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The employment contract and the mandate contract are the two most popular types of contracts regulating the performance of work. They also apply to foreigners coming to Poland to work, so it is worth getting acquainted with the most important information about them.

  1. Employment contract

The employment contract is the basic legal relationship that regulates the mutual cooperation between the employee and the employer. The very definition of an employment relationship can be found in Art. 22 of the Labor Code: “By entering into an employment relationship, the employee undertakes to perform work of a specific type for the employer and under his direction, and at the place and time designated by the employer.”

Contract of employment:
• clarifies the procedure and dates of its termination;
• the employee undertakes to fulfill certain obligations at the designated place and time;
• it is payable – you cannot waive the right to the payment,
• creating an employment contract instead of a mandate contract does not cause any negative legal consequences for the employer;
• the employee is obliged to perform the work in person and to follow the employer’s instructions;
• the main part of the wage should be paid monthly;
• it should be in writing;
• the employee is voluntarily subordinate to the employer;
• the person performing the employment contract is compulsorily covered by social and health insurance

Pension contributions are paid and you are entitled to a pension. It is also possible sick leave, paid 80%, as well as holiday, maternity or childcare leave.

  1. Contract of mandate

It is a civil law contract and therefore the provisions of the Labor Code do not apply. The consequence of this is the fact that the contractor is not really an employee of the company, and thus most often does not receive any benefits or rights on this account. The contractor who concluded a mandate contract with the principal is not entitled to holiday or parental leave, so he cannot take advantage of the care of a child or a parent in case of illness. In addition, it is worth bearing in mind that the contractor is subject to voluntary sickness insurance. This means that the employee must apply for sickness himself, and the sickness benefit is, as a rule, entitled to him after the waiting period (90 days) and is collected from gross remuneration.
When deciding to conclude this type of contract, carefully determine the scope of the rights and obligations arising therefrom. One of the most important are the points relating to the remuneration, its amount and the date of the contract. However, it should be remembered that contractors do not enjoy full employment rights and are subject to the provisions of the Civil Code, and not labor. This means that the performance of work under a mandate contract does not count towards the number of years of service. However, it is taken into account when calculating the old-age pension, but only on the condition that old-age and disability pension contributions have been previously paid on the collected remuneration.

Contract of mandate:
• there is a civil law relationship between the parties;
• can be bound in any form: orally, in writing or implicitly;
• if the mandate contract is concluded for a period longer than one month, the remuneration should be paid at least once a month;
• creating a mandate contract instead of an employment contract is an offense against the employee’s rights and is subject to a fine;
• the ordering party and the order taker are equal entities;
• it can be paid or free of charge;
• the employee is not required to perform the duties described above at the designated place and time;
• can be terminated at any time;
• as a rule, the person accepting the order should perform work in person. However, he may, in certain cases, with the client’s consent, transfer the service to another person.
• the person providing the order is subject to the necessity of social insurance, unless he meets the conditions clearly described in the Act on Social Insurance Institution.

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  1. Differences between an employment contract and a mandate contract

The name of the contract concluded by the parties does not affect the nature of the employment, as the employment relationship is determined by the scope of the employee’s professional activities and the manner in which he or she fulfills them. An important discrepancy is the issue of remuneration – the mandate contract allows for the payment of receivables in a different amount than every month, unless, according to the arrangements, the contract is completely free of charge or other regulations have been specified. Sometimes employers decide to use a mandate contract in order to optimize the costs of hiring and retaining an employee. An employment contract, however, cannot be replaced by a mandate contract, especially if the above-mentioned criteria of a standard employment relationship are met, or the following circumstances occur: permanent place of work, specific time frames, organizational subordination, accounting for official orders, performance of duties in person, continuity of service and absolute payment of wages.

In summary, the mandate contract is a less burdensome obligation for the client, which is why employers are so eager to look for the possibility of establishing cooperation on the basis of this type of contract. However, it is worth remembering about its disadvantages for the employee. It should also be remembered that it is not the name that determines its legal qualification. Employment that is actually performed under the conditions set out in the Labor Code is employment based on an employment relationship, regardless of the name of the contract concluded by the parties. The person performing the work, as well as, for example, the Social Insurance Institution, may prove that the contract called by the parties a mandate contract or a contract for specific work is in fact an employment contract.

Author: The Migration Bureau

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