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The author reflects on the usefulness of temporary work in the post-industrial era. He believes that this form of atypical employment can be replaced by electronic employment technologies.
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The subject of the article is the analysis of the regulations in the field of temporary agency work. Introduction of the Act on the Employment of Temporary Agency Workers in 2003 showed that the law was ineffective in terms of protecting the temporary worker. In practice, doubts have arisen regarding the application of the maximum period of temporary agency work or assignment to temporary work on the basis of a civil law contract. In 2017, the provisions of the Temporary Agency Employment Act were amended and their aim was to remove the shortcomings of the Act. The author evaluates the solutions introduced by the amendment.
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The aim of the article is to present the legal basis for the functioning of temporary employment agencies. Their specificity lies in the fact that they are economic entities and at the same time labour market institutions. The services provided by the agencies constitute a regulated activity and are subject to many administrative requirements, which have been discussed in detail by the Author. A distinguishing property of agencies is temporary work classified as an atypical form of employment, due to the characteristic features assigned to it, mainly the tripartite legal structure and limited duration, which are presented later in this article.
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Temporary work and work on digital employment platforms are considered new atypical forms of employment, and the share of workers employed in this way does not exceed 3%. They are similar in the temporary and tripartite nature of employment, as well as the division of the basic functions of the employer between two entities, noticeable also in the case of many platforms. However, temporary employment agencies operate within a legal framework defined at international, European and national level, and with regard to digital employment platforms, this framework is still emerging. However, an unambiguous comparison of both forms of employment and determining the appropriate shape of regulations for digital platforms is hindered by the diversity of platforms’ operating patterns.
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The regulation concerning the prevention of the abuse of a fixed-term employment contract included in the Labour Code does not apply to temporary work in Polish law. This does not mean, however, that the abuse cannot occur in this type of employment as well. The article examines where the phenomenon of abuse occurs within the three-way relationship in temporary employment. It was found that the source of the abuse is the legal relationship between the employer-user and the temporary-employment agency. At the same time, the statutory mechanisms limiting temporary employment are mechanisms to counteract these abuses.
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Temporary employment on the basis of civil law contracts raises serious doubts. According to the Author, temporary employment agencies, due to their specificity, should employ only on the basis of labour law contracts. Assigning people to work on the basis of civil law contracts can be carried out only in the mediation formula. Thus, the temporary employment agency becomes the agent of the employed person, and on his behalf sets the terms of the contract. Under this assumption, any statutory restrictions on the terms and conditions of employment constitute a violation of the freedom to conduct a business resulting from the Constitution. This also applies to the need to provide trade unions with information on the conditions under which the cooperation agreement is to be implemented. These regulations make the civil law way of doing work a fiction. On the other hand, employment may be considered a violation of the provisions of the Labour Code.
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The stimulus for the preparation of the article is the amendment to the Act on the Employment of Temporary Workers, in force since 1 June 2017, which allowed for the widespread use of civil law contracts in temporary employment. This solution raises a number of doubts and interpretation problems, also in the context of managerial authority that in the construction of temporary employment, until the adoption of this amendment, was granted both to the temporary employment agency and the user employer. The main goal of the author is to present managerial authority in temporary employment on three different levels: firstly in case of temporary employees employed on the basis of an employment contract, secondly in case of civil law temporary employment, and thirdly in employee outsourcing, which is the employment option closely linked with the temporary employment and often combined with it. The reflections included in the study show how important the role of managerial authority is in the context of the admissibility of using the atypical form of employment analysed here.
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The aim of the foregoing study is to indicate the interdependence between the law on the employment of foreigners and the law on the employment of temporary workers. First, the author analyzes the assumptions of the law on the employment of foreigners. Next, he discusses the assumptions of the law on the employment of temporary workers, which makes it possible to crystallize mutual relations and connections. The author contrasts dogmatic-legal analysis with axiological conditions and tries to explain the classic conflict between the protection of the employee’s interest and the protection of the domestic labour market.
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The publication addresses the issue of occupational safety in temporary employment. It discusses the liability of the parties, including issues of accidents at work and occupational diseases. In practice, these issues raise numerous doubts, but also the question arises as to whether the division of duties between two entities does not reduce the level of safety of the employed.
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The article presents the scope of the rights and obligations of the employer-user and the temporarywork agency regarding a temporary worker in the field of working time.
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The holiday entitlement of temporary agency workers is an important issue in temporary work. Standards concerning the leave of temporary workers should correspond to and comply with the higher-level standards, which are ratified international agreements, EU law and norms contained in the Constitution of the Republic of Poland. This article addresses the issues of this institution in comparison to employees of model employment. The author tries to find an answer to confirm the thesis that it is necessary to amend the holiday regulations concerning temporary workers and to increase the equality of their rights in this respect with employees employed on the basis of an employment relationship. At the same time, he is aware of the fact that the atypical nature of this form of work and its demand causes diversity by its very nature, but it should not be so extreme and diverse. All the more so because the right to rest is a fundamental principle of labour law, with which the discussed issues should not be contradictory. The issue of interpretation of complex meanings of notions which the legislator has not defined is also discussed. The de lege ferenda postulates of future changes to be made in this matter were also presented.
