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Białostockie Studia Prawnicze

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Białostockie Studia Prawnicze Zeszyt 29 nr 2

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Artykuły:

Emanuele Menegatti
Can a Basic Income Make the Digital Revolution More Sustainable and Inclusive?

DOI: 10.15290/bsp.2024.29.02.01

Abstract: We are currently unsure whether the digital revolution will herald the end of work or whether it represents another evolutionary phase, similar to previous industrial revolutions. However, the changes in work brought about by AI and automation are already exerting negative impacts on both employment and people’s income. In this context, this article delves into the potential role of social law in mitigating these adverse effects. With this objective in mind, the author advocates for a departure from our current model of social inclusion in favour of broader income support mechanisms. The author expounds on how a universal basic income could contribute to steering the digital revolution with the aim of facilitating a more inclusive and effective transition into the digital era.

Keywords: digitalization, income, social law, universal basic income, work

Zakres stron: 7-18

Jakub Tomsej
From Discrimination to Dismissal: Navigating Obstacles on the Path to Workplace Justice

DOI: 10.15290/bsp.2024.29.02.02

Abstract: This article explores the challenges faced by employees in the Czech Republic when seeking legal redress in cases of discrimination and unfair dismissal. It emphasizes the importance of accessible legal recourse as a means to rectify individual grievances and reinforce equitable employment practices. In the context of discrimination, the article discusses challenges such as low awareness of anti-discrimination rights and the ancillary nature of sanctions. Recommendations include aligning the Anti-Discrimination Act with the Civil Code, empowering NGOs or the Ombudsman to initiate lawsuits in the public interest, and raising awareness among potential victims. In the section on unfair dismissal, the article outlines the complex process involved in disputing terminations from an employee’s perspective. It discusses obstacles such as complex, costly, and lengthy legal procedures and the requirement for reinstatement. These challenges contribute to the low number of employment lawsuits in the Czech Republic. Recommendations for improvement include enhancing the visibility of court actions, providing free or subsidized legal advice, shifting the focus of lawsuits towards monetary compensation, promoting mediation, and expediting proceedings. The article identifies common challenges in discrimination and unfair dismissal cases in the Czech Republic, highlighting the need for reforms to improve access to justice, reduce financial barriers, expedite legal proceedings, and enhance the dissuasive impact of remedies. These reforms are seen as essential for creating a fair and equitable workplace environment for all employees in the country.

Keywords: discrimination, judicial redress, labour law, unfair dismissal

Zakres stron: 19-51

Krzysztof Baran
The Right of Trade Unions to Information in the Era of the Fourth and Fifth Industrial Revolutions

DOI: 10.15290/bsp.2024.29.02.03

Abstract: The dynamic technological transformations that are taking place in the third decade of the twenty-first century, described as the Fourth and even Fifth Industrial Revolutions, pose significant challenges for community partners who act in labour relationships. Transparency and the related right to information are some of the factors that define a democratic state under the rule of law. This also applies to labour relationships as widely understood. The regulations of collective employment law grant various rights in this respect to entities that represent staff, who may, among other things, demand information on the use of artificial intelligence by the employer in the work environment. In the Polish labour law system, the widest scope of competences in this regard is granted to trade unions. This article focuses on the legal and functional aspects that are related to the transfer of this type of data.

Keywords: artificial intelligence, Fifth Industrial Revolution, Fourth Industrial Revolution, right to information, trade unions

Zakres stron: 29-38

Teun Jaspers, Błażej Mądrzycki, Łukasz Pisarczyk
Collective Bargang in Technology-Based Employment

DOI: 10.15290/bsp.2024.29.02.04

Abstract: New technology has profoundly influenced the world of work. The use of technology brings advantages for all – employers, workers and their representatives – but also some risks and hazards for working people. Despite technological development, workers still need effective protection that will ensure safety and sustainable development. The legal framework for this protection, both at European and national levels, is still under construction. An important role in filling the regulatory gap may be also played by collective bargaining. Moreover, modern technologies open up new possibilities for social partners to build their capacity and organize the process of negotiations. However, collective bargaining in the area of tech-based work remains in statu nascendi. This article analyses the need for and the advantages of collective protection in tech-based employment, its role in improving working standards and the influence of new technology on industrial relations.

