Ruch Prawniczy, Ekonomiczny i Socjologiczny, 1988, nr 4

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Spis treści RPEiS 50(4), 1988
(Wydział Prawa i Administracji UAM, 1988)
O nowy model prawa pracy
(Wydział Prawa i Administracji UAM, 1988) Szubert, Wacław
The article is devoted to the presentation of some most important elements of a new model of the labour law. First, the author shows the contrasts between the situation which existed before and after 1980 in the sphere of the labour law and labour relations. Next, he formulates some postulates concerning the future shape of the labour law. He indicates that the pre-1980 model was of etatistic and centraliste character where the employers were the extension of the State and the protection of the employees' interests could not be adequate since on the one hand the law regulating the employment relations was formed exclusively by the State organs and on the other the trade unions, being a part of the State structure, did not represent the employees' interests properly. After 1980 some new forms of relations between the State and the employees appeared: social agreements and negotiations. Moreover, the Act of 1981 on State Enterprises put forth a compromise between the old and the new models of relations, introducing the institution of the employees' self-government and the 3 S rule (self-financing, self-dependence, self-government of enterprises). Although the solutions contained in the legislation promulgated after 1980 have not produced the effects commensurate with the original expectations, they introduced several important legal institutions, such as the right to strike; collective disputes or the employees' self-government. For the future reform of the labour law the above institutions remain of vital importance. However, it is also (necessary to add other elements, e. g. freedom of trade-unions (at present only 1 trade union organization per 1 factory is allowed, what is against ILO convention no. 87), more room for regulating matters connected with employment by contractual means, or equal treatment of socialized and non-socialized sectors. Generally speaking, the changes should go in the direction of a pluralistic and democratic model based on social agreements, self-governments of the employees and greater independence of employers due to a decreased influence of the State administration on their activities.
Podstawowe założenia przebudowy prawa pracy
(Wydział Prawa i Administracji UAM, 1988) Salwa, Zbigniew
The article discusses theoretical problems of the Polish labour law reconstruction, focusing its attention on basic directions of the labour law reform. The author begins has considerations with the presentation of the most vital reasons indicating the need to carry out a far-reaching reform of the labour law. Its main purpose should be to synchronize legal solutions with actual socio-economic changes and to ground legal construction on economic mechanisms to a greater degree than in the past. The above refers to provisions realizing both an organizational as well as a protective function of the labour law. Being of the opinion that the Labour Code should remain a basic source of the labour law, the author postulates that the regulations contained in that Code be based mostly on semi-imperative norms allowing, within uniform constructions, to depart from the Code's provisions in legal acts of a lower rank and in a contract for employment in the direction favourable to an employee. The above would make it possible to secure uniformity and coherency of the labour law system and to develop and differentiate the work and pay conditions and other rights of employees in a decentralized manner, mostly by way of normative agreements. It is the author's opinion that the reconstruction of the labour law should increase the importance of a contract for employment, should reduce nomination as a basis of entering into the employment relationship and should lead to the elimination of appointment as a separate, known only in the Polish labour law, source of the employment relationship. One of the directions of the labour law reform should be to improve the quality of the labour law in both its substantive as well as technical-legislative aspects. The planned reform should also exert influence on restructuring and increasing the level of different employees' rights, although the economic situation does not allow to expect too much in that respect. The reform should also strengthen the mechanisms securing the observance of those rights by the management of enterprises.
Zakres podmiotowy i przedmiotowy kodeksu pracy. Uwagi de lege ferenda
(Wydział Prawa i Administracji UAM, 1988) Lewandowski, Henryk
The author limits his remarks to some proposals concerning the subjective and substantive scopes of the future Labour Code. The Labour Code should regulate the situation of all employees, irrespective of the way of entering into the employment relationship, the type of work and the sector of the economy. The author postulates to include into the Labour Code persons who perform work within relations similar to the employment relationship. Those persons (out-workers, agents, members of agricultural cooperatives), with exceptions provided for by the Code, would enjoy the status of employees. In considerations devoted to the substantive scope of the Labour Code the author focuses his attention on institutions of the collective labour law, on labour exchange, on the organs of supervision over the observance of the labour law legislation and on the regulation of the principles of the labour law. The author believes that the above matters should be contained in the Labour Code.