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The principle of equal treatment of temporary workers is derived from the EU Directive on temporary work. The implementation of this principle in the Polish legal system is guaranteed both by general provisions of the labour law relating to equal treatment and non-discrimination of employees, as well as the provisions of the Act of July 9, 2003 on Employment of Temporary Workers, in particular Art. 15 sec. 1 of this act. The obligation of equal treatment applies to temporary employees assigned to perform work for the user employer and employees directly employed by this employer in the same or similar job position, and concerns two areas: “working conditions” and “other employment conditions”. These two terms have not been explicitly defined in the Polish legal system, while their correct definition and interpretation constitute the basis for the proper understanding and implementation of this principle.
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The author analyses the current legal status concerning the possibility for temporary employees to use the Company Social Benefits Fund in cases where such a fund has been created by the employer-user. It also presents the practice of employer-users in this field and proposes legislative changes to increase the level of equal treatment of employees and temporary workers providing work for the same employer.
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The aim of the article is to analyze the distribution of social benefits costs in temporary employment. The author points out that some of the social benefits typical for traditional employment have been completely excluded in temporary employment (severance payments for termination for reasons not related to employees), and the method of calculation of some cash benefits (holiday pay, equivalent for annual leave) has been modified for the purposes of temporary employment. To a large extent, the social burden of employment is transferred by the legislator to the temporary employment agency. Such solutions are justified by the short duration and subsidiarity of temporary employment as compared to traditional employment. The doubts are raised by the lack of access to benefits from the company’s social benefit fund for temporary employees on the same terms as ordinary employees of the user employer.
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Temporary agency work was introduced by the Act of 10 May 2003. Temporary employment was to be used in the event of the need to commission tasks of a seasonal, periodic, ad hoc nature or the timely performance of which by employees employed by the user’s employer would not be possible, or the performance of which is one of the duties of an absent employee employed by the user’s employer. The author attempts to find out whether the law is really used for the purposes for which it was created? Is the conclusion of such contracts as beneficial for the temporary worker as it is for the employer or temporary employment agency?
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The concept of employee outsourcing has raised numerous doubts for years, mainly due to its identification with the notorious practices of employers aimed at evading the fulfillment of public law obligations related to the employment of employees. In this article, doctrinal and juridical definitions of this term will be confronted with the characteristics of the concept of outsourcing developed on the basis of management sciences. The remarks made in this way will serve to create an author’s definition of the concept of “employee outsourcing”.
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The article written by a representative of the National Labour Inspectorate presents infringements of regulations exposed during inspections and examples of circumvention of the applicable legal regulations which misinterpret the nature of temporary employment, with particular focus on outsourcing bearing the characteristics of temporary employment. The author analyses the reasons of negative phenomena on the temporary employment market, discusses the procedures used by labour inspectors when finding violations of provisions in this area, and also indicates proposals for changes in the applicable law that would facilitate the National Labour Inspectorate to combat the irregularities revealed and could contribute to restoring the proper meaning of temporary work, in accordance with its essence. Such proposals include, the possibility for labour inspectors to issue administrative decisions establishing the existence of an employment relationship between a person performing temporary work and the employer-user and introducing consequences in the form of removing the entity from the register of employment agencies in the case of outsourcing in fact being temporary employment.
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The study discusses the most important issues regarding the determination of the appropriate payer of social insurance contributions. The payer, as a co-contractor of social insurance, performs a number of important tasks related to both the collection of contributions and the implementation of the right to insurance benefits. For this reason, it is important that the entity acting as the payer is correctly identified. In case of doubts, the Social Insurance Institution carries out proceedings to determine the appropriate payer taking into account the factual findings.
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Article presents the principles for performing the control of social contribution payers and analysis of atypical forms of employment within the range of employment provided via private temporary employment agencies, with particular regard to seconded workers, assigned to perform the work abroad. The growing number of civil-law contracts and registered private temporary employment agencies indicate the need for increasing flexibility on the labour market. The study presents the scale of the phenomenon, as well as the analysis of the causes of the changes taking place. The trend of a deepening diversity of forms of employment precedes legislative changes in relation to the provisions governing the social security system, not only in Poland, but also in the provisions of EU law. As a consequence, market changes and legal provisions that are not adapted to them often cause misunderstanding, and may also be a potential source of abuse in the field of social security. The issue was presented from the perspective of the control of payers of contributions carried out by the Social Insurance Institution, in particular the rights of inspectors of the Inspection of the Institution and the obligations of payers of contributions specified in the provisions of the Act on the social insurance system. The author presents potential examples of irregularities that can be disclosed as a result of control of activity of private temporary employment agencies on example of seconded employees as well as financial consequences in aspect of obligation to pay the social contributions, including negative consequences for the course of insurance of the employed persons.
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Temporary work was regulated in the Act of 9 July 2003 on the Employment of Temporary Workers (Journal of Laws of 2003, No. 166, item 1608) allowing to hire a temporary worker based on a fixed-term employment contract and a civil law contract. According to the provisions of labour law, these persons are employees and on this basis “have the right to employee privileges” and “social security benefits”. The problem analyzed by the author concerns the issue of concluding one-day fixed-term contracts with temporary employees. From the point of view of the provisions of the above-mentioned Act on the Employment of Temporary Workers and the Labour Code, there are no contraindications to concluding such short-term contracts. In the event of illness, the temporary worker does not acquire, for example, the right to sickness benefit or sickness benefit itself.
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