The Act on Employee Capital Plans, in force since 1 January 2019, assumes that accession to newly established pension funds is fully voluntary. However, this situation creates the risk of inducing employees to resign from Employee Capital Plans (Pracownicze Plany Kapitałowe PPK).
Since 1 July 2019, the obligation to create Employee Capital Plans has been imposed on large companies employing over 250 people. At the same time, the National Labour Inspectorate (PIP) has begun audit concerning the obligation to conclude agreements on running and managing the PPK and the correctness of payments made into the fund by these entities.
The results of the audit will be known within the next few weeks, but it is already known that the Inspectorate has received the first complaint about the failure to implement PPK, namely, about encouraging employees to resign from investing into the fund.
In accordance with Article 108 of the Act any incitement of an employee or a PPK participant to resign or withdraw from the PPK is punishable by a fine of up to 1.5% of the total amount of the remuneration fund of an entity in the financial year preceding a criminal act. Moreover, not only the employing entity may be punished, but also the person authorized to act on behalf of the employing entity or acting on its initiative.
Article 18 § 1 of the Criminal Code provides that not only the person who commits a criminal act is responsible for it, but also the person who directs or recommends committing a criminal act. Therefore, in the case of encouraging employees to resign from investing into PPK, the penalty may be imposed on the person who directly induces to it and on the person, who is induced to take such prohibited actions.
In other words, incitement, according to the Criminal Code, is an extremely complex concept, and the act of inducing an employee to withdraw from PPK may even include making a suggestion to withdraw from it by providing an employee with information about the possibility of making a withdrawal declaration form, in a way that indicates that this would be highly desired.
There can be many forms of incitement to resign from PPK. For example, it could be advice or information given in written or oral form. In Art. 18 § 3 of the Criminal Code we read that aiding in inducement may include the facilitation of committing a criminal act by another person, in particular by providing advice or information, or by providing necessary measures and tools.
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