波兰关于公司破产情况下工人债权保护.doc

POLANDAct of 29 December 1993, concerning the protection of workers claims in the event of the insolvency of their employer (Dziennik Ustaw, 4 January 1994, No. 1, pp. 1-4, Text No. 1).Table of contents CHAPTER I. GENERAL PROVISIONS CHAPTER II. SCOPE AND PROCEDURE FOR DISCHARGING CLAIMS PAID BY THE GUARANTEED WORKERS BENEFITS FUND CHAPTER III. ORGANIZATION AND FINANCING OF THE GUARANTEED WORKERS BENEFITS FUND CHAPTER IV. AMENDMENT OF APPLICABLE PROVISIONS, AND TRANSITORY AND FINAL PROVISIONS CHAPTER I. GENERAL PROVISIONSSection 1.This Act governs principles and scope of the protection of workers claims which cannot be paid because of the insolvency of an employer. Section 2.(1)For the purposes of this Act, the term employer means an individual or an organizational unit employing workers in connection with economic activity, with the exception of establishments and auxiliary work of units under the state budget. (2)The provisions of this Act shall not apply to an employer who cannot be declared insolvent and cannot be liquidated pursuant to separate provisions. Section 3.(1)For the purposes of this Act, insolvency of the employer shall take place where, in accordance with the Insolvency Act: (i) the employers insolvency was declared; (ii) a demand to declare the insolvency of the employer was refused because a creditor had not paid an advance against the costs of the proceedings; (iii) a demand to declare the insolvency of the employer was refused because its assets were clearly insufficient even to cover the costs of the proceedings; (iv) insolvency proceedings were discontinued, because: o (a) bankruptcy assets were insufficient even to cover the costs of the proceedings; o (b) a creditor, at whose demand the insolvency was declared, did not pay an advance against costs of the proceedings and no funds were available to cover these costs. (2)For the purposes of this Act, insolvency of the employer shall also take place where workers claims cannot be paid: (i) in circumstances under which, in accordance with provisions governing economic activity, the basis is given for: o (a) deletion of the registration of such an activity by an individual from a register of economic activity; o (b) withdrawal of a concession for carrying out economic activity; (ii) because of a lack of financial means necessary for instituting liquidation proceedings. (3)The Minister of Labour and Social Policy, in consultation with the Funds Board, referred to under section 15, may extend by order the application of this Act to other cases of insolvency of the employer. Section 4.(1)In the event of non-payment of workers remuneration for work by reason of temporary financial difficulties of the employer which extend for more than one month, the Minister of Labour and Social Policy, in consultation with the Funds Board may, at his or her own initiative, upon the application of a trade union representing such an employers employees, or upon the application of the employer, order payment of a lump-sum benefit to workers equivalent to the amount of the unpaid remuneration. Where there is no trade union representing the workers employed by the employer, such an application may be filed by any trade union organization. (2)The lump-sum benefit shall be paid from the Guaranteed Workers Benefits Fund, established under section 12, referred to hereafter as the Fund. The amount of the benefit paid to a worker may not exceed an average monthly remuneration in a preceding quarter基金的垫付不超过月平均工资, from the date of its declaration by the President of the Central Statistical Office in the Official Gazette of the Republic of Poland Monitor Polski. (3)The lump-sum benefit shall be paid by a director of a voivodship labour office, where the headquarters of the employer referred to under subsection (1) is located, on the basis of a list drawn by the employer of workers who have not received remuneration. The provisions of section 10 shall apply where appropriate. (4)The provisions of subsections 1-3 can only be applied once to the same employer.Section 5.(1)Provisions of this Act shall apply to workers of the insolvent employer, his former workers and members of the family of a deceased worker or of a former worker who is entitled to a survivors pension. (2)Provisions of this Act concerning workers shall apply where appropriate to individuals who perform paid work on a basis other than an employment relationship if they are covered by compulsory social insurance in respect of this work. (3) The provisions of subsections (1) and (2) shall not apply to a spouse of the employer or to those persons who are relatives through consanguinity or marriage. (4) For the purposes of subsection (3), the term relatives means children, children of a spouse, adopted children, siblings, parents, stepmother and stepfather, adopting persons, grandchildren, grandparents, sons-in-law and daughters-in-law, sisters-in-law and brothers-in-law.CHAPTER II. SCOPE AND PROCEDURE FOR DISCHARGING CLAIMS PAID BY THE GUARANTEED WORKERS BENEFITS FUNDSection 6.