Major changes to the Labour Code. Remote work at the employee’s request.

Content of the Draft

The Constitutional Tribunal has examined the constitutionality of Article 8(2a) of the Act on the Social Insurance System. According to this provision, a person performing work under an agency agreement, a mandate contract, another contract for the provision of services, or a contract for a specific task shall also be considered an employee within the meaning of the system act, provided that such contract was concluded with the employer with whom the person is in an employment relationship, or if under such contract the person performs work for the employer.

Employers’ organisations submitted applications on this matter to the Tribunal in 2015–16. Their content concerned the consequences of the aforementioned regulation for the employer, namely granting them the status of a contribution payer for a civil law contract concluded with a third party.

According to the Tribunal, this regulation is consistent with the principle of sound legislation derived from Article 2 of the Constitution of the Republic of Poland. Referring to the Supreme Court’s case law, the Tribunal also confirmed that the essence of the challenged regulation is the protection of workers’ rights and the prevention of employers circumventing the law by transferring employees to another company that would conclude a mandate contract (exempt from contributions) or a contract for a specific task (not subject to insurance obligations), under which the employee would perform the same duties for the employer as under an employment contract. The Constitutional Tribunal did not share the Applicants’ objections that the challenged provision does not correspond to the legislator’s intended objectives, considering the claims of violation of the principle of sound legislation due to the provision covering a broader range of cases than assumed by the legislator to be unfounded. The Tribunal also added that the provision is clear and precise enough to enable the addressees to determine the scope of their obligation. A consistent line of case law of the Supreme Court and common courts allowed resolving interpretative doubts arising from the challenged regulation using commonly accepted methods of interpretation.

Note for Employers

In light of the above ruling, entrepreneurs should be aware that contracts concluded by their employees with third parties, under which they provide services for their employer, do not exempt them from the obligations of a contribution payer and thus expose them to double liability towards employees and the Social Insurance Institution. Also, in the case of mandate contracts, such income must be reported along with income from employment in the monthly individual report submitted for the employee by the employer.