Valuable information

If, for objective reasons you only need employees for a certain period of the year or perhaps your regular employee will be absent for some time and you entrust the performance of his duties to someone else until his return or perhaps a period of exceptional work accumulation is approaching and in your company the available employees are unable to complete everything at the agreed time and you need extra hands to work? If you have these or similar situations the solution to personnel problems can be what’s called "temporary work".

Get acquainted with the advice provided, which by the way explains what a temporary job is, what its advantages are and what it takes for a temporary worker to work for your company.

1. What is temporary work and when can work be done in the form of temporary work?

What is temporary work and what rules are laid down for the employment of temporary workers in the Act of 9 July 2003 on the employment of temporary workers (Journal of Laws 2019, paragraph 1563). In matters not regulated by the provisions of the Act (hereinafter, the u.z.p.t) applicable to the employer and the temporary worker, the paragraphs of the law relating to the employer and the employee apply.
To understand temporary work one must first understand the substantive component of it and the role of each actor. Here first of all we must present the concepts used to regulate such work.
Thus, a temporary work agency is an economic entity that carries out entrepreneurial activities in the field of providing temporary work services, consists in the employment of temporary workers and to assign these workers and non-employees to perform temporary work for and under the direction of the employer, the user in accordance with the principles set out in the regulation on the employment of temporary workers. These activities are regulated activities and require the registration of entities that are employment agencies

The employer of a user is an employer or an enterprise which is not an employer as defined by the Act of 26 June 1974 of the Labour Code (Journal of Laws 2019.1040, i.e., further c.p.), assigning tasks to an employee sent by the temporary employment agency and supervising their performance (Article 2, paragraph 1 of the the u.z.p.t).

A temporary worker is an employee employed by the Temporary Employment Agency solely for the purpose of performing temporary work for and under the direction of a user employer (Article 2, paragraph 2, of the u.z.p.t).
Temporary work has been explained directly in Article 2 para. 3 of the u.z.p.t and is characterized between the other strictly defined nature of the tasks that can be performed within it and the time specified in the law for the user employer to perform the work. Temporary work will be deemed to be that of a temporary worker who:

a) for a period not exceeding the period specified by the Law.

Position art. Section 1 26 of the u.z.p.t provides that for 36 consecutive months, a temporary employment agency employing a temporary worker may assign the same employee to temporary work for a single user employer for a period of time less than 18 months.
However, if the temporary worker performs temporary work for the user employer at all time including tasks whose performance is the responsibility of the absent employee employed by that user employer the duration of temporary work by the user may not exceed 36 months. After this period of temporary work a temporary worker may be assigned to perform temporary work for that user employer not earlier than 36 months.

b) seasonal, periodic, special

What should be understood in the above-mentioned terms was considered by the Appellate Court in Bialystok, III Division of Labour and Social Insurance of 20 May 2014, the reference number of Act III Aua 146/14, which noted that seasonal or temporary work is related to employment related to the short-term need for work. The court reasoned that the interpretation of the phrase "seasonal" (according to the new Polish dictionary WPWN 2002) meant "appropriate to a particular season", working during the season. In turn the term "temporary" refers to temporary, unsystematic or irregular employment in the context of work. Therefore this relates to work done in response to unforeseen events that occur suddenly.

c) The urgency of performance by employees employed by a user employer would not be possible, or

d) the performance of which is the responsibility of the absent employee employed by the user employer.

When the method of work being discussed may be useful for you the tasks that a temporary worker may perform are indicated. So if you’re in the business of like seasonal processing fruit from your own garden and you need employees to collect fruit only for a certain part of the year or your regular employee will be away for a long time and you need someone to take over your knitting duties without undue delay and you have time for interviews, you can take advantage of the mediation of the temporary employment agency and trusting a substitute can be the solution you seek (see also para. 2 below).

A temporary worker is therefore an employee employed by a temporary employment agency solely for the purpose of performing temporary work for and under the direction of a user employer. If you use the services of the Temporary Employment Agency and he sends a temporary worker to you to perform the work, you will receive the status of employer-user (Article 2, paragraph 2 of the u.z.p.t). According to the legislative definition contained in article 2, paragraph 1 of the Labour Code an employer is an employer or an enterprise which is not an employer, which is sent by the Temporary Employment Agency and supervises their implementation.

