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Contract of mandate, specific task or employment contract – proposed changes to junk contracts. BCC Comment

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The Council of Ministers negatively assessed the proposal to grant the National Labor Inspectorate the right to transform junk contracts into employment contracts. Now, entrepreneurs associated in the Business Center Club have expressed their opinions in a similar vein. “Granting such a large power of the National Labor Inspectorate is too far-reaching and gives rise to the issue of arbitrary and not thoroughly analyzed decisions” – said Edyta Defańska-Czuko, a BCC labor law expert at Crido Legal.

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Contract of mandate or work – changes

“Employment on the basis of the so-called junk contracts – a mandate contract or a specific task contract has been an increasingly common practice for several years. As the Chief Labor Inspector indicates – Poland is a leader in the use of non-employment forms of employment. About 3.7 million people “- wrote the BCC expert in the commentary.

She added that “there are numerous voices from both employees and the National Labor Inspectorate pointing to the need to take specific actions that will result in employment contracts being used to a greater extent, instead of civil law contracts”.

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“The idea to improve the control and quicker removal of irregularities in the event of a possible finding that the relationship between the employer and the employee has the characteristics of an employment relationship, and not a legal relationship that the parties originally agreed between themselves, is to grant the National Labor Inspectorate the right to transform the legal relationship between the employer and the employee in an employment relationship. This transformation would take place by way of an administrative decision. The introduction of this right is to be one of the main assumptions of the draft amendment to the Act on the National Labor Inspectorate, which is currently being developed by the National Labor Inspectorate “- emphasized Defańska – Watchdog.

Earlier draft of changes

She recalled that “in April this year, a parliamentary draft amendment to the Act on the National Labor Inspectorate (form no. 1134) appeared, which provides for the introduction of the right for the National Labor Inspectorate to establish the existence of an employment relationship on the basis of a written decision”. The expert explained that, according to this proposal, the NLI’s decision would be “immediately enforceable”.

“Excluding the employee from the possibility of appealing seems to be too far-reaching and unjustified” – she emphasized.

“The draft in question is still being processed in the Sejm. Recently, a position of the Council of Ministers on this draft appeared, assessing it negatively. This position indicated that granting the National Labor Inspectorate the right to establish an immediately enforceable decision on the existence of an employment relationship is contrary to the principle of freedom. establishing an employment relationship, the principle of freedom of contracts, as well as with the civil law system, and would constitute a violation of the competence of labor courts to establish the existence of an employment relationship “- we read in the commentary of the BCC expert.

BCC on PIP’s proposal

She stressed that “this position should be agreed – as granting such powers to the National Labor Inspectorate’s bodies may lead to the risk of issuing arbitrary and insufficiently analyzed and thought-out decisions”.

“An employee should have the right to appeal against such a decision, because it cannot be assumed that the will of every employee is to perform paid work based on an employment contract, and such a decision is always beneficial for him,” commented Defańska-Chuko.

“Granting such a large power to the National Labor Inspectorate is therefore too far-reaching and creates a field for issuing arbitrary and unconsidered decisions. Declarations on the elimination of junk contracts are one of the main assumptions of the Polish Order, but the method proposed by the National Labor Inspectorate does not seem to be appropriate and it can have adverse effects not only for employers, but also for employees “- said the expert.

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