Keywords: collective bargaining, digitalization, new technology, workers

Zakres stron: 39-52

Krzysztof Stefański, Katarzyna Żywolewska
Lack of Transparency in Algorithmic Management of Workers and Trade Unions’ Right to Information: European and Polish Perspectives

DOI: 10.15290/bsp.2024.29.02.05

Abstract:The ‘black box issue’ is one of the biggest problems with algorithmic management. The lack of transparency in the operation and decision-making of AI is of greatest concern to those whose data is being processed (including employees). Trade unions, as the organisations that most represent the interests of workers, can play a big role here; however, they need to be empowered. There is a lack of legislation at EU and Member State level to set norms for this issue; the only country that has already introduced such legislation is Spain. The draft Polish regulation refers to the Spanish solutions and seems to be very interesting. It introduces the possibility for trade unions to obtain data from an employer on the operation of AI in relation to the algorithmic management of employees. The authors present this regulation against the background of EU recommendations and previous Polish legislation on the employer’s obligation to provide information. They also identify elements that need to be refined during the parliamentary process in order to make the regulation more effective in protecting workers’ rights.

Keywords: AI, algorithmic management, black box, trade unions

Zakres stron: 53-63

Agata Jurkowska-Gomułka, Anna Piszcz, Sofia Oliveira Pais
Collective agreements on working conditions of solo self-employed persons: perspective of EU competition law

DOI: 10.15290/bsp.2024.29.02.06

Abstract: The 2022 Guidelines of the European Commission on the application of EU competition law to collective agreements regarding the working conditions of solo self-employed persons apparently introduced a fresh approach towards collective agreements in a gig economy era. The main aim of this paper is to discuss whether the 2022 Guidelines are an appropriate tool to address the problems of solo self-employed persons (i.e. persons who are not in a formal employment relationship and who rely primarily on their own personal labour to provide services) from the perspective of EU competition law. To this end, we first present key competition problems related to collective agreements (section 1). Second, we analyse the regulatory framework for exemptions from competition law, with a view for a potential exemption relevant for collective agreements, as well as an approach to collective agreements in EU case law (sections 2 and 3). Third, the background for adopting the Guidelines, and their goals, is analysed (sections 4 and 5). Fourth, the Guidelines are discussed in more detail in sections 6 and 7 from the perspective of exemptions from Art. 101(1) TFEU. Finally, we examine the relationship between the Guidelines and a proposal for a platform work directive. The article attempts to verify the hypothesis that the Guidelines may be considered a pseudo-development.

Keywords: collective bargaining, competition law, digital platforms, solo self-employed persons

Zakres stron: 65-82

Aneta Giedrewicz-Niewińska, Viktor Križan, Jana Komendová
The Obligations of the Employer in the Implementation of Remote Work: The Examples of Slovakia, the Czech Republic and Poland

DOI: 10.15290/bsp.2024.29.02.07

Abstract: This text analyses the legal aspects of teleworking in Slovak labour law and remote working in Czech and Polish labour law. The text shows how Slovakia, the Czech Republic and Poland have used their experiences of employment during the COVID-19 pandemic in different ways. The basic difference is already apparent in the notions of remote working, teleworking and working from home. There are also some differences in the regulation of employers’ obligations related to the implementation of remote working. The legal regulation of remote working is in its formative stage, as evidenced by recent Polish and Czech labour-law changes. The analysis of the legal regulations of the three countries shows that remote working is a challenge. It is legitimate to analyse different legal solutions and share experiences between the countries. The text analyses the latest legal developments.

