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.

COLLECTIVE AGREEMENTS IN THE ANTI-CRISIS SHIELD

In response to the outbreak of the COVID-19 pandemic, the Anti-Crisis Shield has been enacted, which provides, inter alia, for the possibility to conclude collective agreements introducing economic demurrage, reduced working time, equivalent working time combined with prolongation of the settlement period to 12 months and less favourable conditions of employment of employees than those arising from the employment contracts concluded with them. The purpose of this paper is to analyse the above agreements and to try to assess whether they have been given the correct legal shape.

THE ESSENCE OF A FIXED-TERM EMPLOYMENT CONTRACT

The existing regulation of the Labor Code includes three types of employment contracts. It means that each of them may be concluded only in certain circumstances. The differences between them result from their different functions and purposes. The shape of the regulation of each contract should reflect its nature. The essence of a fixed-term employment contract is shaped by three structural elements: the temporary nature of the work to be performed, unconditional determination of the end of the employment contract, and stability of the contract. The purpose of this article is to characterize each of these elements and assess the compliance of the existing LC regulation with the nature of the contract in question.

Wybór prawa dla umowy o pracę. Glosa do wyroku Trybunału Sprawiedliwości Unii Europejskiej z dnia 15 lipca 2021 r. w sprawach połączonych DG, EH c/a SC Gruber Logistics SRL (C-152/20) oraz Sindicatul Lucrătorilor din Transporturi, TD c/a SC Samidani Trans

This paper comments on a recent ruling concerning the choice of law to the individual employment contract according to the Rome I Regulation. In the judgement in the joined cases C–152/20 and C–218/20 (DG, EH v. SC Gruber Logistics SRL and Sindicatul Lucrătorilor din Transporturi, TD v. SC Samidani Trans SRL), the Court of Justice of the European Union (CJEU) provided the interpretation of Article 8 of the Rome I Regulation on two issues. At first, the EU Court was asked about the freedom of choice of law applicable to the individual employment contract if (a) national law required the inclusion of a clause into that contract under which the contractual provisions are supplemented by national law and (b) the contractual clause concerning that choice was drafted by the employer. The second issue was connected with the concept of the employee’s protection, under which the choice of law may not have the result of depriving the employee of the protection afforded to him (her) by provisions that cannot be derogated from by agreement, under the law that would have been applicable to the contract in the absence of choice. Regarding the first question, the CJEU admitted that the parties to an individual employment contract dispose of freedom to choose the law applicable to that contract, even if the contractual provisions are supplemented by national labour law under a (relevant) national provision, if “the national provision in question does not require the parties to choose national law as the law applicable to that contract”. Secondly, the Court found that the parties to an individual employment contract were “to be regarded as being, in principle, free to choose the law applicable to that contract, even if the contractual clause concerning that choice is drafted by the employer”. Therefore, the CJEU confirmed the application of the rules concerning the choice of law resulting from Article 3 of the Rome I Regulation to the individual employment contracts. Referring to the second issue of the commented ruling, the CJEU confirmed that Article 8 (1) of the Rome I Regulation must be interpreted as meaning that, where the parties have chosen the law governing the individual employment contract, the application of the law that would apply to the contract in the absence of choice must be excluded, with the exception of “provisions that cannot be derogated from by agreement”, if those provisions offer the employee concerned greater protection than those of the law chosen by the parties. The EU Court underlined that rules on the minimum wage could be treated as “provisions that cannot be derogated from by agreement” and the law that, in the absence of choice, would be applicable should decide about it. Unfortunately, it is necessary to follow the commented judgment’s justification to correctly understand the concept of an employee’s protection applied in Article 8 (1) of the Rome I Regulation. The thesis of the ruling in this regard seems to be too laconic, and it can be misinterpreted.

Is Digital Nomadism the Answer to Work Life Balance?

