The draft prepared by the Ministry of Family, Labour and Social Policy, which is intended as a remedy for problems with contracts of order and fictional self-employment, introduces an additional administrative obligation for millions of entrepreneurs starting on June 1st. The requirement of evidencing working hours is nothing else than creating further administrative barriers.
According to the draft, entrepreneurs will be required to evidence working hours when realizing orders, providing services or personally conducting economic activity. Such a requirement is acceptable in situations where wages depend on the number of working hours. However, remuneration is often calculated in a lump sum or as a provision – in those cases, evidencing working hours would be inappropriate to the nature of the legal relation.
Evidencing working hours could be justified only with regards to contracts based on minimum per hour wage. However, introducing it to contracts of all forms would be just another administrative obligation, the realization of which could be a fiction. The draft does include exceptions, but solely when it comes to attorneys and solicitors. This is explained by the fact that the wages in these professions far exceed 12 PLN per hour. The creators of this solution have apparently forgotten about a number of similar professional groups such as doctors, architects or managers. Therefore, the catalog of exceptions should be broadened or removed altogether.
The draft includes a solution for situations when evidencing working hours is impossible. Employees would present employers would present employers with written declarations on the number of working hours. It should be noted that employers would have no tools to verify this information, which might lead to abuses. Such a mechanism increases the risk of conflict between the parties of the contract with regards to working time and the remuneration due. These would be settled by civil courts, leading to a further slowdown in court procedures.
One should keep in mind that evidencing working time is a defining characteristic of contracts of employment. Notably, this is pointed out in the justification of the amendment under discussion. Evidences will be controlled by National Labour Inspectorate. There is a possibility that the Inspectorate will question the contracts and treat them as contracts of employment. Furthermore, failure to comply with the obligation to evidence working hours may result in a fine of 1000 to 3000 PLN.
It should be pointed out that the obligation to evidence included in the draft is far more strict than in the case of contracts of employment. What is more, labour law does not introduce restrictions as to the manner in which working hours should be evidenced – thus, digital evidencing is also legal. However, new regulations do not include such an option.
Bureaucracy will in no way contribute to meeting the objectives of the draft – restricting the number of contracts of order or the phenomenon of fictional self-employment. On the contrary, it may stimulate interest on contracts of order and facilitate the growth of the grey market. Therefore, the drafted solutions should reflect the specificity of various employment forms. Otherwise, evidencing working hour will be yet another irrelevant burden and a fiction in practice.
Wioletta Żukowska, expert of Employers of Poland