Nowa koncepcja zobowiązaniowego stosunku pracy
(Wydział Prawa i Administracji UAM, 1988) Chobot, Andrzej; Kijowski, Andrzej
The economic model of free competition forces an employer to increase efficiency notwithstanding the degree of liberality of legal formulas of entering into the employment relationship. Of such liberal character is the conception of the employment relationship as an obligation towards an employer to perform with due care work of a given kind. Such a conception does not secure economic efficiency in socialism, since it rejects free competition and it safeguards social security by means of certainty of both employment and revenues form work. In conditions of the Polish economic reform such safeguarding mechanisms should not go beyond providing means which would allow to regenerate energy spent for work and satisfy basic needs. An individual standard of living as well as the level of collective consumption should depend on work efficiency. The above assumptions of a modified social policy system should find their expression in an adequate model of the employment relationship. The authors postulate to complement the actual conception of a due-care contract with a new and prevailing conception of a so-called task-result employment relationship. By entering into such a relationship an employee would be obligated to be ready to accept an employer's offer to carry out definite tasks, compatible with the employee's qualifications and remunerated according to his /her category of individual rank or according to the minimum wages statute. In turn, an employer would be obligated to formulate offers comprising tasks and total amounts of money to be paid for carrying out those tasks. Thus it would be an obligation whose contents would „change with the changes in tasks and remuneration, determined in subsequent autonomous clauses, accidentally connected with the contents of a framework-contract for being ready to work.
„Umowy nienazwane" w grupowym systemie pracy
(Wydział Prawa i Administracji UAM, 1988) Zieliński, Tadeusz
According to the Labour Code of 1974 the employment relationship is an obligation between a single employee and an employer. The basis of such a relationship is the employment contract concluded with each employee separately. The Polish labour legislation does not provide for the institution of so-called group employment relationships concluded by several people jointly on the one hand and an employer on the other. However, such contracts appear in connection with a new trend of introducing in state enterprises so-called group forms of work organization. By virtue of such contracts, a voluntarily established group of people assumes the obligation of performing jointly a given production task for a stated remuneration which is later divided among the members of a group by the independent decision of the whole group. According to the majority opinion of legal scholars, such contracts are not a legally separate type of contracts but are in fact only a sum of so-called „autonomous clauses", i.e. contractual stipulations which complement the contents of employment contracts concluded by an employer with each individual member of a group. The author criticizes the above view and tries to prove that the basis of employing in a group system of work is a separate contract for collective labour which may be characterized as an innominate contract concluded between an employer on the one hand and a group of employees on the other. The above contract is a source of a so-called joint obligation on the part of the members of a group. The said contract is not the employment contract yet it contains elements typical for a contract of employment as well as a contract for performing a specified task or work and — with respect to relations between the members of a group — elements similar to those appearing in the partnership contract. A complex structure of those group contracts indicates that they are mixed contracts (a type of innominate contracts) imposing the obligation to achieve a stated effect and burdening the employment with a part of the risk to carry out that task. Since the employment contract components prevail, the said contracts are subject to the labour law regulation. Hence, the members of a group enjoy full protection granted by the labour law to people employed by virtue of contracts falling under the Labour Code provisions. The author postulates to adopt the provisions regulating the said type of innominate contracts in the amendments to the Labour Code. In his way a new type of a contract — a contract for rendering collective work — would appear in the Polish labour law. The author agrees in principle that it is high time to break away from a stereotype of the employment contract as a due diligence contract (locatio conducilo operarum), radically different from a contract for performing a specified task or work (locatio conductio operis). The elimination of differences between those two kinds of contracts finds justification in the world trends to make the labour law more flexible in response to the incoming „third wave" of the civilization of our epoch.
