Temporary work in Polish legislation

Temporary employment agencies are becoming an increasingly popular way of doing business. Business models based on the specific lending of employees to other entities have recently seen a sharp increase also in Poland. For comparison, at the end 2013 was theirs. 4,500, In 2016 Now.

7,500, a In the first quarter 2019 above 8,500 The purpose of this study is to approximate the legal framework for the phenomenon of temporary work, with particular emphasis on the rights and obligations imposed by the legislator on labour users and users of such services.

first temporary employment agencies began to appear in Europe In the first The mid-20th century Precursors of this type of business options were France and Spain. In the USA first temporary work agency was established In 1948, where there are currently the most of them in the world, with 39% participation in the local labour market.

Currently, the legal status of temporary work agencies and temporary workers in the European Union is harmonised. The reason for legal standardisation of this phenomenon was the issue of Directive 2008/104 to 19 November 2008 on temporary work[1].

Member States have been obliged to transpose the content of this Directive into national legal order to 5 November 2011 The provisions of this Directive shall apply only to workers employed in temporary employment agencies in the form of a contract of employment or another, provided that the person employed remains with that agency in the employment relationship.

The regulation of temporary work was included in the Polish legal order before the EU legislature did. The law on 9 July 2003 on the employment of temporary staff[2] (go on.p.t.).

It includes rules on the hiring of temporary workers by companies having the character of temporary agency, which cooperate with other entrepreneurs who acquire the characteristics of the user's employer within the meaning of the abovementioned Act.

It is worth noting the multiple amendment of this act, the most important of which was the one that entered into force 1 June 20173 r.

The most important changes that have been made are the limitation of the maximum duration of temporary work, additional obligations imposed on the user's employer and the temporary work agency, modified methods of calculating the remuneration for holiday leave, and the tightening of penalties for infringements of the Act.

General characteristics of temporary work

Temporary work is a specific form of employment, combining three entities:

• • an employee employed by a temporary agency;
• • an agency for temporary work which employs an employee, being in relation to him the employer responsible for directing him to work with the employer of the user;
• • the user's employer for whom the directed worker performs real activities.

The agency for temporary work is nothing but an employment agency within the meaning of the Act of 20 April 2004 promoting employment and labour market institutions[4] (Next: u.p.z.).

Such an entity is characterized by the provision of services in the field of placement of employment, personal advice and the direction of persons to perform temporary work. This latter element is a regulated activity and requires entry in the relevant register[5] entities running employment agencies. Under Article 19d(1)(1) u.p.z.

it is indicated that the employment agency may not charge persons who have used its services to pay fees other than the actual costs incurred to arrive and return to the person addressed, to issue visas, medical examinations and to translate documents. What is particularly important in the current trend of employing foreigners.

In society, there are often difficulties in contrasting activities involving the definitive performance of temporary work with the so-called outsourcing. In the outsourcing relationship occur two parties to the contract: outsourcer – outside company and insourcer – a company ordering the external entity to perform.

The main distinguishing feature of employee outsourcing from temporary work is the lack of direct and permanent subordination of contractors to the provider of the service, which is characteristic of employment relations.

However, it is interesting to be able to give the insourcer indirect and short-term authority over the outsourcer's employees in case they are referred to the insourcer. This has been confirmed in the Supreme Court judgment of 27 January 2016[6].

Subject-matter and the relationship between temporary work

The temporary staff member shall be an employee employed by the temporary agency for the sole purpose of carrying out temporary work for and under the guidance of the employer of the user, as specified by the under Article 2(2) The definition of temporary worker should be correlated with the definition of employee included under Article 2 Act on 26 June 1974 - Labour Code[7] ((a.k.a.) from which the employee is a person employed on the basis of an employment contract, appointment, election, appointment or cooperative employment contract.

The u.p.t. provides for the possibility for temporary employment agencies to direct a person who is not an employee of that agency to perform temporary work under a civil law contract. Therefore, in terms of the definition of temporary agency staff, there is no place for persons employed on civil contracts.

The employer shall be the user of an employer or non-employee within the meaning of K.P., which shall designate the employee assigned by the temporary task of the labour agency and control their performance. It follows from the above that the characteristic of the user's employer will also be owned by an entrepreneur who has concluded a contract with a temporary work agency, has designated tasks and controls the performance of work by persons employed under civil law contracts by a temporary work agency.

The mere fact that a temporary agency employee is subject to the obligation to start working with the user's employer and will constitute the main obligation on the temporary worker.

The other elements of the employment relationship shall, as a matter of law, be delegated to the user's employer to effectively control the correct performance of the established work.

In practice, there may be a situation where a person employed on a civil contract in a temporary employment agency actually fulfils the characteristics of the employment relationship within the meaning of Article 22(1) k.p., and therefore theoretically it will not be possible to exclude from such a person the standards resulting from Article 22(11).

In the resolution[8] Supreme Court of 12 December 2011 indicates that the application of the provision Article 22(11) is not excluded for the employment of persons assigned to temporary employment under a civil law agreement. In this situation, civil relations are actually reclassified into employment relations.

Note that under Article 2(3)) u.p.t. it is indicated that temporary work is to perform tasks for the employer of the user:

• • of a seasonal, periodic, ad hoc nature or
• • whose timely execution by employees employed by the user's employer would not be possible, or
• • whose performance falls under the duties of an absent employee employed by the user's employer.

Under Article 8 a list of works excluded for temporary staff, including:

• • especially dangerous, within the meaning of the provisions issued under Article 23715 k.p.;
• • at the workplace where the employee of the user's employer is employed during the period of his participation in the strike;

• of the same kind as the work performed by the employee of the user's employer with whom the employment relationship for reasons not affecting employees in the last period has been terminated 3 the months preceding the expected date of commencement of temporary work by the temporary worker, if such work was to be carried out in any organisational unit of the employer of the user located in the municipality where or where the organisational unit in which the redundant worker was employed was located;
• requiring an officer to be armed with a weapon protection or items intended to incapacitate persons by means of electricity, the possession of which requires the authorisation referred to in the Act of 21 May 1999 about weapons and ammunition[9].

Other important elements of temporary work

Under Article 20 u.p.t. it is indicated that the agency may refer a temporary worker to carry out temporary work in favour of one employer of the user for a period not exceeding total 18 months during the period of 36 consecutive months. The employer, on the other hand, may also benefit from the work of the same temporary worker for a period not exceeding the total 18 months during the period of 36 consecutive months.

Under Article 12 u.p.t. is prohibited from concluding contractual terms between the employer of the user and the agency of temporary work, aimed at excluding the possibility of employing temporary worker as an employee already at the employer of the user. Such an ex lege clause will be sanctioned by annulment. The establishment of an employment relationship between the temporary agency and the temporary worker is based solely on a fixed-term employment contract as provided for under Article 7 u.p.t.

The growing Polish labour market, which is an undisputed indicator of economic growth, has been suffering from a lack of hands to work for a long time. Searching for employees causes companies a lot of trouble, and above all additional financial expenditure.

In view of the situation, the market is, in effect, secondary to creating entities that create business models based solely on recruitment of employees and employing them in the form of temporary workers, in order to later address users' employers.

These business developments require appropriate regulation, which has been outlined in this study, indicating the most sensitive and uncertain moments.

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