Przyszłość pracowniczego podporządkowania jako cechy konstrukcyjnej stosunku pracy

Abstract

The author of the foregoing study reflects on the future of the institution of the employee’s subordination defined mainly as submission of the employee to the authority of the employer in the work process. Since the very beginning of the labour law employee’s subordination has been described in the literature of the subject and judicial decisions as an inherent (necessary) constituent of the employment relationship. In spite of the ongoing technological development, and an increasing popularity of the modern varieties of work organisation and atypical forms of employment, which emphasize greater independence of the employee, the existing model of the employment relationship referring to the criterion of subordination should still be prevailing in the future. It should still constitute the basic and inherent structural feature which determines the existence of an employment relationship. The legislature de lege ferenda must, however, specify in the Labour Code, the minimum extent of the employee’s subordination. According to the author, such extent in any relationship is defined by the employer’s privilege to specify – by means of binding instructions – the employee’s duties. Clarifying the criterion of the employee’s subordination in the Labour Code in such way identifies on the one hand the employment relationship, allowing it to be distinguished from civil forms of employment, and on the other hand, takes into account the autonomy of employees without constituting an obstacle to the development of flexible forms of employment.