Employee’s work on the grounds of Polish Copyright Law

Motivation: Employees’ works are crucial in practice. The validity and need for discussions on the rights of the employer to the employee’s work is justified by the increasing concern for the observance of copyright, and also for employee–employer relations. By entering into an employment relationship, both parties must be aware of their rights and obligations. Aim: This article presents the issue of copyright status of an employee’s work regulated in the Article 12 and 13 of the Act on copyright and related rights. The considerations focus on the legal relationship between the employer and the employee-author, and the issue of acquiring author’s economic rights to the work created by the employee within the employment relationship. The article is based on the analysis of legal regulations and judicial decisions. Results: Regulating rights to the work created by the employee is dependent on the will of the parties. It is only the absence of contractual terms in this respect that results in a reference to the statutory provisions, which define the rules of transferring copyright for the employee’s work to the employer. Article 12 of the Act on copyright and related rights specifies grounds for secondary acquisition of copyright by the employer. One should remember that this regulation concerns solely author’s economic rights because author’s moral rights, which due to their nature are non-transferable, remain with the author or employee.

Mapping domestic workers’ organizing globally

Domestic workers face challenges for organizing, e.g. decentralization of the workforce, nature of the employment relationship. This article analyses, based on a multiple country-comparison, how domestic workers organize despite constrictions. We identify three forms of organizing: the trade union model and the association model (Shireen Ally). We propose, though, an additional third model, the ‘hybrid type’: domestic workers organize ‘amongst themselves’ in associations and at the same time these associations are linked to or integrated into trade unions, which provides representation, services and contact with other workers. Related to this finding, we see a trend of an ‘emerging trade unionism’. Which means that we tend to find more trade union-related forms of organizing than a decade ago. One explanatory factor is the “governance struggle” of winning the International Labour Organization’s Convention “Decent Work for Domestic Workers” in 2011, which led to an increased collaboration and trust-building between organized domestic workers and trade unions.

LEGAL BASIS FOR TEMPORARY EMPLOYMENT

Temporary employment is based on a modified employment relationship. Its essence is to recognize the entity using the employee’s work as the employer user. This allows him to be relieved of some of the duties of the employer who takes over the temporary employment agency. This makes it easier for employers to hire an employee in the short term. This also creates additional jobs. On the other hand, this entails the development of a legal basis for such employment. There may also be doubts as to who is in charge of certain obligations of the employer.

THE EMPLOYER’S RISK PRINCIPLE

The article discusses the employer’s risk as a principle of labour law. The idea of employer’s risk is that the employer bears the consequences of obstacles in the performance of the employment relationship that it has not caused. The author distinguishes the obstacles: not related (the employer’s risk in a strict sense) and related to the employee (personal risk). As a rule, the employer bears the risk of circumstances not related to the employee. The nature as well as the application scope of regulations allow to formulate a normative principle of the labour law. At the same time the employer bears the risk of the obstacles related to the employee only in cases specified in the labour law, both: statutory standards as well as autonomous provisions. As a result, the personal risk of the employer cannot be considered to be a normative principle of the labour law.

THE RULES OF REMUNERATION OF THE WORKER COOPERATIVE MEMBERS

The subject of the foregoing study is an analysis of the specific rules for the remuneration of members of a worker cooperative who, by contributing to the organisation, participate in the economic risks associated with its operation. Each member of a worker cooperative is guaranteed the right to participate in the profit (balance surplus) of the cooperative, but at the same time participates in covering its losses up to the amount of the declared contribution. This special status of members of a worker cooperative, together with the obligation to work for that organisation on the basis of an employment relationship, has an impact on the remuneration of that category of workers. This can be seen in the structure of their remuneration, which consists of the current salary and the share of the balance surplus to be distributed among the members in accordance with the rules laid down in the statutes. Moreover, the current salary of a member of a worker cooperative and his share of the balance surplus are under protection provided by labour law for the remuneration of the employees.

DO THE PROVISIONS REGULATING THE TERMS OF EMPLOYMENT OF POSTED WORKERS, AS MANDATORY PROVISIONS, ENSURE THE PROTECTION OF THE EMPLOYEE?