2. Why would being temporary work be good for you?

The use of the temporary work model, which is based on the specific subject-matter structure of the persons concerned provision, employment and mediation between the recipient and the provider, leads to the division of tasks and responsibilities, related to the employment relationship between the temporary employment agency and the user’s employer.
By equipping the temporary employment agency with certain tasks and duties the user is facilitated. Therefore, the employer of the user, for example
• Does not conclude and is not a party to contracts that constitute the basis of employment directly with a temporary worker (employment contracts, civil contracts), as these contracts are concluded by a temporary worker agency. This is excellent assistance, especially for very short periods of employment and high staff turnover.
• should not independently conduct recruitment processes or involve its employees, such as announcing employment opportunities, selecting candidates on the basis of resumes, conducting interviews, etc.
The temporary employment agencies have a broad base of employees, recruit and seek to ensure that the qualifications of the employee meet the requirements of the position.
 • It not collect and keep the documents of the employee nor issue work certificates.

The Temporary Employment Agency issues temporary employment documents to a temporary worker concerning the total period of employment completed at the Agency, covered by subsequent employment contracts concluded for a period not exceeding 12 consecutive months. According to Article. 18 b paragraph 1 a temporary worker may at any time require the temporary employment agency to issue his work certificate on termination or termination of employment relationship.

•  should not have to pay social insurance contributions and advance tax on income tax has greater certainty of compensation if it is caused by a temporary worker, since it is the responsibility of the temporary employment agency to compensate the employer for the damage caused by the temporary worker in the performance of temporary work under the conditions and within the limits to the employee in accordance with the provisions on the employees' material liability. The Temporary Employment Agency has the right to recover from the temporary worker the equivalent of the compensation paid to the user-employer.

•  The possibility of a free termination of the employment of a temporary worker than in the case of «traditional» labour relations between the employer and the employee. You can refuse to perform temporary work as a temporary worker even before the end of the period of work agreed with the agency. You don’t have to give me the reasons you’re basing yourself on. In refusing the work of a temporary worker the Temporary Employment Agency should be informed in writing of the expected date of termination of temporary work, if this is possible in advance taking into account the duration of the contract applied to the parties to the employment contract.

3. What will be your duties as the user’s employer?

As stated in paragraph 2 the employer of the user is not burdened with a number of obligations, which are usually impose on the employer. This does not mean however that he is relieve of his duties and responsibilities as a temporary worker.

It should be recall and emphasized that the employer of a temporary worker is in the sense of art. 3 CP is only a temporary employment agency not an employer of the user. The employer of the user performs duties and however enjoys the rights of the employer to the extent necessary to organize work with a temporary worker. So, employer user:

- must ensure that temporary workers have safe and hygienic working conditions in a place designated for temporary work;

Remember that
 •    records the hours of work of a temporary worker in the scope and under the rules that apply to employees;
•    may not apply a temporary worker’s position. 42 § 4 Labour Code, which provides that termination of working conditions or remuneration is not required, if the employee is assigned in cases justified by the needs of the employer to work other than that specified in the employment contract for a period not exceeding 3 months of a calendar year, if this does not result in a reduction in wages and corresponds to the qualification of the employee or entrust him with the performance of work under the direction and direction of another enterprise. The agency and the user’s employer may determine that the user’s employer assumes part of the tasks and responsibilities of the employer (see Sect. 4, 2).

Also remember that a temporary worker during the period of work for the user’s employer cannot be considered less favourable in terms of working conditions and other conditions of employment than employees finding you at the same or similar place of work. The principle of equal treatment does not apply to temporary workers working for a user employer for less than six weeks in the case of access to training for professional development organized by the employer-user.

You must also always inform temporary workers in the way accept in your firm of the vacancy in which you plan to hire new employees. The temporary workers may be employ by you freely upon termination of temporary work. At this stage it should be emphasized that informing the Temporary Employment Agency by the employer-user that a temporary worker will not be employed by the employer-user after the termination of the temporary work is invalid (article 12 of the u.z.p.t).

With regard to the distribution of tasks duties and responsibilities between the temporary employment agency and the employer-user attention is drawn to the decision of the Supreme Court of 10 April 2014, the reference number of act I of the Supreme Court of Justice 243/13, in which the Supreme Court held that the employer-user on general principles bears the risk of damage caused to the employee by the work process including , for example, damage caused by the movement of the enterprise (article 435 of the Civil Code). The employer of the user is passively lawful (therefore may be a defendant) in a legal dispute in which the temporary worker suffered bodily injury or health problems, claims compensation in the event of an accident in the performance of temporary work based on the principles of tort liability (articles 444 and 445 of the Civil Code).

Also, don’t forget the disclosure requirements for trade union organizations. You must inform the trade union representative in the understanding of Art. 24125a of the CPC on the intention to entrust temporary work to an employee of the temporary employment agency. However, an employer of a user who intends to entrust an employee of a temporary employment agency with work for a period of more than six months is obliged to take measures to harmonize this intention with representative trade union organizations.

