The law allows you to “hire” employees through both a temporary employment agency and a bodywork leasing contract. What is a bodywork rental contract? What type of job can I use to “recruit” an employee? Can a bodywork rental contract be considered as a contract with a temporary employment agency?
What is body leasing?
Staff leasing (or staff outsourcing) is a contract under which entity A commissions its staff to provide services to entity B. The parties to a staff leasing contract are contractors. The parties to a staff leasing contract are contractors – on the one hand, the entity lending staff to the other – and on the other, the contractor who will benefit directly from the services provided by the staff on loan.
It is therefore a contract whose object is the work (or services) of a given employee, which he or she will provide for a certain period of time to an entity other than his or her employer. One of the characteristics of this legal relationship is the identity of the tasks performed by the employee for the initial employer (the “lending” entity) and for the entity using the services provided by the borrowed employees. Hired” employees can therefore only perform for another entity the tasks specified in their respective employment or civil law contracts (e.g., an analyst may provide services to the lender in the same field – and not, for example, management or human resources services).
A contract for the hire of a body is by its very nature a contract for the provision of services. However, it differs from a contract of agency in the classical sense mainly in that the object of the contract (the services) is not performed by one of the contracting parties, but by a designated member of staff.
A staff outsourcing contract is generally concluded for a predetermined period of time. However, because it is not a named contract (i.e. regulated in detail in the Civil Code) and enjoys the advantages of contractual freedom, it can be concluded for an indefinite period.
Equipment leasing
Personnel who are the subject of a “loan” may be employed by the original employer under an employment contract or a civil law contract (service contract, agency contract, b2b contract). In the case of a civil law contract, the loan of an employee requires only the employee’s consent.
In the employment relationship, on the other hand, the outsourcing of personnel takes place in two ways: either by commissioning work to be carried out for another entity, or by granting unpaid leave to temporarily carry out work for another entity.
When an employee is seconded to carry out work for another entity, these tasks are performed within the framework of the original employment relationship, and do not entail any change in the obligations of the employer concerned (particularly as regards the obligation to pay wages).
However, the procedure for granting unpaid leave will result in the suspension of the original employment relationship and the need to conclude a contract binding the employee to the bodywork hire company. The period of unpaid leave granted for the performance of a coach hire contract is counted as part of the period of service with the employee’s original employer, and the employer itself is obliged to take the employee back to work at the end of the leave.
Bodywork rental or temporary employment agency
Despite the lack of uniform case law on the subject, the majority of courts favor a solution that treats bodywork hire as a contract in its own right – and not as an attempt to circumvent the law.
This position is indicated above all in the Supreme Court’s judgment of October 3, 2017 in the case conducted under number II UK 488/16. The theses contained in the justification state that the mere fact of being an employer does not imply the right to perform intermediation services between its own employees and third parties (i.e. the de facto performance of the tasks of a temporary employment agency). They also point out that, unlike a contract with a temporary employment agency, the object of the bodywork rental contract will be the work – not the employees.
Supreme Court judgment of October 3, 2017. (II UK 488/16):
An agreement between parties, none of which is an employment agency (including a temporary employment agency) within the meaning of Article 18(1) of the Law of April 20, 2004 on the promotion of employment and labor market institutions (consolidated text: Official Gazette 2017, item 1065, as amended. ) – known as “body leasing” (in other words: personal, skills outsourcing), whereby one entity commissions its employees to carry out work in another entity and receives remuneration for doing so, is in fact a contract for the provision of services between economic entities – the seller of the service (employer) and the buyer of the service (third party). Since the mere status of employer does not entitle it to provide labor intermediation services between its own employees and other entities, the object of the economic turnover, whatever the contract may be called, is not the employees, but their work. In other words, in such contracts, the commodity to be exchanged for payment is the work, not the people performing it. Thus, in an employee-employer contract, the activities performed, in this case, in another company, remain tasks arising from the employment relationship, for the performance of which remuneration is due from the employer, and neither contracts concluded between contractors, nor contracts concluded with employees by another entity, are exempt from this obligation.
Accounting for a bodywork rental contract
The remuneration due under a bodywork rental contract (i.e. the remuneration of the employer who “provides” the personnel) is generally determined by invoicing either working days (man-days) or working hours (man-hours).
However, the mere fact of hiring staff does not alter the employer’s (or principal’s) obligations towards employees. The contractor who assigns staff to work is therefore still obliged to pay wages, contributions and taxes arising from the fact of employment.
There is, however, one exception, namely when an employer grants an employee unpaid leave to perform work for another entity. In this case, the beneficiary is responsible for paying the wages and any applicable contributions and taxes
Z doświadczenia naszej kancelarii wynika, że branża IT jest jedną z częściej korzystających z kontraktów B2B w relacjach: podmiot „zatrudniający” – programista. Z tego typu umów korzystają też coraz częściej zagraniczne podmioty, poszukujące w Polsce wykwalifikowanej kadry IT. Czym charakteryzują się umowy B2B w branży IT i dlaczego właśnie w tym sektorze są one tak popularne?
W praktyce często zdarza się, że określenie „umowa o dzieło” używane jest zamiennie ze „zleceniem”. Choć granica pomiędzy nimi bywa niewyraźna, to jednak każda z tych umów ma służyć innemu celowi i z uwagi na to posiada odrębne cechy.