The world is currently experiencing a rude awakening because of the COVID-19 pandemic and in a matter of months businesses averse to trust the benefits of remote working have been compelled to adapt. This advantage has enabled many Human Resource (HR) Professionals to revisit the dreaded topic of flexible working, as the new normal has shown that it is not where you work but the work you produce that matters. Ironically, the age-old question of work-life balance surfaces as individuals search for the purpose of life as the pandemic brings everyone to their knees and philosophically people question what exactly is this balance. For HR Professionals this question is not personal but a matter of their profession in providing companies with a wider lens to understand that in order to remain competitive they need to adapt to change. One of the ways is to develop an open mindset and flexibility to revise their policies on types of flexible working, which offers work-life balance and positively impacts their ability to retain and attract highly skilled talent. This article examines the concept of Digital Nomadism as one of the radical yet realistic ways to achieve work-life balance. Digital Nomadism puts a new spin on work arrangements and is a movement of highly mobile workers who dictate where they work, how they adapt to the demands of work to suit their lifestyle and find balance; with digital technologies. The concept has been around since 2014, the history of nomadism even longer but what is new, and why this subject adds value is the ingenuity of technology, how it makes this way of working a reality and the increasing numbers of digital nomads. The research suggests that approximately several hundred thousand of digital nomads exist throughout the world and numbers continues to rise due to globalization and the need for talent to be flexible with their lifestyles and work. Interestingly, while many companies are convinced of the technological disruptors and how it changes the face of work from a technical perspective, the flexibility of work patterns remains a hard sell in some cases. Consequently, recruiting for talent, employment contracts and the way work is organized, remains the same and lacks flexibility. This limits the opportunity to remain competitive, retain or attract top talent and drive innovation at all angles of the business. This paper will confirm whether the solution to work-life balance is the notion of digital nomadism, detailing how it works, its benefits and issues, with the intention to offer an option to forward thinking companies, reasons to adapt their flexible working policies.

Insecure Employment Contracts during the COVID-19 Pandemic and the Need for Participation in Policy Making

Job security influences the ability of nurses to provide high-quality nursing care. The Iranian health system has always faced nursing shortages, and the COVID-19 pandemic has worsened this situation. Although nurses have been labelled ‘heroes’ across the globe, many of them have been hired using insecure employment contracts. This commentary aims to describe issues surrounding job contracts for Iranian nurses during the COVID-19 pandemic and discusses how the current situation can be improved. Iranian nurses are at the frontline of the fight against COVID-19 and need to receive better support in terms of job security and dignity. They should participate more in policymaking activities to improve their job condition and prevent the development and implementation of the short-term and insecure job contracts that lead to job insecurity.

Addressing the legal issues of an innovative start-up company

<p>Before examining the substance of the law it is necessary to discuss the contrast between law and practice. It is important to keep in mind that the letter of the law is sometimes not what is done in practice. This realisation is often referred to as the “law and society perspective.” Advocates of this perspective treat legal doctrine as more than just a closed system because they recognise that there are other external influences at play. Beyond the law, people are also influenced by other factors such as social roles, morals, religion and culture. For example, university researchers have an external incentive mechanism outside of IP law. Such researchers frequently prefer to publish their results and discoveries in academic journals rather than file for patents. A patent cannot be granted where there has been a publication. However the researchers are motivated by other incentives such as access to research funds and the attainment of professorship. The Law and Society perspective highlights the fact that the formal processes, which are provided for by the law are at times substituted by informal customs and understandings. An information technology (IT) firm that contributed to this paper by participating in an interview (Interviewee A), provided a good example of such an occurrence. Rather than use any of the formal IP modes of protection which are discussed in the following sections of this paper, ‘Interviewee A’ uses a very unorthodox strategy to protect their IP. They said: “we rely on employment contracts, code of conduct, and especially personal ethics and behaviour to protect our IP. We therefore have a company culture that encourages teamwork and cooperation”.</p>

Addressing the legal issues of an innovative start-up company

<p>Before examining the substance of the law it is necessary to discuss the contrast between law and practice. It is important to keep in mind that the letter of the law is sometimes not what is done in practice. This realisation is often referred to as the “law and society perspective.” Advocates of this perspective treat legal doctrine as more than just a closed system because they recognise that there are other external influences at play. Beyond the law, people are also influenced by other factors such as social roles, morals, religion and culture. For example, university researchers have an external incentive mechanism outside of IP law. Such researchers frequently prefer to publish their results and discoveries in academic journals rather than file for patents. A patent cannot be granted where there has been a publication. However the researchers are motivated by other incentives such as access to research funds and the attainment of professorship. The Law and Society perspective highlights the fact that the formal processes, which are provided for by the law are at times substituted by informal customs and understandings. An information technology (IT) firm that contributed to this paper by participating in an interview (Interviewee A), provided a good example of such an occurrence. Rather than use any of the formal IP modes of protection which are discussed in the following sections of this paper, ‘Interviewee A’ uses a very unorthodox strategy to protect their IP. They said: “we rely on employment contracts, code of conduct, and especially personal ethics and behaviour to protect our IP. We therefore have a company culture that encourages teamwork and cooperation”.</p>