Współczesne kierunki przekształceń odpowiedzialności podmiotów prawa pracy
(Wydział Prawa i Administracji UAM, 1988) Sanetra, Walerian
The implementation of the economic reform and the decrease in the levels of discipline, efficiency and quality of work made it necessary to introduce new legal regulations in the sphere of responsibility of the labour law subjects. The above has been coupled with the heightened interest of the labour law scholars in the problems of responsibility. In particular, the said interest has been focused on the question of responsibility of collective subjects of the labour law, i.e. an enterprise, a crew and trade unions. On the one hand, the legislator attempts to find new and more efficient means and mechanism of responsibility, in agreement with the assumptions of the economic reform. On the other hand, however, there appears a tendency to repeat old mistakes consisting mostly in a conviction that discipline, efficiency and quality of work could be stimulated by increasing rigours and developing the employees' responsibility institutions. Self-dependence of economic subject made it necessary to widen their responsibility, what was implemented in the first place through the provisions on liquidation and bankruptcy. The strengthening of a position of a crew resulted in the need to promulgate laws regulating the responsibility of its representatives and organs. Similarly, independence of a self-government and trade unions brought a new outlook on their responsibility. Besides, nowadays more modern legal regulations of the managerial staff responsibility, and especially the responsibility of managers of State enterprises, are being searched for. The efforts at shaping anew the responsibility of the labour law subjects, i.e. an employee, an enterprise, a crew and trade unions, are not always coherent and consistent. Besides, the promulgated provisions evoke criticism also from the point of view of the requirements of the legislative technique.
Zbiorowy spór pracy w polskim ustawodawstwie i praktyce
(Wydział Prawa i Administracji UAM, 1988) Masewicz, Walerian
The subject-matter of the article are the problems of collective labour disputes (chapter 5 of the Act of Oct. 8, 1982 on Trade Unions). The second part of the article is devoted to the notion of a collective labour dispute according to the Polish law. A collective labour dispute is defined as a conflict arising from a threat to economic and social interests of a given group of employees. Much attention has been devoted to the scope of a concept of an interest in the light of sociological and economic theories, and to the distinction between general and professional interests. The above problems are discussed on the example of some labour disputes in Polish enterprises in years 1984 — 1986 concluded by decisions of Social Arbitration Boards, i.e. the institutions provided for in the Trade Unions Act. The considerations lead to the conclusion that a collective dispute in its legal sense, as a conflict of interests, must have the features of a conflict of interests which are inherently connected with a socio-lega! status of a person as an employee and not with his/her status as a citizen, as a member of a political party, a social organization or a religious association, etc. The Act provides for two categories of collective labour disputes: disputes on an enterprise and supra-enteprise level. The article analyses in detail the criteria delimiting those two categories and gives examples of various ways of understanding those criteria in the judicial practice of the State court, especially the Supreme Court and Boards of Social Arbitration.
