ECJ and Polish labour law on child feeding leave

A noteworthy judgment by the European Court of Justice on child feeding leave inspired me to write a few words on the same issue as it is shaped under Polish labour law.

But from the beginning…

In the judgment dated September 30, 2010, case no. C-104/09 Pedro Manuel Roca Álvarez v. Sesa Start España ETT SA, the ECJ held that it is discriminatory – on the grounds of sex by reference in particular to marital or family life – for the national law to provide that

female workers who are mothers and whose status is that of an employed person are entitled, in various ways, to take leave during the first nine months following the child’s birth, whereas male workers who are fathers with that same status are not entitled to the same leave unless the child’s mother is also an employed person.

The national law at issue was Article 37(4) of the Spanish Workers’ Statute, which provided for child feeding leave (breastfeeding or otherwise) to employed mothers without exception, whilst employed fathers were entitled to that leave only if the child’s mother was also employed. As a result, for employed fathers the fact of being a parent was not sufficient to earn the leave entitlement, whereas it was for employed mothers. The ECJ found that

the positions of a male and a female worker, father and mother of a young child, are comparable with regard to their possible need to reduce their daily working time in order to look after their child

and that therefore

the measure at issue in the main proceedings establishes a difference on grounds of sex

which could not be justified by protecting the biological condition of the woman following pregnancy or the protection of the special relationship between a mother and her child since the feeding and devoting time to the child can be carried out just as well by the father as by the mother.

What does Polish labour law say on child feeding leave?

Polish labour law provides for explicit breastfeeding leave, which means that a non-breastfeeding mother will not be entitled to such leave, not to mention the father.

The amount of leave depends on the daily working hours of a breastfeeding mother:

  • if it’s shorter than 4 hours, no time off is available;
  • if it’s between 4 and 6 hours, one half-hour break when 1 child is being breastfed, or one 45-minute break when more than 1 child is being breastfed;
  • if it’s longer than 6 hours, two half-hour breaks when 1 child is being breastfed, or two 45-minute breaks when more than 1 child is being breastfed.

The mother may ask for accumulated time off during her working day or finish work respectively earlier if she wishes.

Breastfeeding breaks count as working time for which salary is due.

There is no limit on the child’s age and the mother may use the leave as long as the child is being breastfed.

European Court of Justice on transfer of undertakings

In today’s entry I will depart for a moment from the immigration issues to turn the readers’ attention to the recent ruling of the European Court of Justice on transfer of undertakings (case no. C-463/09 CLECE SA v Maria Valor and Ayuntamiento de Cobisa, judgment of January 20, 2011).

The EC transfer of undertakings legislation is contained in the Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees’ rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses.

So far the ECJ has reached a number of judgments according to which takeover of tasks by another organization (e.g. through contracting out) might trigger transfer of undertakings and the consequent takeover of related staff.

In case no. C-463/09 the problem was the other way round, i.e. whether a situation in which a public authority terminates a contract for outsourced services (here: cleaning) and undertakes those services by itself by hiring new employees for that purpose is caught by transfer of undertakings. In its ruling the ECJ stated that the mere taking over by the public authority of the cleaning work that was previously carried out by the contractor, cannot, of itself, indicate the existence of a transfer undertakings. In consequence, employees of the contractor who did the cleaning services have not been taken on by the public authority as a result of terminating the contract and assuming the cleaning work back.

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