Entrepreneurs often choose to order the provision of services on the basis of a contract or another similar contract. Despite the civil-law nature of such a contract and the absence of employment relations by the parties, the payer is still obliged to perform certain obligations arising directly from the Labour Code.
Existing labour law (Article 304(1) k.p.) provide that the employer is obliged to ensure safe and hygienic working conditions in question under Article 207(2) (n.e.), to natural persons carrying out work on a basis other than the employment relationship in the workplace or in a place designated by the employer, as well as to persons engaged in the establishment or place designated by the employer for their own account.
This standard, according to Article 304(3) k.p., is also applicable to non-employees who organise work performed by individuals on a different basis than the employment relationship or self-employed economic activity.
The obligation to ensure safe and hygienic working conditions therefore applies to both employers and non-employees, and it is crucial to perform in the workplace or in a designated place on a basis other than the employment relationship (i.e.
contract of order, contract of work, service contract, agency contract, etc.) or in the course of its own business (so-called b2b). The obligation to protect human life or health at risk in the process of work cannot be dependent or differentiated on the legal basis of employment (cf.
the Supreme Administrative Court judgment) dated 4 April 2017, And OSK 1558/15.
It is rightly pointed out that the aim of the legislation is to preserve the basic principles of health and safety towards people who often work in a similar way to workers, in particular work for the employer, and only on a different legal basis than the employment relationship (cf. Labour Code). Commentary, ed. Dr. K. Walczak, 2021.
Such an extension of the occupational health and safety regulations to persons who provide work on a basis other than the employment relationship is referred to as the expansion of labour law, as the chosen regulations of this branch are applied to persons who are not employees (cf. Labour Code). Commentary, ed. prof. dr hab. A.
Sobczyk, 2020.
In the light Article 207(2) K.P., to which the above provisions refer, the employer is obliged to protect the health and life of workers by ensuring safe and hygienic working conditions with appropriate use of scientific and technical achievements. In particular, the employer shall:
- organise work in such a way as to ensure safe and hygienic working conditions;
- ensure compliance with the rules and principles of health and safety at work, give instructions to remedy deficiencies in this respect and monitor the execution of those instructions;
- respond to occupational safety and health needs and adapt measures taken to improve the existing level of protection of the health and life of workers, taking into account changing working conditions;
- ensure the development of a coherent policy to prevent accidents at work and occupational diseases taking into account technical issues, work organisation, working conditions, social relations and the impact of labour environment factors;
- take account of the health protection of young people, pregnant or breastfeeding workers and disabled workers in the framework of preventive measures taken;
- ensure the execution of orders, speeches, decisions and orders issued by the supervisory authorities on working conditions;
- ensure that the social recommendations of the labour inspector are implemented.
In the light of the term ‘in particular’ used in this provision, it should be assumed that the employer's obligations described are only exemplary and not exhaustive any possible health and safety obligations.
It is worth remembering that occupational health and safety obligations are, in effect, of a two-sided nature. Namely, specified under Article 211 k.p.
responsibilities to the extent defined by the employer or by any other entity organising work, also apply to natural persons performing work on a basis other than the employment relationship at the establishment or at the place designated by the employer or other entity organising work, as well as to self-employed persons carrying out economic activity, in the establishment or in a place designated by the employer or other entity organising work (Article 3041 p.).
Author: Oliwia Wójcik, Legal advisor. Russell Bedford Dmowski and Associates Law Firm S.K.A.