(1)In the event of insolvency of the employer, workers claims that are not satisfied shall be paid from the Fund. (2)The following shall be paid from the Fund: (i) compensation in the form of a lump-sum granted on the basis of provisions concerning cash benefits in respect of employment accidents and occupational diseases to a worker or members of a family of a deceased worker - in the full amount; (ii) remuneration for work, remuneration for a period of work stoppage that is not the fault of the worker, sickness allowance calculated on the basis of wages, as well as a compensatory benefit paid to a worker under provisions concerning benefits in respect of employment accidents and occupational diseases - for the period not exceeding three months preceding the date of the beginning of insolvency or the date of termination of an employment relationship. Benefits paid from the Fund within a one-month period cannot exceed average monthly remuneration, as referred to under subsection 4(2). (3)The Minister of Labour and Social Policy, in consultation with the Funds Board, may extend by order the scope of workers benefits to be paid from the Fund and prolong the period for which benefit from the Fund shall be paid. The Minister may also raise the maximum amount of these benefits. Section 7.(1)Immediately after the insolvency of the employer has commenced, the employer, a public trustee, a liquidator or other person responsible for managing the assets of the employer, shall make a comprehensive list of workers claims that have not been discharged, hereafter referred to as the list, specifying entitled persons referred to under section 5, as well as the kinds and amounts of benefits that are due to them from the Fund. The list shall be transferred to the head of the voivodship labour office, referred to under subsection (2) below. (2)The head of the voivodship labour office that is competent in respect of the headquarters of the insolvent employer, after verifying that the list has been made in accordance with this Act, shall immediately transfer the appropriate funds to the person specified under subsection(1), who shall pay the benefits provided for under this Act to entitled persons. (3)Payment of workers benefits may also be made on the basis of an application filed by an entitled person to the head of the voivodship labour office during a two-month period after the employer has become insolvent, where it would appear to be justified to grant an extension of a time-limit to workers to assert their rights according to the procedures provided for under subsection (1). The payment shall be made by the director of the voivodship labour office immediately after verifying that the application covers claims that are subject to payment from the Fund. (4)Proceedings to be followed under subsections (2) and (3) must comply with the provisions of the Code of Administrative Procedure. Section 8.(1)The head of the voivodship labour office shall immediately inform in writing persons concerned regarding refusal of payment of a workers benefit in full or in part, claimed under subsections 7(1) and (3), and shall give the reasons for such a refusal. (2)Disputes arising in connection with the refusal of payment of a workers benefit from the Fund shall be settled by a court that is appropriate for labour law cases. Section 9.(1)Financial resources transferred to cover workers benefits may be subject to execution only on behalf of persons for whom they have been transferred. (2)Only advances against personal income tax and alimony may be deducted from workers benefits, in accordance with principles under the Labour Code for deduction of such amounts due from remuneration for work. Section 10.(1)Payment of workers benefits from the resources of the Fund shall result in ipso jure assignment to the Fund of a claim against the employer or the bankruptcy assets for reimbursement of benefits paid. (2)When enforcing the reimbursement of benefits paid, claims to the Fund shall be subject to the same legal protection as is provided for due remuneration for work under separate provisions. Section 11.The Minister of Labour and Social Policy shall establish, by order, a form for lists and applications referred to under subsections 4(1) and (3) and under subsections 7(1) and (3), as well as the procedure for withdrawal and transfer of resources from the Fund and for payment of benefits.CHAPTER III. ORGANIZATION AND FINANCING OF THE GUARANTEED WORKERS BENEFITS FUNDSection 12.