Keywords: agreement on remote work, employer’s obligations, remote work, telework, work–life balance

Zakres stron: 83-97

Qerkin Berisha, Aleksandra Klich
Remote Work Regulations in the EU, Poland and Kosovo with Some Considerations from the Perspective of the GDPR

DOI: 10.15290/bsp.2024.29.02.08

Abstract: The purpose of this article is to conduct a comparative analysis of remote work regulation in the EU, Poland and Kosovo, also with consideration of issues related to the processing of personal data during remote work. The authors aim to assess the specificities, strengths and weaknesses of both regulatory models, from the point of view of actual and future legal developments. Additionally, given the early stage of regulation, they seek to explore the applicability of EU experiences to Kosovo and to identify potential vulnerabilities that may arise under EU regulation. In this context, they aim to determine whether EU solutions should be considered as models for implementation in both Poland and Kosovo, as well as to analyse the risk of overregulation, which could impede certain employees from exercising their rights to remote work and potentially lead to inequalities in employment. The objective of the regulation should be to strike a balance between protecting personal data and ensuring equality in the workplace. Therefore, the authors try to answer the question of whether the protection of personal data could be subject to an abuse of rights by employers, who might use it as a pretext to deny certain groups of employees the opportunity to work remotely, which is particularly pertinent for individuals with special needs.

Keywords: data protection, GDPR, new technologies, remote working

Zakres stron: 99-117

Iwona Sierocka
Control of Remote Workers by Means of Artificial Intelligence

DOI: 10.15290/bsp.2024.29.02.09

Abstract: Remote work, by its very nature, is characterised by the performance of the duties of the employment relationship, in whole or in part, at a place chosen by the employee, at a time agreed upon with the employer. Despite the fact that the employee performs his/her work outside the employer’s place of business, he/she remains under the employer’s control. The issues under consideration here are the scope of this control and the manner in which it is carried out. In my deliberations, I focus on control performed with the use of algorithmic technologies, in particular artificial intelligence, for which a Regulation of the European Parliament and of the Council Laying Down Harmonised Provisions on Artificial Intelligence (Artificial Intelligence Act) was adopted on 23 June 2023.

Keywords: algorithmic management, artificial intelligence, remote work

Zakres stron: 119-129

Daniel Perez del Prado
The Challenges of Algorithm Management: The Spanish Perspective

DOI: 10.15290/bsp.2024.29.02.10

Abstract: This paper focuses on how Spain’s labour and employment law is dealing with technological disruption and, particularly, with algorithm management, looking for a harmonious equilibrium between traditional structures and profound changes. It pays special attention to the different actors affected and the most recent normative changes.

Keywords: algorithm management, artificial intelligence, digitalization

Zakres stron: 131-144

Maciej Etel
The Legal Situation of Operators of Essential Services and Digital Service Providers in the Provisions of the Act of 5 July 2018 on the National Cybersecurity System

DOI: 10.15290/bsp.2024.29.02.11

Abstract: The Act of 5 July 2018 on the National Cybersecurity System and its accompanying executive regulations have introduced into Polish law the provisions of the Directive of the European Parliament and of the Council of 6 July 2016 concerning measures for a high common level of security of network and information systems across the Union (UE) 2016/1148. The fundamental reason for these regulations was to establish a coherent system to ensure the cyber security of the Republic of Poland with accordance to standards adopted for European Union Member States. This paper presents the legal situation of operators of essential services and digital service providers that was created by the provisions of the ANCS. The ANCS not only identifies operators of essential services, digital service providers, and their assigned obligations, but also addresses the competent authorities’ tasks of supervising, inspecting and imposing penalties within the cyber security system. The findings, assessments and conclusions presented here are based on the interpretation of the provisions of the ANCS and are supported by prominent claims of academic representatives. The analyses contained within this paper aim to show that despite the comprehensible and contemporary ratio legis – which falls within the framework of pursuing the state of digital safety – the provisions of the ANCS require adjustments that acknowledge the legal situation of operators of essential services and digital service providers.

Keywords: cybersecurity, digital service providers, inspection, obligations, operators of essential services, penalty payments, supervision

Zakres stron: 145-162

Paulina Korycińska-Rządca
Trade Secrets in the Digital Age: How Do the Measures Provided for in EU Law Face the Challenges of Protecting an Employer’s Trade Secrets against Unauthorised Acquisition, Use and Disclosure by Its Employees?

