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This study investigates the new definition of violence and harassment included in ILO Convention No. 190 and selected measures for its elimination provided in the convention act. These proposals have been compared with the currently binding Polish regulations. The aim of the study is to conduct a comparison and to show how laconic and oftentimes imprecise – in relation to the demands formulated in the convention Polish regulations remain in many respects. The paper will highlight the most intriguing solutions provided for by the convention, yet not currently implemented in the Polish legal system.
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The aim of the study is to examine the applicable legal regulations on mobbing in relation to the evolving forms provision of work and other pathological phenomena not classified as mobbing. The starting point for the considerations is the definition of mobbing contained in the applicable provisions of labor law. Personal rights were also subjected to a detailed analysis, the violation of which may be the basis for pathological behavior not classified as mobbing.
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The legal definition of the term employer is contained in the Labour Code. The Social Services Act defines the term as a ‘person who manages the activity of providing the service’. This is the person appointed by the social service provider to render management services. This is also the person who is the employer of the staff carrying out the activity of providing the service. Under this definition the person in charge of the social service, in his/her personal capacity, shall be the employer of the employees. The quoted norm poses a number of practical problems relating to the constitution of a proper defendant in legal employment disputes.
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An issue of the economic effectiveness of law is not often analysed. It can be caused by the elaborateness and multivocality of the term “effectiveness”. The incompatibility in the interpretation of the category of effectiveness can result from adopting different research perspectives. The lack of consensus on how to deal with the ambiguity of the term “effectiveness” creates a theoretical and cognitive gap that influences difficulties, including designing measurement systems. The research perspective of the economic analysis of law may be relevant to the consideration and analysis of atypical forms of employment carry out to determine the effectiveness of individual solutions.
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Currently, civilisation and the development of the modern world have generated new, extremely dynamic phenomena (which are not, however, the consequence of some political and legal idea), which will force the participants to use various solutions, as well as technological tools closely related to the field of mathematics. This phenomenon is often referred to as digitalisation, which in the narrow sense of the term is equated with digitisation, otherwise known as the digital world. This results in the Employer becoming an entity to which it is legitimate to adopt the terminology – that it is an IT establishment. Nowadays, one of the elementary conditions for proper functioning of such an entity are certain obligations imposed by ius cogens regulations, the implementation of which requires the application of permanent processes related to the acquisition, collection, processing, analysis, archiving, transmission, dissemination, deletion and management of information (data) in all social and economic areas related to labour relations. The consequence of this phenomenon is that the IT establishment is not an idea, but should be understood exclusively as an economic, social and legal phenomenon. As a commonality of the fate of the employer and the employees (or rather the employed, since in the workplace not only the employees provide de facto work) and the social private actors (unions) which are actively involved in a wide range of processes concerning social labour relations To this end, using IT tools and making appropriate numerical (mathematical) calculations, they make intensive use of all sets of data (information), not only in the strictly labour-related field, but also in the social, social economic, financial (tax), health, sport or even cultural and religious areas.
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The author explains what the defects were in the legal construction of fixed-term employment contracts in Polish labour law. With the entry into force of the Labour Code in 1975, the principle was adopted that contracts of this type could be terminated earlier if the content of the contract provided for this possibility. This solution, after 1989, contributed to huge pathologies on the labour market related to the abuse of fixed-term contracts by employers. The legislator has repeatedly attempted to rectify this situation by, inter alia, introducing restrictions on the use of these contracts. These attempts were mostly ineffective, and the reason for the popularity of fixed-termcontracts was that they could be unilaterally terminated. For incomprehensible reasons, in 2016 the legislator extended the possibility of such terminations and thus completely distorted the essence of the contracts in question.
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Labor law reform in Brazil has fundamentally changed the archetype of labor law, both in terms of substantive law and procedural law, from an individual and collective perspective. The new regulations have introduced the normative regulation of outsourcing in Brazil, which was previously absent. The issue identified in the following article is: labor outsourcing resulting from the Labor Reform can be considered a Brazilian legal advance or failure. Practice shows that Law No. 13,429 lowered the level of labor rights and allowing outsourcing in the main business of the borrowing company, without equalizing rights between the employees.
