The terms of determining employees’ working hours in a reference period that includes a public holiday falling on a non-working day. K 27/11
The challenged provision infringes the constitutional principle of equality, as it introduces groundless differentiation as regards the number of non-working days to which employees are entitled.
At the hearing on 2 October 2012 at 1.00 p.m., the Constitutional Tribunal considered an application, submitted by the National Commission of the Independent and Self-Governing Trade Union Solidarność (Solidarity), with regard to the terms of determining employees’ working hours in a reference period that includes a public holiday falling on a non-working day.
The Constitutional Tribunal adjudicated that Article 130(21) of the Act of 26 June 1974 - the Polish Labour Code: is inconsistent with Article 32(1) of the Constitution as well as is consistent with Article 66(2) of the Constitution. As to the remainder of the application, the Tribunal discontinued the proceedings.
Pursuant to Article 14 of the Labour Code and Article 66(2) of the Constitution, all employees shall have the right to statutory non-working days. Therefore, a statutory restriction on the number of non-working days in a given reference period should, to the same extent, affect all workers, as well as should be based on reasonable, objective and predictable criteria.
The number of non-working days in a given reference period could vary for different groups of employees if, on the basis of the provisions of law, it were possible to single out the groups of employees who, due to personal characteristics or type of work, could be entitled to a larger or lower number of non-working days than the other employees.
Introducing different numbers of non-working days to which employees are entitled on the basis of a working time schedule adopted by a given employer does not appear to be reasonably justified. The criterion for introducing such differentiation, which has been adopted by the legislator, arises neither from employees’ personal characteristics nor from their type of work. In the view of the Constitutional Tribunal, introducing differentiation into employees’ legal situations as regards their right to a non-working day in lieu of a public holiday, depending on whether the public holiday falls on a non-working day according to a working time schedule in an average five-day working week, or whether it falls on a day being a working day according to the said schedule, is not justified by the needs and interests of the national economy. Budget considerations may not justify discrimination.
Relying on centuries-old traditions, the legislator introduced, or re-introduced, the holiday of Epiphany as an additional statutory non-working day. However, at the same time, he foiled the effects of re-introducing that public holiday by depriving – in breach of the principle of equal treatment – certain groups of employees of their right to an additional non-working day, even when the public holiday fell on a non-working day according to a working time schedule, which they had been granted hitherto.
The challenged regulation is not justified by constitutional principles, and in particular by the principle of social justice. What follows from the jurisprudence of the Constitutional Tribunal is that there is a close relation between the principle of equality before the law and the principle of social justice. The two principles, to a large extent, overlap one another. The principle of social justice requires, in particular, that the subjects of rights and obligations which share a common significant characteristic should be treated equally. Introducing differentiation into the situations of the subjects of rights and obligations is admissible in the light of the principle of equality if it serves the purpose of implementing the principle of social justice. Consequently, unfair differentiation is prohibited. Also, the Tribunal indicated that if the division of interests and the resulting division of people resulted in unfair differences, then the said differences were regarded as inequality. The division of interests in the present case – the right to a non-working day in lieu of a public holiday, and the resulting division of employees into those who are entitled to that right, if the public holiday falls on a working day according to a working time schedule, and those who are not entitled to that right, if the public holiday falls on a non-working day according to a working time schedule – is based on an arbitrary differentiation criterion, and thus it constitutes unfair and discriminatory differentiation for the latter group of employees.
In Article 130(21) of the Labour Code, the legislator infringed the constitutional principle of equality, by introducing groundless differentiation as regards the number of non-working days to which employees were entitled, on the basis of a differentiation criterion that could not be reasonably justified.
Moreover, the Constitutional Tribunal stated that, pursuant to Article 1 of the Act on Non-Working Days, Sundays and public holidays were non-working days. Since the Constitution does not determine that non-working days are Sundays and public holidays, but leaves that issue to be decided by the legislator, it should be stated that, regardless of the function of public holidays and Sundays as non-working days, the essence of the right guaranteed by Article 66(2) of the Constitution is the right of employees not to work on that day. However, the said right may be restricted in accordance with Article 31(3) of the Constitution, by obliging certain groups of employees to work also on Sundays or public holidays.
In the case where a non-working day resulting from an average five-day working week overlaps with a public holiday falling on that particular day, regardless of the fact whether it is be used for rest, the celebration of the public holiday, or other purposes which are important for a given employee, the essence of the right to statutory non-working days, which is guaranteed by the Constitution, i.e. refraining from working, remains intact. Therefore, the challenged provision does not infringe “the essence” of a non-working day.
However, doubts remain as to whether refraining from working on a given day may be regarded as the exercise of the rights arising for two different reasons, namely because of: a public holiday and a non-working day resulting from an average five-day working week. Due to the fact that the Constitutional Tribunal was bound by the scope of the application, the assessment of the system of limiting non-working days, granted in accordance with statutes - which entails shortening working hours in the case of overlapping days which, on the basis of a statute, should result in a non-working day (a public holiday, a Sunday, a non-working day resulting from an average five-day working week) - was not possible.
Moreover, the applicant had not proved that, by introducing the challenged provision, the legislator had exceeded the boundaries of his freedom with regard to shaping the content and scope of the right to statutory non-working days; thus, in that regard, the presumption of constitutionality of the challenged provision had not been overturned.
The hearing was presided over by the Vice-President of the Constitutional Tribunal, Judge Stanisław Biernat, and the Judge Rapporteur was Judge Andrzej Wróbel.
The judgment is final and its operative part shall be published in the Journal of Laws