Rekompensata szkody na osobie pracownika
(Wydział Prawa i Administracji UAM, 1988) Brol, Jan
1. Compensation for personal injuries sustained by an employee has long been a controversial social and legal problem. Namely, social insurance benefits do not cover a full damage. Thus, the greater the difference between the damage and those benefits, the more significant from a social point of view the problem of obtaining a compensatory payment becomes. 2. The Act on Accident Benefits of 1975 introduced for an employee a more advantageous system of compensating personal injuries than the previous law. However, the present regulation is not free from shortcomings. There still remains an unsolved, yet basic problem of just compensation. The present system does not provide for a compensation of a full damage (in a civil law meaning) but of a damage defined in the Act. The maximum level of social insurance benefits, including benefits obtained form an employer, is limited by the Act. The source of compensation for the loss of income due to a complete on partial inability to work are— depending on its period and a character and degree of disturbance of health — sick benefits, salary differentials, rehabilitative payments, compensation allowances, compensation payments and disability pensions Furthermore, an injured person, or — in the case of his/her death — members of his/her family are entitled to a single indemnity, the level of which (maximum: 250 000 zl) depends on the percentage of a permanent or long-lasting detriment to the health. 3. Even though a compensation covers only a part of the damage, an employer — by virtue of the Act of 1975 — is not liable (civil law liability) for the damage resulting from labour accidents or occupational diseases. Similarly, if a person causing damage is an employee, he/she is also free from civil law liability. An injured person may thus obtain a compensatory payment only when a third party is a person liable for the damage. In turn, an employer is liable for a damage causally linked with employment, yet resulting from another occurence than occupational accident or disease. 4. A principle adopted in the present system: a sure yet not full allowance, does not correspond with social expectations. Therefore, it is necessary to continue the process of improving a system of compensation for personal injuries. An optimum model would be to depart from states of affairs determining rights to allowances (labour accidents, occupational diseases) and to adopt a rule that each damage which is in causal nexus with employment would give a right to allowances covering, in principle, a full damage. Before such a rule is introduced, an employer should be held liable for any non-compensated damage, especially if an employer or its subordinates could be held guilty of such a damage.
Prawne warunki stabilizacji zatrudnienia kierownika zakładu pracy
(Wydział Prawa i Administracji UAM, 1988) Niedbała, Zdzisław
In conditions of the economic reform that is in conditions of self-dependence and self-government of enterprises, a special role is to be played by managerial staff. Among them the most important place is reserved for managers of state enterprises and cooperatives. The Labour Code provisions (Art. 4 and 23) declare that managers of enterprises represent the enterprises to their crews and manage those enteprises according to the principle of one-person rule The laws regulating the activity of state enteprises grant their managers the right to taking self-dependent lawful decisions. Carrying out such important tasks and competences requires high professional qualifications and organizational skills. At the same time, however, a condition of the efficient realization of those tasks is to guarantee to the managerial staff at least some basic conditions of employment stability. To a considerable degree the latter postulate has been implemented by the Act of Sept. 25, 1981 on State Enterprises. The provisions of the Act vest tasks of protecting the stability of employment of a manager in so-called founding organs, i.e. the State administration organs and the employees' councils of enterprises. So far, however, managers themselves have had no autonomous legal means to question the decisions recalling them from managerial posts. Similarly, members of the management of a cooperative may be recalled by a statutory organ of a cooperative without any reasons, i.e. without the recalling organ's duty to state the motives of dismissal. The proposals of changes in that respect in conditions of a new economic situation seem indispensable.
Odpowiedzialność dyrektora za wyniki działalności przedsiębiorstwa
(Wydział Prawa i Administracji UAM, 1988) Kubot, Zdzisław
A manager of a state enterprise is subject to many different forms of responsibility. Among them an important place takes the responsibility for the effects of the economic activity of an enterprise. Responsibility for effects is indispensable in economic mechanisms based on competition. In the case of such mechanisms the main duty of a manager cannot be reduced to the obligation of due-diligence and a prerequisite of his/her responsibility cannot be reduced to guilt. The responsibility of managers of enterprises which report poor economic results or lose in competition with others should take the form of dismissal or financial sanctions (deprivai of bonuses and awards).
Stosunki prawne pomiędzy organami przedstawicielstwa pracowniczego w przedsiębiorstwie państwowym
(Wydział Prawa i Administracji UAM, 1988) Sypniewski, Zbigniew
According to legal writers, subjects of legal relations in the analysed sphere are a crew and a trade union, not their organs. However, self-government and trade union organs have various duties and rights which to some extent are independent of the duties and rights of the organizations they represent. The above justifies treating those organs as legal subjects, capable of entering upon reciprocal legal relations. Such an approach is of great practical importance. Legal relations between organs of employees' representation are the relations of cooperation, based on law, statutes and contracts. Those relations are entered upon by virtue of the law and their changes may be of general or individual character. They are terminated only when one of the participating subjects has ceased to exist. The contents of legal relations of cooperation includes two types of rights and duties, i.e. the rights and duties which are addressed 1) directly to organs; 2) to a crew or to a trade union organization, yet the circumstances make it clear that the organs have to behave in a certain way. Form a substantive point of view those rights and duties are concerned with creating or applying legal norms in an enterprise.
