The Constitutional Tribunal ruled: The obligation to pay contributions when an employee has a contract with another entity is constitutional.

Content of the Application

The Constitutional Tribunal has addressed the issue of 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, contract of mandate, another contract for the provision of services or a contract for specific work is also regarded as an employee within the meaning of the system act if the contract is concluded with an employer with whom the person has an employment relationship, or if under such a contract the work is performed for the employer.

Employer organisations submitted applications on this matter to the Tribunal in the years 2015–2016. Their content concerned the consequences of the above-mentioned regulation for the employer, specifically the imposition of the status of contribution payer in respect of a civil-law contract concluded with a third party.

According to the Tribunal, the provision complies with the principle of proper legislation derived from Article 2 of the Constitution of the Republic of Poland. Referring to the case law of the Supreme Court, the Tribunal also confirmed that the essence of the challenged regulation is the protection of employee rights and the prevention of employers circumventing the law by transferring employees to another company which would conclude a contract of mandate (subject to contribution exemption) or a contract for specific work (not subject to insurance contributions), under which the employee would perform the same duties for the employer as those under the employment contract. The Constitutional Tribunal therefore did not share the Applicants’ objections that the challenged provision does not fulfil the legislator’s intended purpose, considering the allegations of a breach of the principle of proper legislation—namely the inclusion within the scope of the challenged provision of a broader range of cases than originally intended—as unfounded. The Tribunal also stated that the provision is sufficiently clear and precise to allow its addressees to determine the scope of their obligations. The consistent case law of the Supreme Court and common courts has enabled any interpretative doubts concerning the challenged provision to be resolved using commonly accepted methods of statutory 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 to their employer, do not relieve them of their obligations as contribution payers and therefore entail dual liability towards both the employees and the Social Insurance Institution (ZUS). Also, in the case of contracts of mandate, such income must be reported together with income from the employment relationship in the individual monthly report submitted by the employer for the employee.