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Aleksander Adamus

Rechtsanwalt (Polen)
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Following the resolution of the Supreme Court, many employers pay their employees only one allowance for work on Sundays if no day off work is granted in return. This resolution has not become a legal rule, so it is not generally applicable. In its subsequent rulings to be issued in the future, the Supreme Court may take account of the doubts raised by numerous Polish labour law experts and may confirm the employee's right to two allowances. If such rulings are indeed issued, employers will have to pay the outstanding allowances for work on Sundays

Payment for Sunday work is still a controversial issue. In particular, it is not clear whether a person who works on Sundays and who does not get a day off in return for this by the end of an accounting period is entitled to one or two allowances.

In presenting this issue, we assume that the employee performs his/her official tasks on Sundays in the following circumstances:

  • the work is allowed (e.g. because the company operates a shift work system, which enables working on Sundays according to Article 151(10)(3) of the (Polish) Labour Code [LC]);
  • standard working hours apply (8 hours a day and, on average, 40 hours in, on average, a five-day working week); 
  • Sunday does coincide with a holiday, and 
  • the employee does not use the day off in return for work on a Sunday. 

What is the employee entitled to receive for work on Sundays? Day off or compensation

On principle, the employer should grant a day off to the employee who works on a Sunday or another non-working day. The day off should fall on one of six calendar days either preceding or following the Sunday or the non-working day on which the employee performs work. This ensures the compliance with the rule of an, on average, five-day working week. Granting days off must be scheduled in advance. 

If the employee cannot be granted a day off during the aforementioned period, he/she must receive it by the end of a given accounting period. Only when this option is not viable, the work on a Sunday may be compensated in the form of one or more allowances.

In such a case, two options are possible:

  1. work on a Sunday is included in the work schedule;
  2. work on a Sunday is not included in the work schedule.

Work on a Sunday is included in the work schedule

According to labour law, if the employee works 8 hours on a Sunday and the Sunday is his/her working day and if he/she does not receive any day off by the end of a given accounting period, then he/she is entitled to receive the following allowances:

  1. regular pay for each working hour in an eight-hour working day;
  2. allowance as per Article 151[11](2) LC, amounting to the full remuneration for each hour worked on a Sunday (Article 151[1](1)(1) LC); 
  3. as  the employee is not granted a day off for work on a Sunday, the first 8 hours of work will be probably classified as the so-called "weekly average overtime hours" (that is overtime hours due to exceeding the average weekly working time limit); a full-time employee may therefore be entitled to receive an allowance amounting to the full remuneration for each hour of work on a Sunday (Article 151[1](2) LC).

If the employee works more than 8 hours on a Sunday, he/she is entitled to the following allowances:

  1. regular pay for each working hour in excess of an eight-hour working day;
  2. allowance amounting to the half remuneration for each hour worked in excess of 8 hours based on Article 151[1](1)(2) LC (these are daily overtime hours), or time off in return for overtime hours (1-to-1 correspondence) at the employee's request (Article 151[2](1) LC), or time off work in return for overtime hours (1-to-1.5 correspondence) by default (Article 151[2](2) LC);
  3. allowance based on Article 151[11](2) LC, amounting to the full remuneration for each hour worked on a Sunday (Article 151[1](1)(1) LC), if the employee does not use the time off in return for overtime hours. 

Work on a Sunday is not included in the work schedule

According to polish labour law, if a full-time employee exceptionally works on a Sunday (for 8 hours) and the Sunday is not his/her working day (e.g. because he/she has been requested to remove a failure) and the employee does not receive a day off by the end of a given accounting period, then the employee is entitled to receive the following allowances:

  1. regular pay for each working hour in an eight-hour working day;
  2. allowance based on Article 151[11](2) Polish Labour Code, amounting to the full remuneration for each hour worked on a Sunday (Article 151[1](1)(1) LC);
  3. as the employee receives no day off on a Sunday, the first 8 hours worked on that day will be classified as weekly average overtime hours for which the employee is entitled to receive an allowance amounting to the full remuneration for each hour of work on Sunday (Article 151[1](2) LC). 

If the employee works in excess of 8 hours on a Sunday, he/she is entitled to the following allowances:

  1. regular pay for each working hour in excess of an eight-hour working day; 
  2. allowance based on Article 151[11](2) Polish Labour Code, amounting to the full remuneration for each hour worked on a Sunday (Article 151[1](1)(1) LC); 
  3. overtime allowance amounting to the full remuneration for each hour worked in excess of 8 hours (Article 151[1](1)(1) LC); – if the employee does not use the time off in return for overtime hours.

Controversies exist about the question whether in the above situations the employee also acquires the right to the allowance for work:

  • on a Sunday (full remuneration), as well as 
  • during weekly average overtime hours (full remuneration); 
  • or whether he/she should receive only one of the above amounts.

