The Act on special solutions related to preventing, preventing and combating COVID-19, other infectious diseases and crisis situations caused by them (Journal of Laws of 2020, item 374 as amended (hereinafter referred to as “Tarcza”)), passed on 31 March 2020, introduces a number of legal solutions – in many areas of social life. Most of them are aimed at supporting Polish entrepreneurs to cope with the difficult situation caused by numerous sanitary restrictions during a pandemic.
As a consequence of the reduction of working hours, the employee’s remuneration may not be lower than the minimum wage for work including working hours.
The adopted regulation is not particularly extensive. Nevertheless, it may raise questions of interpretation. First of all, they arise as to whether the possibility of reducing working hours applies to all employees – regardless of their working hours.
Looking at the provisions of Tarcza, the position should be taken that the special entitlement contained in Article 15g(8) will be applied only to those employees who are employed more than 0.5 full-time. In other words, employees who are employed on 0.5 or less hours cannot be covered by the 20% reduction. In their case, in order to reduce working hours, there would be a need to apply individual notice of termination of the employee’s working and pay conditions by submitting an appropriate notice of change.
The impossibility of covering all employees with a 20% reduction in working time will result from the literal wording of the Tarcza regulations. Since it is possible to reduce an employee’s working time to a maximum of 0.5 hours, as evidenced by the provision “no more than 0.5 hours”, under no circumstances can an employee, who already has such a working time, “go down” below this level. This would go beyond the Tarcza’s ban, which expressly prohibits working hours from falling below 0.5 hours. This conclusion is certainly not altered by the final part of Article 15g(8) of the Tarcza which states that working time must be taken into account. It concerns the issue of remuneration for work due to the employee and not the proportional reduction of time itself. Therefore, it can be said that when adopting the Tarcza, it was decided to include in its provisions only those employees who are a more significant financial burden for the employer.
A separate issue remains the matter of remuneration for the work of an employee due to him/her as a result of a 20% reduction in the working time in accordance with the Tarcza Provisions.
In simple terms, it can be said that as a result of a 20% reduction in working time, an employee will retain the right to a 20% lesser salary – according to the new working time. If an employee was paid the minimum salary when full-time, as a result of the Tarcza, he or she will now have 80% of his or her working time – the same as his or her previous salary. In other words, he should receive 80% of the minimum salary for work. This is because the legislator has indicated that “the salary cannot be lower than the minimum wage for work (…), including the working hours”. Taking into account the working time indicates this. An employee receives from the employer a minimum amount of time, as it results from the regulations, taking into account that he has to devote 20% less time to work, for which he must be entitled to 20% less remuneration.