DOI: 10.15290/bsp.2024.29.02.12

Abstract: One of the natural consequences of the development of technology is that an entrepreneur’s confidential information, including trade secrets, is commonly stored in electronic files. This form of information storage inevitably entails challenges in the area of its protection. The coronavirus pandemic has drastically accelerated the process of dissemination of new models of employment, in particular remote (distance) work and cloud working, and has made the protection of an entrepreneur’s secrets against unauthorised use even more complicated. This is due to the fact that in such models of employment, employees obtain access to their employer’s data remotely, which may decrease the employer’s level of control. To remedy this, employers may undertake various steps aimed at ensuring that their secrets are well protected; however, such actions may affect the free movement and mobility of workers. The purpose of this article is to verify how, in these circumstances, the measures provided for in EU law face the challenges of protecting an employer’s secrets against unauthorised use by employees and how they define the scope to which they can be applied without the abuse of employees’ rights and unjustified restrictions on their mobility. For that purpose, the author analyses in particular Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the Protection of Undisclosed Know-How and Business Information (Trade Secrets) against Their Unlawful Acquisition, Use and Disclosure. This research is based mainly on the dogmatic method of analysis.

Keywords: Directive (EU) 2016/943, employees, employment relationship, trade secrets

Zakres stron: 163-176

Maciej Nyka, Karolina Zapolska
The Impact of the DAC7 Directive on the Functioning of Platforms and Platform Operators, from the Perspective of the Legal Model of Their Collaboration with Individuals

DOI: 10.15290/bsp.2024.29.02.13

Abstract: In order to achieve the main objective of sealing the tax system, Council Directive (EU) 2021/514 of 22 March 2021 Amending Directive 2011/16/EU on Administrative Cooperation in the Field of Taxation (DAC7) introduces an obligation to report income obtained by sellers via a digital platform in one of the Member States. However, the implementation of the provisions of DAC7 in the field of reporting also has non-fiscal consequences. The DAC7 Directive interferes in the way sales platforms function, imposing additional obligations on them which are closer to models of cooperation in employer–employee relations than in B2B relations.

Keywords: administrative cooperation, B2B relations, DAC7 Directive, obligations, platform operators

Zakres stron: 177-193

Joanna Dorota Sieńczyło-Chlabicz
Commercialization of the Results of Research Carried Out by Public University Employees Working Remotely: de lege lata and de lege ferenda Conclusions

DOI: 10.15290/bsp.2024.29.02.14

Abstract: This study analyses the acquisition and commercialization of rights based on the results of scholarly activity carried out by employees of Polish public universities under the Act of 20 July 2018 – the Law on Higher Education and Science and their objects of commercialization. In addition, it is considered whether the institution of remote work introduced under the Act of 1 December 2022 amending the Labour Code and Some Other Acts is a tool that assists employees and universities in the process of the commercialization of knowledge in the digital age, facilitating the development of an innovative and entrepreneurial university, or, on the contrary, whether it may generate difficulties and costs for both parties to the employment relationship, i.e. the university as an employer and its employees.

Keywords: commercialization, innovative and entrepreneurial university, results of research activity carried out by employees, remote work

Zakres stron: 195-207

Jose Maria Miranda Boto, Elisabeth Brameshuber
The Digitalisation of Tools for Workers’ Representation Workers’ Representation Tools in Europe and Spain: A First Approach

DOI: 10.15290/bsp.2024.29.02.15

Abstract: The unstoppable digitalisation of work also brings with it alterations at the collective level of labour relations. On the one hand, the dispersal of the workforce entails the breaking of traditional ties of proximity, which engendered solidarity among workers. On the other hand, however, new technologies can contribute decisively to the development of representation activity, also being a fruitful field for collective bargaining. Through a synthetic examination of comparative law, several of these possibilities are presented, and how they fit with Spanish law is analysed. Among the subjects addressed are digital tools that can favour tasks in representation. In addition to the legislative dimension, the study takes into account the latest developments in jurisprudence and collective bargaining.

Keywords: collective bargaining, digitalisation, information and consultation, telework, workers’ representatives

Zakres stron: 209-221