
The amendments extended also the catalogue of petty offences that may be committed by a temporary work agency or user employers. The penalties will be from PLN 1,000 to PLN 30,000 (likewise those stipulated by the Labour Code)
Worth noting is also the fact that temporary work agencies that on the date of entry into force of the act were entered into the register of employment agencies, are obliged until 31 August 2017 to file with the Provincial Governor competent for the registered office of the agency, under the sanction of criminal liability for perjury, a declaration in which an agency will state:
1) type of services it will provide, from among:
a) recruitment, search & selection, occupational guidance; or
b) temporary work;
2) that they know and comply with the requirements to conduct an employment agency dealing, respectively, with recruitment, search & selection, occupational guidance or temporary work, specified in the Act on the Promotion of Employment and Labour Market Institutions of 20 April 20004;
3) that they are aware of criminal liability for making false statements; this clause replaces a note of advice by the authority about criminal liability for perjury.
The Provincial Governor should issue to the employment agencies that submitted the statement before 31 December 2017, certificates of entry to the register of employment agencies. The certificates issued under the hitherto regulations remain valid until new certificates are issued, not later however than 31 December 2017.
According to new provisions, employment agencies which on the date of entry into force of the act were entered into the register of employment agencies, are obliged until 15 January 2018 to file with the Provincial Governor competent for the registered office of the agency, a notification of their office addresses.
Director of Personnel Department