Dr Ariel Przybyłowicz, assistant professor at the Department of Labour Law at the Faculty of Law, Administration and Economics of the University of Wrocław, legal advisor. Author of studies in the field of labour law and social security law.
The author critically analyses Article 16(1e) of the Social Security Act. This provision, as an element of the so-called Polish Order, is intended as an instrument to counteract black employment. It consists in imposing the burden of financing the entire social insurance contributions on the payer in the event of the discovery of illegal employment or underestimation of the assessment basis for contributions. However, analysis of the provision leads to the conclusion that it does not apply to civil law contracts at all. It may also not apply to the situation of failure to register for social insurance if the formal and legal requirements for the conclusion of an employment contract have themselves been met. Thus, the provision may not fulfil its purpose: affected insured persons may continue to be afraid to report irregularities in this respect in order not to risk having to reimburse part of their social security contributions.
In this text, the author presents possible directions for legislative changes in the field of social insurance coverage of employees employed on the basis of civil law contracts. In accordance with the document of the National Recovery Plan, the Polish government has undertaken to change the rules of subjecting contractors to social insurance by making these contracts 'fully contributory'. The author points out that the extension of the insurance obligation may take place to a narrower or broader extent (leaving the contract of mandate as a general social insurance title or qualifying it as an absolute title). At the same time, he draws attention to additional aspects (the lack of legitimacy of maintaining the subjective exemption in Article 6(4) of the Act on the social insurance system or the possibility of making contracts for specific taks subject to the obligation of social insurance). Keywords civil law contracts, civil law employment, insurance title, accumulation of insurance titles
The subject of the article is to present the entitlements of the National Labour Inspectorate (NLI) in determining the existence of employment relationships. The analysis shows that the legal instruments available to NLI inspectors in this regard include referring the employer to an application, conducting misconduct proceedings or bringing an action to the labour court for establishing the existence of an employment relationship. In practice, these measures are ineffective. Under the current legal status, labour inspectors are not entitled to issue administrative decisions establishing the existence of an employment relationship. However there are certain arguments of a dogmatic and legal nature for granting them such an entitlement, which, would also require the creation of an appropriate appeal procedure, which should be similar to the appeal procedure against the decisions of the Social Insurance Institution.
In the article, the author analyzes the possibility of combining a doctoral scholarship with maternity allowance in the case of childbirth or admission of a child during the education at doctoral school. The legislator, by allowing the PhD students to voluntarily take part in sickness insurance, has also granted tchem the right to benefits from this insurance. However, this right can be completely illusory in practice. PhD students retain the right to doctoral scholarship, which is obligatory for all doctoral students. Although if a child is born or a child is brought up, a doctoral student may suspend his education, but he is still entitled to a doctoral scholarship. If this scholarship is qualified as remuneration obtained under "scientific employment", the provisions of the Benefit Act would exclude the possibility of obtaining maternity allowance. It would be pointless to join the sickness insurance in this case. If we don't recognize the doctoral scholarship for a sui generis type of remuneration, it would allow the PhD students to receive simultaneous both maternity allowance and scholarship, which would be incompatible with the purpose and function of maternity allowance and also incompatible with the system assumptions of the Polish social insurance system.