Rola prawa pracy w przezwyciężaniu alienacji pracy (wybrane zagadnienia)
(Wydział Prawa i Administracji UAM, 1988) Rączka, Krzysztof
The article comments on some aspects of the role of the labour law in overcoming the alienation of labour. The process of eliminating the said alienation is determined by many factors, among which the labour law plays a significant role. The areas of the labour law which might be mentioned in this connection are provisions on safety and hygiene of working conditions, on working time, on remuneration for work, on social benefits, etc. Generally speaking, the problems indicated in the title offer resourceful and promising research prospects.
Funkcja rozdzielcza prawa pracy
(Wydział Prawa i Administracji UAM, 1988) Kociucki, Leszek
Distributive function of the labour law is based on the principle of formal justice (the principle of equal measure). The article points out to the features of the labour law which determine the way of carrying out that function: uniformity and differentiation. The article characterizes basic formuli of distribution of goods contained in the Constitution and in the Code and particular formuli contained in acts of lower rank, such as collective bargaining agreements, factory pay agreements, etc. The author points out to some problems connected with the fact that basic formuli of distribution of goods are actually carried out by the acts of the so-called collective labour law. The article presents the classification of formuli of distribution of goods. In concluding remarkis the evaluation of an agreement between particular and basic formuli has been undertaken, with attention paid to some inconsistencies and loosening of ties between some basic and particular formula.
Płaca minimalna jako narzędzie polityki ekonomicznej
(Wydział Prawa i Administracji UAM, 1988) Polańska, Aurelia
In the Polish People's Republic the minimum pay has always been and still is a means of a central pay policy, used to set back the growth of pay of people employed in the socialized sector. Its value has always been and still is lowered, for it does not guarantee the satisfaction of basic needs of an employee and his/ /her dependents. Such an approach brought about only negative effects in the sphere of motivation to work. In 1994 there will be a 100th anniversary of introducing the minimum pay in New Zealand. On that occasion a comparison between purchasing power of minimum pays in various countries will be conducted. May Poland not take a discrediting place! The minimum pay, just like any other pay, must perform income and motivating functions. One may expect the economic revival to come when people are able to live on one pay, also on the minimum pay. It would increase the value of work. The theses of the 2nd stage of the economic reform did not raise this issue; it is one of the reasons for this article to have been written.
Systemowe aspekty reformy płac w przedsiębiorstwie
(Wydział Prawa i Administracji UAM, 1988) Jarmołowicz, Wacław
The subject-matter of the article is the analysis and evaluation of implementation of the pay reform in an enterprise. The author focuses his attention oh the key problem for the reform, namely the influence of the economic efficiency of an enterprise on the size of income funds and the level of the employees remuneration. Presenting and analysing the above problem, the author reconstructs and confronts the assumptions of the reform with the praxis of its implementation. In particular, the considerations include a critical review of theoretical conceptions set forth in the period of discussions on the assumptions of the reform, projections of changes contained in „The Directions of the Economic Reform" and actual and implemented changes. Pointing to a limited scope of those changes and to their serious shortcomings as to motivation and efficiency, the author justifies the need and directions of a further radical reform of remunerations. In the first place, stressing an integral character of system solutions, the author declares for the necessity of strengthening the role of profit (and especially net profit) as a rational and motivatively efficient basis of regulating the size and distribution of income funds.
