Due to the current economic situation in our country, more and more employers are facing obstacles when it comes to carrying on with their business activities. The most frequent reason for this is the lack of regular supplies of raw material, which comes mainly from China. In such situations, the employer faces a dilemma as to what to do next with employees who are ready to perform their duties but cannot perform them for reasons attributable to the employer.
In the above-described situation, Article 81 of the Labour Code, which regulates the institution of downtime, will apply. According to the cited act, “if, in the period of any non-performance of work, an employee was ready to perform such work but was prevented from doing it by reasons of the employer, such employee shall have the right to remuneration according to their individual monthly or hourly rate of pay and if such component of remuneration has not been identified in the specification of the conditions of remuneration, 60 per cent of the remuneration. However, under no circumstances may such remuneration be lower than the amount of minimum remuneration for work determined under separate provisions.”
In other words, remuneration in the amount of 100% of the remuneration is paid when an hourly or monthly rate is specified in the contract of employment (this applies to employees paid at a fixed hourly rate, e.g. PLN 20 per hour or at a fixed monthly rate, e.g. PLN 3 thousand per month – these employees will receive these pay rates also during downtime).
However, 60% of the remuneration is paid if the above-mentioned remuneration component has not been identified when determining the terms and conditions of remuneration (this applies, among other things, to employees who receive piecework wages or commission pay, i.e. pay determined as a rate for the output of products manufactured or as a percentage of revenue/income /profit).
In any case, however, the remuneration in question may not be lower than the minimum remuneration for work, which is determined by separate regulations.
In accordance with the ministerial interpretation of said provisions, I indicate that the necessity to close down the workplace in order to counteract COVID-19 will constitute a reason concerning the employer – even though it will be a reason not attributable to the fault of the employer (similarly to a power cut in the city, including the workplace, which prevents work, or a flooding that flooded the workplace etc.).
In the case of "own employees", the payment of remuneration does not pose any special interpretation problems, whereas in the case where the employer (a user-employer) employs temporary employees (whose employer is a temporary employment agency), the payment of the downtime pay by the user-employer to the temporary employees becomes more complicated.
The provisions of the Act on temporary work do not regulate the rules of payment of remuneration to temporary employees in case of downtime at a user-employer, nor does the Labour Code regulate these issues.
It should be noted that there are two opposing views in the legal doctrine regarding the obligation of the user-employer to pay remuneration to temporary employees in case of downtime. Whereas, one should adopt the position that the user-employer will be obliged to pay the employment agency the remuneration for the temporary employees, also during downtime.
In the case of downtime, the obstacle to the performance of work remains on the side of the user-employer and is related to the work process organised thereby. As a result, it is the user-employer who bears the consequences of the downtime, as the one obliged to pay the agreed remuneration to the temporary employment agency.
Non-performance of work due to downtime, even in the context of the equal treatment of permanent employees and temporary employees, should be a circumstance that affects the level of remuneration to be paid by the agency to the temporary employee. The scope of the risk borne by the user-employer will depend on how the remuneration paid to the agency is determined. The employer bears the risk to a greater extent if the remuneration is fixed. However, another solution is also possible, i.e. the one consisting in linking the amount of said remuneration to the actual remuneration paid to the temporary employee, which will automatically, in the event of such a disturbance, affect also the extent of the encumbrances borne by the user-employer.Should you have any doubts or questions, we remain at your disposal. For more information, please contact attorney Mateusz Pergałowski (email@example.com).