4. The procedure for the employment of a temporary worker

If having been acquainted with the definition of temporary work and the principles governing the granting of temporary work you have come to the conclusion that the use of this form of work satisfies your needs, If you do not know please check which essential steps of the temporary work procedure of the person working through the temporary work agency.

Step 1 - Find a temporary employment agency you want to cooperate with.
First of all you should look at the offer of various temporary employment agencies by the amount of services they offer and the fees they charge. The most temporary employment agencies provide a range of services on their websites, so access to them should not be difficult.

Step 2 - the conclusion of the agreement of the user’s employer with the temporary employment agency and agreement of the conditions of employment of the temporary worker.
If you already know with which agency or temporary employment agencies you want to cooperate, contact its representative. After negotiating the service industry you will use and rewards for the temporary employment agency, you should sign a contract with the temporary employment agency containing the terms of your cooperation. You must agree with the Temporary Employment Agency not only the rules of direct cooperation, but above all the conditions of work performed by the person, temporary employment agency "delegates" to you. According to art. 9, paragraph 1 of the u.z.p.t, the employer of the user shall agree in writing with the agency:

- The type of work to be assigned to the worker
 - the qualification requirements necessary for the performance of the work assigned to the temporary worker
 - the expected period of temporary work - the working time of the temporary worker
 - the place of temporary work.

In addition, as the employer of the user You must notify the agency in writing of:
- the Remuneration for work assigned to the employee, it is specified in the remuneration regulations applicable to the user’s employer
- the conditions for performing temporary work in the field of health care.

Even before the agency enters into a contract with a temporary worker, you must also agree in writing on:
- the Remuneration for work that affects the remuneration of a temporary worker and the manner and duration of providing this information to the temporary employment agency for the purpose of the correct calculation of the employee’s remuneration.
- The extent to which an employer assumes the obligations of the employer with regard to occupational safety and security in addition to the obligation to provide work clothing and footwear, as well as personal protective equipment, preventive beverages and food; Conduct occupational safety and health training, determine the circumstances and causes of an occupational accident, assess occupational risk and report the risk;
- The extent to which the employer of the user commits the employer to pay the travel expenses. The rights and obligations of the employer-user and the temporary employment agency within the framework not regulated by the Act must always be fully regulated by the contract concluded between them.

Step 3 - conclude a contract by a temporary agency with a temporary worker.
Having agreed on the conditions of performance of the work and related issues, the temporary agency and the temporary worker conclude the contract, which is the basis for the temporary worker to perform the work. Such a contract may be a fixed-term employment contract or a civil contract. The amount and nature of the duties assigned to the employee determine what the contract should be. If a temporary worker is to perform his or her tasks in the same way as in an employment relationship, then an employment contract should be entered into not a civil contract.

In accordance with Art. 26 Section 2 of the u.z.p.t, the provisions of Art. 8, 9, paragraph 1 and Art. 23, that is respectively the activities entrusted by the legislature to temporary workers, the ban, the required volume of substantive agreements between the temporary agency and the employer-user and the obligation to inform trade union organizations about their intention to use the temporary work form.

However, if the appropriate form of employment is an employment contract, the temporary employment agency employs temporary workers on the basis of a fixed-term employment contract. Remember that the restrictions on fixed-term contracts referred to in Article 251 of the Code of Criminal Procedure do not apply to fixed-term contracts concluded by a temporary employment agency (section 21 of the Civil Law Act)
An employment contract between a private employment agency and a temporary worker must contain the following concepts:
- the parties to the contract
-to give a contract,
- the user's employers
-the determined time for temporary work for the employer
- the Conditions of employment of temporary worker during the period of work for the user's employer, in particular:
-the type of work to be entrusted to the employee,
- the temporary working time of the employee,
-  the place of temporary work.
- the remuneration for work, date and method of payment of this remuneration by a temporary employment agency.
The agreement may also contain provisions providing for the early termination of this agreement by either party with fairly short notice periods, that is:
-after three days' notice, when the employment contract is concluded for a term not exceeding 2 weeks;
with notice of the week when the employment contract is concluded for a term longer than 2 weeks.

The employment contract concluded with the temporary worker does not apply Art. 177 § 3 CP, that is protection against dismissal during pregnancy.

The employment contract is in writing. If the employment contract has not been concluded in writing the temporary employment agency shall confirm in writing to the temporary worker the conditions of the employment contract not later than the second day of temporary work.


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