The basic and comprehensive regulation regarding the rights and obligations of employers and employees in the private sphere is the labor code. However, the legislator sometimes decides to exclude certain issues and to regulate them in separate acts due to the specificity of certain relations or professions. The Labor Code is then applied in a subsidiary way. This type of regulation was also applied to the drivers’ working time, which applies to the Act of 16 April 2004 (hereinafter referred to as’ the UCPK ’ ). This act has aroused controversy almost from the beginning of its validity. The first problems concerned the proper application of the labor code, and specifically regulations on business travel. The question whether a professional driver has a business trip within the meaning of the LC , caused serious rulings and found a response only in the resolution of the composition of seven Supreme Court Justices dated 19 November 2008 r. (reference number , file: II PZP 11/08), according to which „the driver of international transport who travels as part of the performance of the agreed work and under the contractual area as a place of work is not on a business trip in meaning of art. 775 § 1 of thekp . „
The aforementioned state of affairs changed the amendment of ucpk , introducing a legal definition of the business trip of drivers and requiring the application of Art. 775 pairs 5. This paragraph refers to par. 3 then referring to parish 2 recipe. According to the above:
- § 2. The minister competent for labor issues shall determine, by way of a regulation, the amount and conditions for determining entitlements due to an employee employed in a state or local government budgetary unit, for a business trip within the country and outside the country. The regulation should in particular determine the amount of the diet, taking into account the duration of the journey, and in the case of travel abroad – the currency in which the diet will be determined and the limit for accommodation in individual countries, as well as the conditions for reimbursement of travel, accommodation and other expenses.
- § 3. The conditions for paying a business trip to an employee employed by a different employer than the one mentioned in § 2 shall be specified in a collective agreement or remuneration regulations or in a contract of employment, if the employer is not covered by a collective agreement or is not obliged to remuneration regulations.
- § 5. If the collective labor agreement, remuneration rules or employment contract does not contain the provisions referred to in § 3, the employee is entitled to receivables to cover travel expenses according to the regulations referred to in § 2.
Such a construction consequently creates a multi-level cascade appeal, finally referring to the regulation of the Minister of Labor and Social Policy of 29 January 2013 on the receivables due to an employee employed in a public or local government budget unit for a business trip (hereinafter referred to as the business travel regulation) ). This regulation provides that the employee is entitled to reimbursement of accommodation costs according to the invoice from the hotel or other facility in accordance with the limits annexed to the regulation or, if the employee fails to submit the relevant bill, a lump sum of 25% of the limit. The above standards do not apply if the employer provides the employee with free accommodation. The expression free accommodation has not been left in clarified, which resulted in another wave of discrepancies. On this ground, two basic jurisprudence lines were created. Some adjudicating teams assumed that the driver’s cabin can not be considered as a general rule or is not a free night’s accommodation – it is necessary to individually examine the conditions prevailing in it. This view is justified in particular by the Regulation (EC) of the European Parliament and Council no 561/2006 from on March 15 2006 which states that: 'daily rest periods and reduced weekly rest periods away from base may be used in a vehicle, as long as it has a suitable place to sleep’. So if we identify „free accommodation” and „adequate place to sleep”, we come to the conclusion that the driver’s cabin can free accommodation within the meaning of the regulation on business travel, as long as it meets the relevant requirements.
The second case-law categorically excludes the possibility of the driver’s cabin being considered free accommodation regardless of the conditions prevailing in it. Such a decision is based on the assumption that the regulation on business travel ultimately regulates the situation of employees in the budget sphere, and thus it is impossible to recognize that an adequate place to sleep will be the car’s cabin. Free accommodation means a hotel or similar facilities. With this interpretation, the Supreme Court also agreed in the composition of 7 judges of 12 June 2014 (file reference: II PZP 1/14), declaring that the notion of „free accommodation” and „adequate place to sleep” can not be equated , therefore, the car’s cabin, even the best prepared, does not meet the definition of „free accommodation” within the meaning of art. 9 of the Regulation on receivables from business trips. The resolution did not obtain the legal principle in truth, but the undeniable view expressed in it became the dominant one.
