Work schedules: A new obligation of employers
The recent amendment of the Polish Labour Code introduced a requirement for employers to prepare work schedules for all employees. The new rules raise new doubts surrounding organisation of working time without eliminating the existing doubts.
The Act of 12 July 2013 Amending the Labour Code and the Trade Unions Act has introduced new regulations into the Labour Code concerning work schedules. Essentially, the amendment imposes an obligation on employers to create individual work schedules for each employee, regardless of the system of working time used or the length of the working time calculation period. But the duty to establish work schedules is not absolute. The amendment provides for instances in which the employer is not required to prepare work schedules. The employer will thus be released from this obligation where provisions of labour law or conditions individually agreed with the employee make it possible to determine clearly the days and time of the employee’s work, and also when the employee has requested flextime or performs work under a task-based system.
Individual work schedules, which are now referred to in Labour Code Art. 129 §3, have been in common use, but were not previously covered by the regulations. This generated many doubts, for example concerning the periods for which such schedules should be established, how much advance notice of the schedule had to be given to the employee, and whether and how they could be amended.
Under the new regulations, a work schedule may be established for a period shorter than the working time calculation period, but must cover at least one month. The employer is now required to provide the employee with his or her work schedule at least one week before beginning work in the period for which the schedule is established. It is not clear, however, whether it is permissible to change individual work schedules along the way. The position taken in the past by the National Labour Inspectorate was that work schedules could be changed only in situations set forth in the sources of labour law in force at the workplace (such as long absence or illness on the part of the employee). But this position was presented under the previous regulations, which did not address at all the issue of establishing individual work schedules. The new regulations do not provide for any exceptions with respect to the method of establishing work schedules for specific employees. In particular, the amendment is silent on the possibility of adjusting such schedules, which generates many doubts. Nonetheless, if it were impossible to amend individual work schedules, it could paralyse the organisation of work for many employers. Assuming it is possible to change individual work schedules, it is also unclear whether the employer must communicate the change to the employee at least 7 days in advance (the minimum notice when introducing the schedule), or also ad hoc, depending on the circumstances. The internal rules in force at the workplace may play an important role in this respect.
While introducing regulations on establishment of individual work schedules, the law did not release employers from the existing duty under Labour Code Art. 150 §1 to establish work schedules in collective labour agreements, work rules or notices. The understanding of the concept of work schedules under Art. 150 has not been entirely clear, but unlike work schedules established individually for specific employees, the schedules established at the workplace level under Art. 150 should be regarded as collective in nature. This raises significant doubts in interpretation.
Agnieszka Godusławska, Employment Law Practice, Wardyński & Partners
