The reform of the Labour Inspectorate entered into force on 8 July and is regarded by entrepreneurs as one of the most controversial changes in labour law in recent years. It provides that an inspector will have the right to convert a B2B contract into an employment contract. However, a number of measures have been abandoned, including solutions that would have transformed such contracts automatically, overly rapid appeal mechanisms for entrepreneurs, and retroactive penalties.
“It is difficult to assess this law. Everything is now in the hands of labour inspectors and depends on how zealous they will be during inspections. I can imagine disputes arising over whether a given relationship between an employee and an employer is actually employment-based. This may be particularly true in creative sectors, IT and services,” said Hanna Mojsiuk, President of the Northern Chamber of Commerce in Szczecin.
“The Law Changes the Flexibility of Employee-Employer Relations”
The Labour Inspectorate Act is one of the most controversial documents adopted by parliament in this term. In some cases, employee protection may come close to undermining the flexibility of the labour market. In the opinion of entrepreneurs, it should not be assumed that every worker wants an employment contract or that full-time employment is always the desired outcome in an employee-employer relationship.
“This law has gone through many twists and turns. At one point, it was even supposed to be scrapped. In the meantime, many changes requested by entrepreneurs were introduced, including the appeal procedure against a decision by a labour inspector. However, I cannot hide the fact that we are still concerned that the Inspectorate expects a drastic increase in court cases involving entrepreneurs, which was supposed to result from numerous inspections. For now, we can only observe the situation and appeal to inspectors to act reasonably,” said Hanna Mojsiuk.
The new regulations are intended to limit abuses in the labour market and curb the use of civil-law contracts in situations where the work actually meets the conditions typical of an employment relationship. Inspections are expected to begin next year, while this year the Inspectorate is to focus on complaints.
“We are pleased that decisions will not be made single-handedly by an inspector. The methodological guidelines set by the Labour Inspectorate are also fairly transparent. However, we are concerned that in many professions, professional relationships cannot be assessed according to a fixed template. Examples include the IT industry, marketing and creative sectors, where workers may not be physically present at work but may, for example, have regular assignments, company equipment or an operating schedule. This law limits the flexibility of the labour market,” Hanna Mojsiuk admitted.
Lawyer: “Determining the Employment Relationship Is the Key Issue”
How are the changes viewed by lawyers? Attorney Marek Jarosiewicz, an expert of the Northern Chamber of Commerce in Szczecin and partner at the Wódkiewicz Sosnowski Jarosiewicz law firm, said that only once inspections begin will it be possible to assess the direction of the Labour Inspectorate’s actions.
“An employment relationship has at least several characteristic features, among which the most important is generally considered to be the employee’s subordination to the employer. As a rule, collecting evidence showing that a given person is obliged to follow the instructions of a superior may be decisive, and sometimes even sufficient, to establish the existence of an employment relationship. Of course, the more features characteristic of an employment relationship that can be attributed to a given legal relationship, the greater the likelihood that the National Labour Inspectorate will use these provisions,” the lawyer said.
“The most complex issue seems to be the exclusion of professional subordination in a contract. The decisive question should be whether such a provision is merely an empty clause or whether, in practice, the person in their relationship with the employer can freely decide, for example, whether or not to undertake a given project, what resources, materials and tools to use for the task, and whether they may use subcontractors while performing it. In particular, freedom to choose when a task is performed does not necessarily conflict with labour law provisions, especially if a person is employed under a task-based working time system, which is characterised by leaving the employee to decide when they perform their duties,” added attorney Marek Jarosiewicz.
Source: CEO.com.pl