(1)The Guaranteed Workers Benefits Fund shall be established. (2)The Fund shall have legal personality and shall constitute a public interest body within the meaning of the Budget Act of 5 January 1991 (Dziennik Ustaw, 1993, No. 72, Text 344). (3)The resources of the Fund shall be at the disposal of the director of the Central Labour Office, except in respect of section 4. (4)The Fund shall be represented by the director of the Central Labour Office and by the directors of voivodship labour offices, acting on behalf of the Fund with the authorization of the Funds Board. (5)Supervision and control of the activities of the Fund shall be carried out by the Funds Board. (6)Costs of the operation of the Fund and of collection of contributions to the Fund shall be borne by the budget of the Central Labour Office and of the Social Insurance Institute. Section 13.The following shall be the revenue of the Fund: (i) contributions paid by employers; (ii) reimbursement of amounts paid in respect of workers benefits; (iii) interest on investments of the Funds financial surpluses; (iv) legacies and donations; (v) voluntary payments by employers; (vi) other income specified under separate provisions. Section 14.(1)Resources of the Fund shall be used for financing benefits referred to under sections 4 and 6. (2)Surpluses of the Funds resources may be invested exclusively: (i) in state banks; (ii) in treasury bonds and obligations issued or guaranteed by the Treasury or by the National Polish Bank. Section 15.(1)The Funds Board shall be established. (2)The scope of activity of the Funds Board shall include, inter alia: (i) approval of a draft financial plan for the Fund and reports on its implementation; (ii) periodic appraisal of the activity of the Fund and of the utilization of its resources. (3)The Funds Board shall be composed of: (i) representatives of employers organizations (two-thirds); (ii) representatives of representative trade union organizations, which include as members workers covered by this Act (one-third). (4)Members of the Funds Board shall be appointed by the Minister of Labour and Social Policy from among candidates proposed by organizations referred to under subsection (3) above. (5)Members of the Funds Board shall be dismissed by the Minister of Labour and Social Policy: (i) at the initiative of the Minister or upon the proposal of the Funds Board after consultation with an appropriate employers organization or trade union organization; (ii) at the proposal of an organization with regard to a member whose candidature had been submitted by that organization. (6)The term of office of the Funds Board shall be four years. (7)A law setting out the organization, principles and procedures of the Funds Board and its basis for activity, shall be established by the Minister of Labour and Social Policy in consultation with employers organizations and the trade union organizations referred to under section 19(1) of the Trade Union Act of 23 May 1991 (Dziennik Ustaw No. 55, Text 234). (8)The Funds Board may amend its rules and adopt new rules subject to approval by a vote of three-quarters of the members of the Board; the amended and the new rules shall be subject to the approval of the Minister of Labour and Social Policy. Section 16.Employers shall provide time off to a worker who is a member of the Funds Board to allow him to participate in its work. For such time off the worker shall have the right to remuneration determined in accordance with principles applied to the calculation of remuneration for paid holidays. Section 17.(1)Employers covered by this Act shall make contributions to the Fund. (2)Contributions to the Fund shall be considered as operating costs for the employers. (3)Insolvent employers within the meaning of section 3(1) shall not be obliged to make contributions to the Fund. Section 18.(1)Contributions to the Fund shall be calculated on the basis of payments due in applying the assessment of social insurance contributions. (2)The amount of the contribution to the Fund shall be determined by order of the Minister of Labour and Social Policy, after consulting the Minister of Finance and the Funds Board. Any decision to decrease the contribution to the Fund shall be adopted by the Funds Board pursuant to a favourable vote of three-quarters of the members of the Board. Section 19.Administrative provisions concerning the collection of contributions.CHAPTER IV. AMENDMENT OF APPLICABLE PROVISIONS, AND TRANSITORY AND FINAL PROVISIONSSection 20.Amendment of the Order on Insolvency of the President of the Republic dated 25 October 1934 (Dziennik Ustaw of 1991, No. 118, Text 512). Section 21.Until the amount of co