Can shops operate on 12 November 2018?
The President of Poland signed a law establishing 12 November 2018 as a public holiday. It has only a few articles and deals with an individual case, and yet it gives rise to a debate whether 12 November 2018 is covered by trade restrictions. Despite an opposite position of the National Labour Inspectorate and the Ministry of Family, Labour and Social Policy, it seems that shops may open if retail staff are employed on the basis of civil contracts or works in shifts, or there are other exceptions to the work ban on non-working days specified in Art. 15110 of the Labour Code.
Interpretation doubts arise from discrepancies between the wording of the special law (Act of 24 October 2018 on the Establishment of a National Holiday on the Occasion of the Hundredth Anniversary of Regaining Independence of the Republic of Poland) and the intention of the Senate expressed in the justification of the resolution adopting amendments to the text of the bill originally adopted by the Sejm.
The act states that 12 November 2018 is a holiday and a non-working day. Additionally, it provides that healthcare services in hospitals and outpatient clinics are to be provided on that day in the planned order and access to pharmacies is to be provided by pharmacies on duty. However, in the final wording adopted by the Sejm and signed by the President, the act does not contain any provisions concerning trade restrictions on that day.
Deletion of Art. 3 does not restrict trade
In its original wording adopted by the Sejm and forwarded to the Senate, the Sejm expressly provided in Art. 3 that on 12 November 2018 there are no restrictions under the Trade Restrictions Act (Act on Trade Restrictions on Sundays, Public Holidays and Certain Other Days). Therefore, it was assumed that 12 November was to be a trading day. However, the Senate passed an amendment deleting that provision, and the act was finally adopted with this amendment by the Sejm and signed by the President.
The Senate’s intention was that trade restrictions would apply on 12 November 2018. According to the justification of the Senate’s resolution to adopt amendments, the deletion of Art. 3 from the original draft was aimed at ensuring that on 12 November 2018 the general trade restriction rules would apply, the same as those in force on Sundays and other public holidays. The Senate shared the view of social partners representing retail workers that “retail workers must not be treated worse than workers in other sectors of the economy.” In the Senate’s view, in the case of the one-off holiday there was no substantive justification for departing from the views and ideas of the Parliament when it adopted the Trade Restrictions Act.
For several days, the media have repeatedly raised the justification for the Senate’s resolution, stating that as a result of the adoption of the Senate’s amendments to the bill on 12 November, trade on that day will in principle be banned. A joint statement of the National Labour Inspectorate and the Ministry of Family, Labour and Social Policy published on 8 November 2018 is also based on this justification. According to that statement, the amendment by the Senate and its adoption by the Sejm will implement the work restrictions at retail outlets on Sundays and public holidays as specified in the Trade Restrictions Act. Apart from referring to the justification of the Senate’s resolution, this interpretation does not provide any analysis of the adopted provisions or the Trade Restrictions Act. It is also not binding on businesses.
12 November is not a holiday within the meaning of the Trade Restrictions Act
In my opinion, inclusion of 12 November 2018 in the scope of the Trade Restrictions Act is not justified by the wording of the relevant provisions. The Trade Restrictions Act provides for work restrictions at retail outlets on Sundays, holidays and certain other days, but 12 November 2018 does not fall into any of these categories, including holidays within the meaning of the Trade Restrictions Act. Only holidays specified in Art. 1(1) of the 1951 Act on Non-Working Days are considered to be holidays within the meaning of this act, and 12 November 2018 is not listed there. The holiday on 12 November 2018 was established by a separate act which did not involve any amendment to the 1951 Act on Non-Working Days.
This means that on 12 November 2018, persons hired under employment contracts may perform work at retail outlets, so long as the conditions specified in Art. 15110 of the Labour Code, which provides for exceptions to the general principle of a work ban on non-working days, are met. For example, work in the shift system could be such an exception. On 12 November 2018, it is also possible to entrust work at retail outlets to persons hired under civil contracts.
Dr Marta Derlacz-Wawrowska, attorney-at-law, Employment practice, Wardyński & Partners