Only one allowance for work on a Sunday

This issue was addressed by the Supreme Court in its resolution of 15 February 2006 (file no. II PZP 11/05). It stated that “If the employer does not grant the employee, in a given accounting period, another day off in return for work performed on a Sunday or a holiday (provided that it is permitted to perform such work on those days), the employee is entitled to receive only one allowance stipulated in Article 151[11](2) in fine or 151[11](3) LC for each hour of such work.”

The issue boils down to defining the relationships between Articles 151[11](2) and 151[1](2) LC. In its statement of reasons to the aforementioned resolution, the Supreme Court opined that “the regulation included in Articles 151[11](2) and 151[11](3) LC does not contain references to Article 151[1](2) LC, and the latter, in turn, does not provide for such an allowance if the standard working hours are exceeded due to overtime work for which the employee should receive the allowance stipulated in Article 151[1](1). This means that Article 151[1](2) LC admits the granting of an allowance in the amount specified in Article 151[1](1) for each overtime hour worked in excess of the average weekly working time limit adopted in a given accounting period only if the average weekly working time limit is exceeded due to overtime work with respect to which the employee is not entitled to the allowance stipulated in Article 151[1](1) LC. At the same time, however, according to Article 151[11](2) in fine and Article 151[11](3), the employee should receive an allowance in the amount specified in Article 151[1](1) LC for each hour worked on a Sunday or a holiday (and not only for "typical overtime work") whenever the employer, in a given accounting period, does not grant the employee any days off work in return for the overtime work. For this reason alone the employee is not subject to the regulation contained in 151[1](2) LC, to which Articles 151[11] (2) and 151[11] (3) LC do not refer either.”

Surely only one allowance for work on a Sunday?

The arguments presented by the Supreme Court are not convincing. The fact that Article 151[11] (2) LC does not contain any references to Article 151[1](2) LC does not necessarily imply that the latter regulation does not apply if the conditions specified in the former regulation are met. 

Both regulations are contained in the same chapter of the Polish Labour Code (Chapter VI). One of them is to be found among the regulations concerning the work on Sundays and on holidays, the other – among the regulations concerning overtime work. In my opinion, there are no persuasive system-based arguments allowing the conclusion that any of those regulations is a special regulation. Article 151[11](2) LC does not exclude the application of Article 151[1](2) LC. Neither is the reference to Article 151[11](2) LC a precondition for its application. Therefore, a cumulative concurrence of these regulations must be assumed. Upon meeting the preconditions specified in those regulations, the employee should therefore be considered eligible for the allowances described in each of them. This is because these are different legal bases that apply in parallel.  

The reference to Article 151[1](1)(1) LC contained in Article 151[11](2) LC is of a merely technical nature. Its function is only to determine the amount of the allowance, which is evidenced by the phrase “allowance to the remuneration in the amount specified in Article 151[1](1)(1)”. A correct measure of the lawmakers that would put an end to any doctrinal doubts would be to define the amount of the allowance directly in Article 151[1](1)(1) LC, without references to other articles which cause serious interpretation difficulties. 

It is worth noting with respect to the analysed example that the only difference between the scheduled and non-scheduled work on Sundays in return for which the employee does not use a day off by the end of a given accounting period is the issue of whether the employee should be paid for work in excess of 8 hours (i.e. for overtime work exceeding the standard daily working hours). The allowance will amount to 100% in case of scheduled work, and to 50% in case of unscheduled work. This allowance is due in addition to the allowance for work on a Sunday amounting to 100%.

Remuneration for work on a Sunday – a summary

The employee is entitled to receive two allowances for work on a Sunday if he/she is not granted a day off by the end of a given accounting period and if on that day the employee performs overtime work that can be classified as weekly average overtime hours. This results first of all from the existence of two different legal bases for which the lex specialis/lex generalis relationship does not apply:

Article 151[11](2) LC - 100% allowance for work on a Sunday;

Article 151[1](2) LC - 100% allowance for weekly average overtime hours

Allowances to which the employee is entitled for work on a Sunday

  Scheduled work on a Sunday Unscheduled work on a Sunday
remuneration for work (8 h) regular remuneration, 100% allowance for work on a Sunday (151[11](2) LC in conj. with 151[1] (1) LC, 100% allowance for weekly average overtime hours (Article (151[1](2) LC, regular remuneration, 100% allowance for work on a Sunday (151[11](2) LC in conj. with 151[1] (1) LC, 100% allowance for weekly average overtime hours (Article (151[1](2) LC
remuneration for work (> 8 h) regular remuneration, 100% allowance for work on a Sunday (151[11](2) LC in conj. with 151[1] (1) LC, 50% allowance for overtime hours worked on a day other than that defined in Article (151[1](2) LC Article 151[1](2) LC regular remuneration, 100% allowance for work on a Sunday (151[11](2) LC in conj. with 151[1] (1) LC, 100% allowance for overtime hours on a work-free Sunday (Article (151[1](1) LC)

If you are interested in detailed information on this subject or other polish labour law issues, we will be glad to help. Our attorneys-in-law also offer legal advice in Poland on other issues. They are at your service in Rödl & Partner offices in Gdansk, Gliwice, Cracow, Poznan, Warsaw, Wroclaw