Working through an intermediary under the supervision of the National Labor Inspectorate (PIP)? An expert explains the dangers
The wide scope of the proposed changes in the functioning of the National Labor Inspectorate will be particularly important for several types of cooperation operating today between the self-employed, intermediary entities and technological platforms.
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Angelika Czarnecka, legal counsel managing the labor law practice at J.Dauman Legal, emphasizes that These three models have been operating on the border of various legal regimes for years, combining elements typical of the employment relationship, civil law contracts and economic cooperation.
Their legal qualification in practice depends primarily on the realities of a specific relationship — the manner of performing duties, the degree of subordination, the scope of autonomy and the actual organization of work — and not on the names given to the contracts or the settlement methods adopted.
Freelancer working through an intermediary
This is a model that has become common, among others, in the creative industry, among people who do not run a business. Formally, invoices are issued by an intermediary company, and the ordering party settles accounts not directly with the contractor, but with the technical entity.
In practice, however, an everyday, real professional relationship is established between the freelancer and the company using his work. This is where the conditions for an employment relationship may appear: permanent performance of work for one entity, subordination, specific time and method of performing tasks.
The biggest doubts are raised by the question of who would formally be recognized as the employer in this model. Angelika Czarnecka explains that in this type of structures, the settlement method and financial documents are of secondary importance.
— From the point of view of labor law, what is crucial is not who formally issues the invoice, but where the work is actually performed and which entity permanently organizes, coordinates and supervises its performance – emphasizes the expert.
The National Labor Inspectorate may find that the intermediary performs only a technical function. The actual employer is the entity for which the freelancer actually works.
In such a scenario, the relationship between the company using the services and the freelancer could be treated as an employment relationship, even though the contract formally binds the freelancer to the company performing the settlement role.
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B2B people working permanently for one contractor
This is one of the most difficult cases – both business-wise and legally. In many industries, especially IT, marketing and professional services, self-employment and cooperation based on B2B contracts have become common practice.
These types of contracts provide the parties with greater flexibility and cost reduction, but in practice they very often have the features of a classic employment relationship: cooperation with one entity, permanent place of performance of services (stationary office or remote work), work in one team, participation in the same project meetings and performance of duties analogous to those of full-time employees.
— This is especially visible in the IT industry, where the vast majority of specialists are provides services on the basis of one B2B contract concluded with a specific company. This model of cooperation involves significant legal risk. If the services are performed continuously, at a specific place and time, under the contractor's management and in accordance with the organizational order established by him, it is difficult to demonstrate that there is no actual employment relationship. In such circumstances, there is a real risk that the relationship will be classified by control authorities (e.g. PIP, ZUS) as an employment relationship, regardless of the name of the contract given by the parties – explains the expert.
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Many B2B contracts also include provisions specific to employment contracts, such as paid breaks in the provision of services (in practice serving as holidays), the possibility of using sick leave, or subordination to the same principles of work organization and remuneration system that apply to full-time employees.
— In the documentation, I often come across provisions requiring the application of specific regulations from employee regulations to persons providing services on the basis of a B2B contract. In such cases, it would be extremely difficult to defend the position that the relationship does not have the characteristics of an employment relationship, explains Angelika Czarnecka.
It is in this area that the draft amendment to the National Labor Inspectorate Act raises the greatest concerns among entrepreneurs. Determining the existence of an employment relationship retroactively may involve the obligation to settle outstanding contributions, taxes and equivalents for a period of up to three years, which constitutes a significant financial risk for companies.
Couriers and platform drivers
Working via digital platforms – whether transporting people or delivering food – seems at first glance similar to a full-time job: settlement of remuneration for completed orders, work tool marked with the company logo, the possibility of using company cars, scooters or bicycles. However, from a legal point of view, these relationships often differ from classic employment in one key aspect: degree of autonomy.
The typical work model of couriers and drivers is based on great freedom – they decide when they log into the application, which orders they accept and which they reject. They often provide services for several platforms at the same time, have no schedule or obligation to be on duty, and use their own or leased equipment.
These are the elements – voluntary orders, no specific working hours, possibility of simultaneous cooperation with several platforms — constitute an argument against the automatic qualification of this relationship as an employment relationship. In the opinion of Angelika Czarnecka, such a model of cooperation is more often closer to the structure of a franchise than to a classic employment relationship.
However, the expert emphasizes that the final assessment always depends on the content of a specific contract and the actual manner of performing duties. — If there are on-call duties, pre-determined working hours or the obligation to remain on standby, and the direction and method of performing work is determined by the ordering entity, the situation changes significantly. In such conditions, a formally self-employed courier may be considered an employee – but the final qualification will always depend on the provisions of specific contracts and the realities of cooperation.
Employers, employees and PIP are waiting for the final version of the act
Although the proposed change gives PIP inspectors the right to immediately establish an employment relationship, it is still unknown what the final wording of the act will be. At the stage of legislative work, the scope of powers granted to inspectors is particularly controversial. Please note that the level of specialized legal knowledge and experience of PIP inspectors are not equivalent to the competences of judges specializing in labor law matters.
In the three models described – cooperation through intermediaries, permanent B2B with one contractor and orders on platforms – each decision will require a detailed analysis.
— Ultimately, it is the actual way in which the relationship is shaped, especially the existence of elements of subordination, a specific place and time, and the method of performing work, that determines the qualification of a given legal relationship as an employment relationship. The name of the contract and the formal structure adopted by the parties are secondary in nature, sums up Angelika Czarnecka.
