In August 2007, a legal definition of this type of work and other relevant regulations on the subject were finally incorporated into the Polish Labour Code in August, triggering a crucial shift in public policy towards telework. The new regulation came into force in October 2007. As a result, one of the major obstacles hindering the development of telework in Poland for many years is no longer present.
In August 2007, the Polish Labour Code was amended in order to introduce telework into the Polish legal framework by adding a new chapter entitled ‘Employment in the form of telework’. Article 67/5 Paragraph 1 of the Labour Code defines telework as follows:
Work can be performed away from the premises of an employer on a regular basis using means of electronic communications […] (telework).
Although this definition slightly differs from the one provided in the 2002 European framework agreement on telework (107Kb PDF), it apparently follows the line set by Article 2 of this agreement. Accordingly, a teleworker is defined as:
an employee performing work in the conditions specified by § 1 and reporting the outcome of work to the employer, in particular using means of electronic communications.
Bearing in mind that telework as a form of work has only recently been officially recognised, it is not surprising that no official statistical data on the overall incidence of the phenomenon are available to date. For that reason, only survey data can be used to assess the scale and extent of telework in Poland. According to a survey carried out in 2005–2006 as part of the European Social Fund (ESF) project on ‘Telework. Nationwide training and promotional programme for enterprises’ among a representative sample of 1,000 enterprises, 1% of persons employed by the respondent enterprises were teleworkers. In absolute numbers, that figure would translate into about 150,000 employees in the national economy.
According to the same survey, the main occupations and skills/qualifications to which telework applies include financial services (activities in this field with the use of telework was reported in 33% of enterprises), computer graphics (28%), accounting (25%), legal services (22%), sales (19%), technical (engineering) design (18%), as well as information systems design and computer programming (16%).
Based on the same survey results, economic sectors using telework most frequently include publishing, printing and electronic data processing (22%), radio and TV equipment manufacturing (20%), financial services (19%), research and development (R&D) (16%), and computer and office equipment manufacturing (16%).
The available data documenting the development of telework clearly indicates that the incidence of this from of work has been increasing since 2000. According to the research project ‘Flexibility in demand for telework in Poland. Analysis and simulation’ carried out by the Institute of Labour and Social Affairs (Instytut Pracy i Spraw Socjalnych, IPiSS) in 2001 and 2002 on a sample of 264 enterprises, 2.3% of the companies approached reported using telework and another 4.2% declared considering the introduction of telework in the future. The 2003 data by the Statistical Indicators Benchmarking the Information Society (SIBIS) project revealed that the number of teleworkers in Poland reached 8% of the total workforce. According to the ESF project survey, in 2005–2006 telework was used by almost 16% out of the 1,000 enterprises surveyed, with a further 19% of companies declaring interest in introducing telework in the future. It should be noted, however, that these data samples are incomparable due to methodological differences of the respective research projects.
The new chapter of the Polish Labour Code on ‘Employment in the form of telework’ follows the line of the 2002 EU framework agreement on telework not only in relation to the definition of telework, but also in its remaining regulations.
The bipartite agreement, which implemented the 2002 EU framework agreement, was concluded by the representative social partners in June 2005 and provided a foundation for the new legislation.
The new legislation is the only binding Polish regulation on telework in force at the moment. The 2005 bipartite agreement concluded by the trade unions and employers within the Social Dialogue Roundtable for European Integration (Okrągły Stół Dialogu Społecznego na rzecz Integracji Europejskiej) marked a milestone in the course of implementing telework into the national legal framework, as it paved the way for completion of the draft legislation.
Before August 2007, no regulations dealing specifically with telework existed.
By virtue of Article 67/15 Paragraph 2 of the Labour Code which is part of the new chapter on telework, teleworkers are protected by a non-discrimination clause. Therefore, in no case may an employment contract be terminated due to an employee’s refusal to undertake telework. Telework is voluntary for the worker and employer. As a result, an employment relation in the form of telework can only be established on the mutual consent of both parties. In the case of an employee already working under a ‘traditional’ employment contract and expressing a willingness to undertake telework, the employer is to acquiesce to this request ‘when feasible’, according to Article 67/7 Paragraph 3 of the Labour Code.
Article 67/14 of the Labour Code – also part of the new chapter on telework – specifies the conditions under which the employer is to supervise and control the conduct of work. While it is the general right of an employer to exercise control over telework, teleworkers retain their right to privacy – as do their families in cases where the teleworker works from home – by virtue of Paragraph 3 of this article. In particular, by virtue of Paragraph 2 of the same article, employers have the right to control the progress of work, to check and/or repair technical equipment used for telework, and to maintain proper health and safety conditions in the place of work. Control activities can be performed directly or indirectly by using means of electronic communications; in the former case, such a control requires the prior written consent of the worker concerned.
Article 67/15 Paragraph 1 of the Labour Code as part of the new chapter on telework stipulates that teleworkers have the same access to training as workers at the employer’s premises. Furthermore, under Article 67/16, teleworkers retain the right to access employers’ premises in order to contact other employees and/or access social facilities and technical equipment, if needed.
Seeing as occupational health and safety training is mandatory for all employees under Polish labour law, teleworkers are also required to undergo such training before commencing a job. The time required for the training is counted as working time, and the employer is to bear all costs of the training. However, by virtue of Article 67/17, considering the nature of telework, namely the fact that it is performed outside of the employer’s premises, certain regulations do not apply, including those which concern sanitary and safety requirements for work premises or access to sanitary facilities.
Since the new chapter on telework in the Labour Code does not refer directly to collective bargaining, the general rules on collective bargaining rights stipulated by relevant regulations of the Labour Code apply. However, an important clause has been included in the new chapter on telework which enables workplace-level employee representation to shape the model of telework to be implemented in a given enterprise. Under Article 67/6, specific conditions under which telework is to be performed are the subject of an autonomous agreement between the employer and company-level trade unions. If no consensus is achieved with all the trade unions, the signatories on the employee side could be limited to representative – as defined by Article 241/25a of the Labour Code – unions active in the company. Only if the agreement cannot be concluded one way or the other, the employer is entitled to impose the regulations. In the case of non-unionised workplaces, the negotiations are to be held between the employer and employee representatives selected in a way ‘typical for the specific employer’.
The 2005 autonomous bipartite agreement between the social partners opened the way for implementing telework into the national legal framework in Poland. Out of the six representative social partner organisations participating in the negotiations of the Social Dialogue Roundtable for European Integration, only the All-Poland Alliance of Trade Unions (Ogólnopolskie Porozumienie Związków Zawodowych, OPZZ) declined to sign the agreement. This initially led to a deadlock in the process, as the government had clearly stated that only an unanimous decision of all organisations involved in the negotiations would enable the transposition of the bipartite agreement on telework into law. The reasons publicly given by OPZZ for its reluctance to sign the agreement were vagueness of the proposed regulations and an insufficient level of protection for teleworkers. However, in mid 2006, OPZZ altered its original position and officially declared that the autonomous agreement should be used as a basis for the future law. With no formal obstacles present any longer, the agreement was eventually acknowledged as binding, hence recognised as a foundation for the new legislation. The draft legislation prepared by the government on the basis of the agreement was approved by the Labour Law and Collective Bargaining Team of the Tripartite Commission in March 2007 and subsequently submitted to the parliament, where eventually it was successfully passed into law.
Jan Czarzasty, Institute of Public Affairs