What about the workplace when changing employers? This is worth knowing!
The term “workplace”, although it sounds a bit archaic, formally means a combination of resources aimed at conducting business activity. In fact, even being part of a large company, the workplace operates almost independently and can be managed entirely by an outsourcing company. In the case of a takeover, the new entrepreneur undertakes to maintain the existing terms of employment of employees of the workplace, although it often happens that it tries to circumvent the regulations, e.g. by persuading existing employees to sign new contracts. What happens then?
Employees as a well-coordinated and trained team handling a specific business process are a tasty morsel on the market, as people are the greatest asset of most entrepreneurs – says Anna Wiluś-Antoniuk, legal counsel at the LeasingTeam employment agency, specializing in outsourcing of employees and HR services – fortunately, the labor law guards employees and the takeover results in continuity of employment, i.e. the durability of the same employment relationships, that existed at the original employer.
A metaphorical kiosk
A workplace is a rather strange concept, difficult to identify, a bit like the Yeti, or Bigfoot – says the LeasingTeam expert – This enigmatic term has long appeared in the provisions of the labour law, although since the political change in 1989 we have been reluctant to use its name. Associated with the socialist nomenclature of the “company canteen for employees”, this concept is dying out, reviving only in two types of discussions: about the company social benefits fund and the transfer of the workplace to a new employer. Discussions in the latter area affect employees more often than they think.
The Supreme Court explains that “an establishment” or “part of an establishment” are terms equivalent to the term “economic unit”1. It is a set of components that allows work to be performed in it2. My favorite personal example of a workplace is a newspaper kiosk: an organizationally separate place where sellers perform their assigned activities, which is usually part of a large company with a national reach, but could just as well be an independent small company that lives by supplying newspapers to the local community.
Workplace as part of the company
However, it is not always so simple and tangible to define the workplace or its part. Not every entrepreneur has a business structured into separate parts. However, in the activities of most entrepreneurs, metaphorical “kiosks” can be identified, which often change owners, and the employees employed in them – employers.
The Supreme Court3, in helping to define an establishment, suggests that in order to determine whether we are dealing with a permanently organized business unit that may constitute a permanent establishment, the type of enterprise, its assets and their value, customers associated with this unit, as well as the type of business conducted in the unit should be taken into account – explains Anna Wiluś-Antoniuk – The metaphorical “kiosk” of a large company producing anything (e.g. a plush Yeti, why not) will probably be its production department (i.e. the hall, production lines, folding and packing machines of these interesting toys, etc.), but also, for example, the accounting department. Employed accountants in a company producing stuffed animals, desks, computers, tasks and the “client” (i.e. the employer – the factory for which they keep the accounting books) also seem to be an organized economic unit that could operate independently on the market. The accounting department can therefore be a workplace or at least a part of it.
Outsourcing workplace
In a company providing services on the employment market, such as outsourcing of human resources to handle specific business processes, very often along with gaining a client, a workplace appears – says LeasingTeam’s legal counsel – By taking over e.g. a production line in a stuffed animal factory, the outsourcing service provider creates a unit in its structures intended in terms of the competence and skills of the staff for the production of stuffed animals. This unit also gains a customer, so the only thing it needs to be independent is the equipment (the production line from which ready-made cuddly toys jump off). However, by concluding an outsourcing agreement, the service provider usually obtains the right to use some of the service recipient’s equipment, and this is how a workplace is created that is no less tangible than a kiosk.
Plays of predatory competition
Organized “kiosks” of an entrepreneur providing outsourcing services are sometimes a victim of predatory competition. Hunting for good crews, trained and acquired by another entrepreneur, is therefore not as rare a phenomenon as the sight of Bigfoot. Apart from the fact that the takeover of the staff of another entrepreneur should be assessed negatively not only for ethical but also for legal reasons (as an act of unfair competition), it is also worth emphasizing that in general such a takeover will have the effect of taking over an organized part of the enterprise by a predatory acquirer within the meaning of Article 231 of the Labor Code – explains the expert – the result is continuity of employment, i.e. the durability of the same employment relationships that existed with the original employer, with the new employer.
Entrepreneurs hunting for the personnel of other entrepreneurs try to escape the rules of the Labor Code, persuading employees, for example, to terminate contracts with the first employer and sign them anew with the new employer. There are attempts among entrepreneurs who take over other people’s employees to create the impression that the transfer of the workplace did not take place, because by complete coincidence all those employed in, for example, handling the production of stuffed animals in company A decided to leave A and work in B. Fortunately, the courts in such cases are not easily deceived. There is no doubt in the case law that the transfer of an establishment or part thereof does not depend on a legal transaction between the employers (i.e., e.g. signing a contract for the sale of a part of the workplace), and the will of the parties as to the transfer of the workplace is not decisive 4. Therefore, it is possible to assume the rights and obligations of the predecessor, entering into employment relationships in his place, without actually wanting to. What matters is the effect.
New employer – old rules
By hunting for employees of your competitors, you can wake up “in the shoes” of your competitor, i.e. your previous employer – warns the LeasingTeam expert – counting on a simple takeover of a good crew on your own terms, you can become an employer of a crew with a large number of overdue vacation days, with active trade unions and other circumstances shaping the situation of employees differently than the entrepreneur taking over them could imagine.
Labour law favours employees and only fair competition, burdening market predators with the responsibility for continuing employment relationships after the transfer of the workplace to a new owner. The principle of continuation of employment means that the new employer takes over the employment contracts with the acquired employees in an unchanged form, with all the “benefits of the inventory”, which in particular means full responsibility for maintaining and exercising all acquired rights of the acquired staff.
1 Judgment of the Supreme Court of 18 April 2018, II PK 53/17.
2 K. Jaśkowski [in:] E. Maniewska, K. Jaśkowski, Labour Code. Commentary, ed. XI, Warsaw 2019, art. 23(1).
3 In the judgment of 19.10.2010, I PK 91/10 192.
4 Judgment of the Court of Appeal in Lublin of 30 June 2021, III AUa 378/21.
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