What is the transfer of the workplace to another employer?

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The Labor Code in art. 231 provides for special rules applicable to the transfer of a workplace to a new employer. These regulations are mainly aimed at securing the rights of the employees of the current employer, against using the structure of taking over the workplace to reduce employment or change working conditions and pay. Due to the fact that the regulations are absolute and, by law, grant rights to employees, and impose obligations on employers - it is worth knowing the rules that govern this process.

When does the workplace transfer take place?

Although the Labor Code uses the concept of "transfer of a workplace or part of it", this act does not contain a definition of this concept. The term defines the practice of applying the law. In the opinion of the jurisprudence, factual circumstances are important in this case - the fact whether there is a takeover of a specific asset substrate. However, the will of both employers is not essential. It is also not necessary for the taking over and the acquired employer to be aware that the transaction they are making means a transfer of the workplace.

This position was also taken by the Supreme Court in its decision of August 29, 1995, pointing out that:

Transfer of the workplace within the meaning of art. 231 § 2 of the Code of Civil Procedure also occurs when the current and taking over employers did not act in accordance with the achievement of this goal, but the assets and tasks of the workplace were actually taken over. [Judgment of the Supreme Court - Administrative, Labor and Social Insurance Chamber of 29 August 1995, I PRN 38/95].

If there is an actual takeover of assets and tasks by another employer, we are dealing with a transfer of the workplace, regardless of the type of transaction and the knowledge and will of both employers.

The jurisprudence also holds the position that a transfer of a workplace takes place when the transfer concerns tasks carried out by a given workplace, and not only the sale of the company or its part. The Supreme Court emphasizes that:

The assessment that a part of the workplace has been transferred to a new employer (Art. 23 [1] of the Labor Code) depends on the finding that he has actually taken over some of the tasks or tasks constituting the workplace, and thus to the extent that allows the performance of employee duties. It does not have to involve the acquisition of an enterprise or its part and does not depend on the type of legal transaction on the basis of which it is based. [Judgment of the Supreme Court - Chamber of Labor, Social Insurance and Public Affairs of 15 September 2006, I PK 75/06]

What are the obligations of the employer in connection with the transfer of the workplace?

In connection with the transfer of the workplace, the employer has a number of obligations, mainly informative and consultative. If there are no workplace trade unions at the employers, the existing and new employers shall inform their employees in writing about:

  • the expected date of transfer of the workplace or its part to another employer;

  • reasons for the transfer of the workplace or its part;

  • legal, economic and social implications for employees;

  • intended actions regarding the terms of employment of employees, in particular working conditions, pay and retraining.

The information should be provided at least 30 days before the expected date of transfer of the workplace or its part to another employer.

If the employers have a trade union organization, the current and new employers are required to provide the above-mentioned information in writing to the trade unions operating at each of them.

In addition, if the current or new employer intends to take measures regarding the terms and conditions of employment of employees, he is obliged to enter into negotiations with trade unions in order to conclude an agreement in this regard, within no more than 30 days from the date of providing information on these activities.

In the event of failure to conclude an agreement within this period, due to the inability of the parties to agree on its content, the employer may independently take action in matters relating to the terms of employment of employees, taking into account the arrangements made with trade unions, in the course of negotiations on the conclusion of an agreement.

However, according to the Supreme Court: Failure by the current employer to consult the transfer of a part of the workplace with trade unions (Article 26 [1] of the Act of 23 May 1991 on trade unions, uniform text: Journal of Laws of 2001, No. 79, item 854, as amended) does not make the transition to a new employer ineffective and his takeover of employees. [Judgment of the Supreme Court - Chamber of Labor, Social Insurance and Public Affairs of 15 September 2006, I PK 75/06]. On the other hand: The lack of a written notification of the employee about the subjective change of the employer (Art. 23 [1] § 3 of the Labor Code) does not constitute a serious breach of the basic obligations of the employer towards the employee. [Judgment of the Supreme Court - Chamber of Labor, Social Insurance and Public Affairs of 6 May 2003, I PKN 219/01].

What are the consequences of transferring the workplace?

The code structure of the workplace transfer provides that in the event of a transfer of the workplace or part of it to another employer, it becomes, by operation of law, a party to the existing employment relationships. This basic assumption has many further consequences, including the principle of continuity of the employee's seniority with a new employer.

The new employer has contractual relations with the taken over employees with the same content as before the transfer of the workplace. The working and pay conditions of employees remain unchanged.

Also in this case, the new employer's knowledge of who is the employee of the current employer is irrelevant. Entry into an employment relationship takes place even without the knowledge and will of both parties. An example is the judgment of the Supreme Court, which stated that: Failure to provide information on the full personal status of employees employed in the taken over workplace does not exclude an employee taking parental leave from the impact of Art. 23 [1] KP. [Judgment of the Supreme Court - Chamber of Labor, Social Insurance and Public Affairs of 6 February 2013, I PK 195/12]. The employee will therefore retain all the rights that she was entitled to in relation to the current employer.

At the same time, it should be remembered that in order for an employee to be taken over, the legal relationship must exist at the time of transfer of the workplace. This means that if the current employer terminated the contract with the employee before the establishment's transfer to the new employer, the employee may not, relying on the takeover of the establishment, demand the extension of the contract.

On the other hand, the employee is entitled to terminate the employment relationship without notice, with seven days' notice within 2 months from the transfer of the workplace or part of it to another employer. Termination of the employment relationship in this manner causes the employee the effects that the provisions of the labor law involve with the termination of the employment relationship by the employer with notice.

The transfer of the workplace also affects the validity and application of collective labor agreements. Within one year from the date of transfer of the workplace or part of it to a new employer, the provisions of the agreement to which they were covered before the transfer of the workplace or part thereof to a new employer shall apply to employees, unless separate regulations provide otherwise. The provisions of this agreement shall apply in the wording in force on the day the workplace or part of it is transferred to a new employer. The employer may, of course, apply more favorable conditions to these employees than those resulting from the existing agreement. After the expiry of the period of application of the current agreement, the conditions of employment contracts or other acts resulting from this agreement, which constitute the basis for establishing an employment relationship, shall apply until the end of the period of notice of these conditions.

In the case of other collective agreements and regulations, as a rule, the new employer is not bound by them.

In turn, art. 7 of the Act on the Company Social Benefits Fund indicates that in the event of the transfer of the workplace to the employer obliged to establish the fund, the fund of the acquiring employer takes over the funds, receivables and liabilities of the transferring employer fund. Similarly, these funds are taken over by the employer who is not obliged to create the fund, and the law obliges the employer to spend these funds for social purposes, but without the need to create the fund itself.

Transfer of a workplace and a cooperative employment contract

The employer, on the day of taking over the workplace or its part, is obliged to propose new working and pay conditions to employees who have previously performed work on a basis other than an employment contract and indicate a date, not shorter than 7 days, by which employees may submit a declaration of acceptance or refusal. accepting the proposed terms.

In the event of failure to agree on new working and pay conditions, the existing employment relationship shall be terminated upon the lapse of the period equal to the period of notice, counted from the date on which the employee submitted a declaration of refusal to accept the proposed conditions or from the date by which he could submit such a declaration.