Arrangements on the application of less favourable terms of employment of employees, by definition, should be introduced only in exceptional situations, but such a possibility has been provided for in the Labour Code and the employer may use it, under the conditions provided for in the Act, to use it.

Such a solution is a kind of option to worsen the current employment conditions of employees, which were specified in the employment contracts concluded with them, hence it is extremely important to read the conditions for introducing this type of derogation into the workplace.

The agreement on the application of less favourable employment conditions is a source of labour law within the meaning of Art. 9 of the Labour Code It is an exception to the operation of the labour law according to the principle of employee preference (Article 18 of the Labour Code) and to the need to consent to the employee’s consent to a change in the terms of the employment contract that is unfavourable to him (Article 42).

The act allows for a temporary modification to the detriment of employees and deterioration of contractual provisions without the knowledge of the interested parties (employees), who theoretically may not even know that negotiations on their terms of employment contracts are underway. However, this does not change the situation that the agreement referred to in the provision has the value of a source of law and that as a result of its adoption, contractual clauses are suspended and less favourable conditions are introduced in their place, while the new (worsened) employment conditions have semi-imperative nature, and the parties to the contract can therefore change them again to a more favourable one.

Pursuant to Art. 231a of the Labour Code, if it is justified by the financial situation of the employer, not covered by the collective labour agreement or employing less than 20 employees, an agreement may be concluded on the application of less favourable terms of employment than those resulting from employment contracts concluded with these employees, to the extent and for the duration of agreed upon.

Thus, the possibility of reaching an agreement that worsens the employment conditions of employees depends on the financial situation of the employer. The agreement may be introduced by an employer who is not covered by a collective labour agreement or employs fewer than 20 employees, and the condition for the admissibility of concluding the agreement is to define the scope and duration of less favourable conditions for employees.

The mechanism of concluding the agreement provides for the necessity for the employer to cooperate with the trade union organization (or employee representative office). According to the regulation included in Art. 231a § 2 of the Labour Code, according to the mechanism of agreeing an agreement on worse employment conditions and its introduction, there are provisions which constitute agreements concerning the suspension of the application of the provisions of the labour law referred to in Art. 9 1 §1-4 of the Labour Code. Thus, apart from the necessity to follow the same procedure as regards the agreement and its publication, it is also necessary to notify the agreement to the competent labour inspection authorities.

As for the essential elements that should be included in the agreement, it should be pointed out that the agreement on the application of less favourable terms of employment of employees should precisely define the scope of changes to the current content of the employment contract, while at the same time defining new terms of employment which will be applied to the employees.

However, the subject of the agreement may be a part of the content of the employment contract that has been agreed by the parties to the employment contract. However, those components of the content of the employment contract that result from generally applicable labour law provisions, including internal company regulations, will not be suspended. At the same time, the provisions of the contracts created after the introduction of the agreement may not be less favourable than the generally applicable provisions.

The agreement must specify the duration of the application of the worsened terms. According to the regulations, this period may not exceed 3 years. According to the assessment of practitioners, the agreement cannot be concluded for a period longer than 3 years, but also the period of suspension on the basis of several consecutive agreements concluded cannot exceed a total of 3 years.

The agreement, if it does not apply to all employees, must also clearly indicate who it concerns. There are no obstacles for the agreement to apply only to some employees, however, the employer must also remember that it may not violate the principle of non-discrimination and equal employment rights applicable in labour law.

The change of working and pay conditions as a result of the conclusion of the agreement takes place upon the entry into force of the agreement. The date of entry into force of the agreement should be specified by the parties in the content of the agreement. After the expiry of the agreement, also automatically, the terms of employment under the employment contract will resume.

Finally, it should be added that the agreement must be submitted to the relevant labour inspectorate for notification. For the agreement to be valid, the provisions do not require the approval of the labour inspection. The indicated obligation is for information only. Also, the employer’s failure to fulfil the obligation to submit the agreement to the labour inspector does not result in the agreement becoming invalid.

Source: https://poradnikprzedsiebiorcy.pl/-porozumienie-w-sprawie-mniej-korzystnych-warunkow-zatrudnienia

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