Consequently, the understanding of the regulations presented by the Supreme Court resulted in the necessity of incurring significant costs by employers who were obliged to pay the driver the accommodation costs for the previous years. The dissatisfaction of employers and their conviction that this interpretation is incompatible with the Constitution of the Republic of Poland ultimately led to the judgment of the Constitutional Tribunal of 24 November 2016 ( file no . K 11/15). The verdict concludes that Art. 21a ucpk in connection with art. 77 5 kp in relation to art. 16 of the regulation on business travel from Art. 2 The Constitution.
The Court agreed with the applicant, Association of Employers „Transport and Logistics Poland”, that the construction creating a multi-stage cascading appeal is incompatible with the Art. 2 The Constitution is the principle of clarity and precision of the regulations and makes the regulation inadequate to the actual states to which it is to be applied. The Court emphasizes that the principle of a democratic state of law results from the principle of citizens’ trust in the state and law, and the so-called principles of correct legislation according to which the regulation must be language-correct, and therefore clear and precise, thanks to which, without the use of complicated interpretations, the addressee and the content of the norm can be determined. Not every ambiguity is obviously a violation of the Constitution – it must exceed a certain level, be qualified. IN in the case at hand, the Tribunal determined that, based on the challenged provisions, it is impossible to determine the standard’s instructions simply and unambiguously, which indicates the unconstitutionality of the provision. At the same time, in the justification of the judgment, it was pointed out that in the case of a legal reference to referral, which refers to the regulation, it is not possible to determine the hierarchical position of a given norm. Therefore, there is a serious breach of the principles of correct legislation.
What’s more, employers acting in the belief that the vehicle cabin is a suitable place to sleep have allocated considerable resources to adapt the vehicles accordingly. This conviction was created by min. due to common practice, the case law and European law. The law should not mislead citizens and they should not bear the negative consequences of acting in accordance with the law. The provisions of the regulation on business travel in the sense given by resolutions of the Supreme Court violate in this respect the principle of citizen’s trust in the state and the law, and thus are unconstitutional.
Another objection to the questioned construction concerns its inadequacy to the actual situation and violation of the principle of equality. Article 32 of the Constitution did not in fact constitute a model of control established by the applicant (which the Tribunal is bound), but the lack of equality also affects the assessment from the point of view of art. 2 of the Constitution. A situation in which non-similar entities (drivers and budget employees) are treated in the same way and at the same time similar entities (drivers and other mobile workers) – in a different way, is discriminatory. The Court emphasizes that it is possible to effectively and lawfully create a separate category: „business trip by drivers”, but it would have to be connected with a separate regulation taking into account the specificity of this profession. Reference to the provisions concerning a completely different sphere of relations results in the inadequacy of normalization and many practical problems, e.g. an interpretation of the term „free accommodation”, whose interpretation raises doubts only in relation to professional drivers.
Finally, the Court considered that the uncertainty of the challenged provisions is qualified their interpretation causes many difficult to remove doubts. These doubts caused a significant increase in the cost of labor (employers additionally had to reimburse employees for business trips from previous years).Therefore, art. 21a ucpk was declared unconstitutional.
In passing, the Court noted that the uncertainty as to whether the professional driver is traveling at all and whether the vehicle’s cabin has been free of charge has been in place for many years and the rational legislator should have normalized this matter much earlier. At the same time, the verdict is recalled by the EU regulation, which aims to improve road safety and social conditions of drivers, and which recognizes the driver’s cabin as a place suitable for night rest. If the Polish legislator wanted to introduce higher than the EU standard, he should do it clearly and without any doubt.
In conclusion, it is worth mentioning the effects of the judgment of the Constitutional Tribunal in the jurisdiction of the Supreme Court and, in fact, of the absence of any effects. As a consequence of the judgment of the Constitutional Tribunal from the legal basis disapplied the legal basis referring to the regulation, under which lump sums were granted. The Supreme Court (at least in the judgment of February 21, 2017, file reference: I PK 300/15) seems to omit this fact – it continues the case-law line from before the judgment of the Constitutional Tribunal and orders the payment of receivables due to a business trip. Therefore, it is difficult to predict how the legal situation of professional drivers will ultimately shape in terms of their working time and business trip, and whether the legislator will decide to regulate this matter more precisely.