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The aim of the article is to present the uniqueness of platform work as an element of the sharing economy. Platform work is one of the unusual forms of employment that is developing dynamically on the labour market as a result of progressing computerization and the emergence of modern technologies. Its essence is to connect (match) customers with service providers via mobile applications and online platforms. It is usually associated with on-demand passenger transport and food delivery. In fact, it covers a wide variety of specialized assignments. The complexity of platform work is evidenced by the difficulties in defining its conceptual scope and giving the performers the appropriate legal status. The role of algorithms is unclear. As a result, it does not seem possible to regulate this form in an unambiguous, precise and universal manner, which is confirmed by the long-lasting EU negotiations.
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Raising popularity of atypical forms of employment begs the question of applying standard regulations to them, such as the protection of worker’s rights, job security. One of the aspects is the use of regulations of mobbing and whether it can be used when it comes to other forms of employment. Character of this institution allows it to be used only in typical form of employment, which does not deprive others of the protection of their rights. It is possible to assert claims based violation on values protected by law, such as dignity or health. The legal definition of mobbing can be used as help to understand the situation of the individual and recognise the violation of one’s rights.
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Narrowing the phenomenon of atypical employment relations to civil law employment, the author poses the following research hypotheses, which will be analyzed in this text: “Directive (EU) 2019/1937 of the European Parliament and of the Council of October 23, 2019 on the protection of whistleblowers does not distinguish between the rights of employees and those providing paid work on a basis other than an employment contract” and “The axiology, as well as the laws that are the source of whistleblowing and the Directive itself guarantee the right to report violations to allpersons, regardless of the basis of employment.” Equally importantly, despite the introduction of analogous mechanisms at the substantive legal level, neither the Directive nor the Code of Civil Procedure guarantees non-employees preferential rights of redress compared to employees’ procedural rights. The study’s analysis shows that all of the above research hypotheses are true.
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Given the everchanging nature of today’s reality as well as the inevitable evolution of the understanding of a typical relationship of employment, we continue to search for new solutions, that would enable a paradigm shift. The primary means of rendering it more flexible is the gradual decrease in adopting the model of work in strict subordination. In the following article we raise the question whether there exist a possibility of enlargement of the scope of application of certain labor law institutions to individuals performing work on a basis different than employment contract.
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Specific challenges of the labour market in the recent years favor the evolution of new forms of performance and organization of work, also known as atypical employment. Undoubtedly, the new solutions, together with the progressing robotization and algorithmization, currently constitute oneof the most important challenges for the labour market as their emergence provides for a number of opportunities and threats, for both workers and employers. It should be emphasized that non-typical employment contributes to making the labour market and new forms of professional activity more attractive, but on the other hand, it hinders respecting and protection of workers’ rights. Therefore, besides analyzing the pros and cons of new forms of working, it is necessary to raise the awareness of the fact that the lack of appropriate legislation not only limits the protection of the stakeholders but also prevents the activities of inspection authorities, including the National Labour Inspectorate. The importance of the issue is highlighted by the fact that the topic constitutes a challenge not only for Poland but also other EU Member States and other countries around the world. In this context, particular emphasis should be placed on the proposed Directive of the European Parliament and of the Council on improving working conditions in platform work, which could serve as the basis for discussions on national-level solutions.
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The introduction of a minimum hourly rate for individuals working under civil law contracts represented a significant milestone in improving the legal protection standards for this group of employees. As part of the change, the State Labour Inspectorate has been granted the authority to monitor this issue and take legal action by issuing an enforcement notice. Rather interesting, this solution warrants analysis in comparison with another measure employed by state labour inspectors in the form of a payment order. Comparing these legal measures is justified due to their similar purpose of guaranteeing payment of wages to remunerated employees.
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In the presented text, the author analyzes the possibility of attributing to the organizer of a franchise network liability for violations of labor rights against employees employed by a network participant based on atypical forms of employment. In principle, the franchise network is independent network participants as separate legal entities, thus they should be treated as independent employers. Nevertheless, this balance can be disturbed by the network organizer, which, within the framework of its contractual powers, can exercise control over the implementation of the franchise package, which consequently manifests itself as sovereign interference in the independent decisions of employer- participants of the network. This is important in the perspective of the increasingly popular atypical forms of employment, under which the application of flexible employment policies to the strategic resources of the company can lead not only to the “flight” of professionals of the organization to other employers, but also to other risks associated with the undertaking of competitive activities against the employer by people who, while occupying an important position in the network participant, are employed on a discretionary basis and do not identify with the implementation of its objectives. The purpose of this article is to analyze the admissibility of attributing to the organizer of the network the characteristics of an employer, as well as the possibility of attributing to it liability for damage caused to employees.