Wzory ruchliwości pracowniczej we współczesnych teoriach rynku pracy
(Wydział Prawa i Administracji UAM, 1988) Szambelańczyk, Jan
Changes in the system of managing the national economy in Poland and the implementation of a conception of development based to a higher degree on economic coercion make it necessary to modify the aims and methods of the employment policy and to apply the mechanisms of the labour market. In contemporary economy and sociology there is a number of theories aiming at explaining behaviours of the labour market subjects. The article synthetically characterizes selected theories in 3 groups: 1) theories of behaviours on the labour market in flexible conditions of employment (The status attainment theory, the human capital theory, the job-search theory, the imperfect competition theory); 2) theories of behaviours in non-flexible conditions of employment (the job-competition theory, the vacancy competition theory) and 3) a dynamic model which reduces the shortcomings present in the previous conceptions, especially their static or semi-static character. The analyses of the above theories stress mainly the regularities of the employees' behaviours, conceived in terms of sociological categories of rewards and punishments, and especially in terms of increases and decreases in job-status in consequence of the employees' mobility.
Płynność kadr. Socjoekonomiczna interpretacja zmiany miejsca pracy
(Wydział Prawa i Administracji UAM, 1988) Dymarski, Włodzimierz
The interpretation of a mechanism of an individual act of changing jobs takes as a starting point the analysis of the object of such a change. Vast differences between the meanings various authors ascribe to the concept of a job (see: Appendix) made it necessary to begin the considerations with the attempt to explain the essence of those differences and to systematize the concepts. In effect, it has been assumed that „a job" will be understood as a set of functions, separated from an organizational structure of an enterprise, to be performed by one employee during his/her full time work, together with the means necessary to realize those functions. A job defined in the above way and an employee working there form a basic unit of a social division of labour. An individual act of changing jobs is a result of a destabilization of that basic unit in consequence of divergences between the employee's expectations and the possibilities of satisfying them through his/her work in a given job. The explanation of that process has been based on the analysis of the structure of an „employee — job" system, together with the analysis of internal and external conditions of its stability-and objective and subjective factors of the destabilization. Two types of stabilization have been distinguished: a) voluntary, which is a consequence of a sufficiently high level of satisfaction as to a job and its environment; b) forced, which is a cosequence of a failure to carry out a decision to change job. It is only the former type of the employees' stabilization which may be identified with a stability of employment.
Morfologia jakości pracy
(Wydział Prawa i Administracji UAM, 1988) Unolt, Jerzy
A category of the quality of work is understood in many ways, what is first of all a consequence of the complexity of that phenomenon. The purpose of the article is to present comprehensively a category of the quality of work of an individual producer, taking into account the elements of its structure. The quality of work may be analysed from the point of view of effects as well as outlays. In the first approach, about the quality decides the result of work, evaluated from the viewpoint of technical and/or economic criteria. However, the possibilities of such evaluations are limited to works which result in material products or services. If work consists in rendering non-material services, the only basis for evaluating its quality are the outlays In the latter case the quality of work is determined by: — the characteristics of work, determining its objective difficulty (complexity of functions, responsibility, strenuousness of activities and material environment conditions); it is the quality required by work; — behaviours of people who perform work (intensity of work, rational use of means of production, lack of defects, promptness of completion, work discipline, initiativeness); it is the realized quality. The lack of a synthetic measure of the quality of individual work makes it necessary to apply to its evaluation various fragmentary measures, the synthesis of which is always burdened with some degree of subjectivism.
Postawy wobec pracy
(Wydział Prawa i Administracji UAM, 1988) Sarapata, Adam
The author confronts the opinion — voiced generally by the management circles and by a considerable part of the society — that Poles do not set a high value on work and that they are responsible for their negative attitude towards work with his own research the results of which prove that: 1) in the value system of Poles work takes an important place; 2) the attitude of the majority towards work is determined by conditions which do not depend on employees but on the management, on the management's intellectual, moral and organizational qualities.

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