All employment relationships, including strictly employment relationships, may be related to the legal areas of two or more countries, which raises the question of the law applicable to a specific legal relationship. The Rome I Regulation has a key importance in determining the applicable law to which the employment relationship is to be subjected. In this respect, the decree of Art. 8 of the Regulation has a fundamental importance, which was analyzed in the first part of this publication. However, the mechanism according to which the lex labori will be corrected by the provisions forcing their application, the issues of which are presented later in the publication, should be distinguished from the scheme presented in the above-mentioned regulation. According to the EU legislator, one of the matters of employment relationships regulated by such provisions is the standardization of the terms and conditions of employment of employees posted to perform work in the territory of a European Union Member State. Answers to the question whether it is appropriate to assign a nature of the rules enforcing its application provisions to this regulation (concerning the terms and conditions of employment of posted workers) has been made at the end of this publication.

EXTENSION OF LABOR LAW PROTECTION STANDARDS IN THE ASPECT OF FIXED-TERM CONTRACTS OF ACADEMIC TEACHERS. COMMENTS DE LEGE LATA AND DE LEGE FERENDA

This paper attempts to determine the scope of protection of academic teachers in the context of repeated concluding fixed-term contracts and the partial exclusion by the Act on higher education of the application of Art. 25(1) of the KP to employment contracts of this group of employees. The author does not intend to duplicate the extensive literature in this area presented by labor law doctrine. In this publication, the author defends the thesis that the employment relationship of an academic teacher should be subject to a broader impact of the protective provisions of the Labor Code, including the protective function of labor law, in a situation where there are no normative obstacles to extending such impact.

CONVERSION” OF A CUSTOMS OFFICER’S SERVICE RELATIONSHIP INTO AN EMPLOYMENT RELATIONSHIP

The selection method of existing employees or officers has been used since the beginning of the Third Polish Republic during the transformation of various public institutions, which consists of making discretionary decisions about whose employment will be continued, as well as under what new conditions it will be carried out. Using the framework for termination of employment for this purpose in subsequent acts, missing in them precise criteria for qualifying persons and the lack of regulations as to the manner of judicial protection are designed to reduce the number of people who would make attempts to contest their decisions. In 2016 on the occasion of the reform of the fiscal apparatus, this method was additionally extended to include the possibility of unilateral and selectively transforming the service relationships of customs officers into employment relationships, or vice versa - fiscal officials to officers. This option was implemented in practice in 2017. This represents a serious threat to the freedom to choose and pursue a profession which must either be restrained by declaring this type of regulation unconstitutional, or by making it unprofitable through court judgments restoring prior employment relationships. The recent case law of common courts and the Supreme Court favours it.

SUBJECTIVE TRANSFORMATION OF THE EMPLOYMENT RELATIONSHIP OF AN ACADEMIC TEACHER

A subjective change of the employment relationship by the employer is subject to the regulation of Art. 231 of the labour code. The norm has got a universal character and its application to the employment in an institution of higher education requires taking into account the specificity of two aspects. Firstly, it is the matter of a workplace possessed by an institution of higher education as the employer. Secondly, the higher education act introduces mechanisms which can be defined as characteristic to this form of transfer of a workplace. In case of the former it is important whether an institution of higher education is public or non-public. Subjective transformation of the employment relationship in institutions of higher education should also require consideration of the protection of stability of employment relationship of academic teachers.

PERSONAL DATA PROTECTION IN THE EMPLOYMENT CONTRACT

This text is devoted to the protection of personal data in the employment relationship. The starting point for this analysis were the provisions resulting from the Polish Constitution, namely Art. 30. We discussed the conditions of personal data protection in labor law, focusing in particular on Art. 221 of the Labor Code and all related regulations. We have tried to explain what the processing of personal data is, and what are the correlations in employment relationships. In our opinion, the protection of personal data itself is not only the necessity of cooperation between the employee and the employer to the extent specified by law, but also based on ethical values. Hence the employer’s obligation to avoid actions that directly interfere with the employee’s protected personal belongings