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The chapter concerns the processing of personal data in connection with self-employment and in connection with cooperation between a self-employed person and another entrepreneur. In this chapter, we consider what roles a self-employed person can assume from the point of view of the GDPR. Much space is devoted to the self-employed person as a processor.
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There is no doubt when determining what type of social insurance a given person is subject to, if we are dealing with employment that is the only source of income, i.e. employment under an employment contract, running one’s own business, performing work on the basis of a mandate contract, etc. The problem arises when a given person receives income from several different sources at the same time, e.g. he or she is also an employee employed under an employment contract and runs his or her own business, or is a retiree, works and additionally runs a business. Convergence of insurance rights occurs when one person simultaneously meets the condition for being covered by the obligation to insure under at least two titles. Insured persons whose basis for calculating retirement and disability insurance contributions due to employment, membership in a cooperative, service, receiving training benefits, social benefits per month is lower than the minimum remuneration for work – are also subject to compulsory social insurance for other reasons – art. 9 section 1a of the act on social insurance. The basis for calculating contributions is not subject to conversion if the employment contract is performed on a part-time basis, with the remuneration set at an amount lower than the minimum wage. A person employed by several different employers under different employment contracts is obligatorily subject to all social insurance and health insurance for the performance of each of these contracts. The issues mentioned in this study become particularly important in the context of possible violations of the law related to the use of atypical forms of employment. Incidentally, this is the main topic of my monograph. Problems also arise when there is an incorrect determination of intentional or unintentional coincidence of titles in the context of social insurance, or when the obligation relationship is constructed in such a way as to artificially generate convergence of titles to insurance. This is an extremely important issue that has potential legal consequences and consequences for participants of the social security system. This reflection raises questions about the need for precise legal regulation and monitoring of such situations in order to prevent abuses and violations of the law in the area of employment and social security. Research and analysis in this area are crucial to developing a more effective and adequate legal framework that can adapt to changing labor market realities and ensure fairness and transparency in social security systems, social protection.
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This article presents the principles for performing the control of social contribution payers with regard to work for one’s own employer. The issue concerning work for one’s own employer is regulated in Article 8 item 2a of the Social Insurance System Act. The purpose of this regulation was to protect the rights of insured persons employed on the basis of an employment relationship and a civil law contract, for whom social security contributions may potentially not be paid on the entire income received. The article includes the origins of the legal regulation, the concept of work for one’s own employer and its interpretation. It would seem that the well-established line of court case law clearly indicating the obligation to pay social contributions for an employee performing the work for his own employer under a civil law contract should sufficiently clarify the application principles of this regulation. Therefore, this means that the reason for irregularities in this area may be the search for savings within the range of staff employment costs, which are, amongst other things, social security contributions in addition to salary costs and taxes. However, flexibility in forms of employment can not be used to circumvent the applicable regulations of the law. In this study, the arguments of social security contribution payers against the application of Article 8 item 2a of the Act on the Social Insurance System are presented, as well as the characteristics and subject matter scope of the control in field of work for labour one’s own employer, including the rights of social insurance inspectors to verify the correctness of the fulfillment of social insurance obligations by the payers of social contributions. In the article, the implications and results of a finding of performing work for one’s own employer in terms of the principles for determining the basis for social contributions are discussed. This article also addresses the judicial decisions that have been made in such law cases, as well as the conclusions and proposed solutions emerging in the associated literature.
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The author compares criminal law norms (Article 218 of the Criminal Code) with the provisions of labor law (Articles 2 and 22 of the Labor Code) introduced and used by the legislator to prevent the use of fictitious forms of employment. Primacy should be given to the provisions of the latter branch of law. The legal and criminal norms protect only the signs of an employee misconduct, and not theemployees fictitiously positioned by employing persons and entities as persons employed on the basis of and under civil law contracts. We are dealing not with effective practice but with abstraction. He believes that the principles formulated in the aforementioned provisions of the Code of Civil Procedure are not automatically and effectively implemented.
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Rozdział przedstawia aktualny stan ochrony przewidzianej (zapewnianej) w Kodeksie karnym (w rozdziale XXVIII) dla pracowników – wraz z nowym, kontrowersyjnym przepisem art. 218a k.k., penalizującym de facto samo wykonywanie pracy w niektóre dni wyznaczone przez ustawodawcę. W opracowaniu wskazano również na kwestię procedowania w procesie karnym w przedmiocie takich przestępstw.
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