Basis for Employment Under Polish Legislation
The Polish legal system foresees two modes in which the contractual employment relationship may be established. They include employment pursuant to a concluded employment contract and employment under a civil law contract. The main feature that distinguishes between these two types of employment is the subordination of the employed entity to the employing one. Work under an employment contract involves a high degree of subordination of the employee to the instructions of the employer. Employees employed under an employment contract are subject to strong protection. The protection refers to worktime limits (as a rule, the worktime of an employee cannot exceed, on the average, 40 hours per week), safe and hygienic work conditions or the protection of remuneration for work (all workers are entitled to a minimum remuneration for work, which guarantees that the employers will not offer them wages that do not allow for a minimum standard of living). On the other hand, employment under civil law contracts, where the process of performing work is, to a great extent, at the discretion of the parties (both in terms of the manner of performing work and work organization), does not guarantee such a wide extent of protection. However, even for civil law contracts, Polish legislators have introduced provisions to guarantee minimum rates for an hour of work that corresponds to the rates guaranteed to workers employed under employment contracts.
The Essence of the New Regulation
Under the harvest help contract, farm workers must perform work during the harvest of crops that belong to the agricultural sector at a specific location at a farm and for a definite period of time, while farmers must pay the agreed remuneration for the help provided. The harvest help contract specifies the scope of actions performed by the farm worker pursuant to that contract. The total duration of providing help in harvest pursuant to harvest help contracts concluded by one farm worker cannot exceed 180 days per each calendar year. The farmer must provide the farm worker with the appropriate tools required for the harvest. Help during the harvest must be provided personally.
Thus, the farm worker is generally obliged (with respect to the location at the farm and the time period) to perform specific services. He or she is also organizationally related to the employing entity (the farmer), as it is the farmer who provides the farm worker with the appropriate tools, as with employment contracts. However, although the nature of employment of such farm worker is quite similar to that of employment under an employment contract, the legislature has decided, in the Act, that performing work under a harvest help contract does not constitute employment as defined in the Labor Code. Thus, the workers have been excluded from the protection guaranteed by the provisions on work under employment contract, although, in fact, the harvest help contract is otherwise similar to an employment contract. Moreover, farm workers do not enjoy a series of rights guaranteed both by the Constitution and by acts of EU, European and international law. The main unprotected areas include:
- Lack of protection of remuneration for work. This means that the remuneration of the farm worker is not subject to the obligation to ensure the minimum remuneration for work that is guaranteed to all employees and parties to certain civil law contracts (contract for services). Thus, the determined level of remuneration paid to farm workers may be very low. Because social security benefits are calculated based on remuneration (as is the basis for calculating social security contributions), the social security benefits may also prove to be very low.
- Lack of protections requiring safe and hygienic work conditions. In general, entities that enter into employment contracts with their employees must ensure safe and hygienic work conditions. However, legal regulations quite often extend the obligation to ensure safe and hygienic work conditions beyond the employment relationship, including towards persons who perform work under civil law contracts (i.e. contract for services). The discussed regulation, however, does not extend such protection to workers working under harvest help contracts, notwithstanding the dangerous nature of farm work. Particular omissions include any requirement to provide meals and drinks for farm workers (even if they work for the whole day), the standards for using tools, and the standards for carrying loads (so that even a pregnant woman may be instructed to carry very heavy objects).
- Lack of protection regarding working time. The harvest help contract regulation does not provide any limits on daily or weekly working time. Neither does it regulate the right to holiday leave or days off work. Thus, if the working time of a farm worker cannot exceed 180 days per calendar year, one may assume that in certain cases, workers will work for the whole duration of this period. Moreover, such persons will not be entitled to days free from work or holiday leave during that time.
Farm workers are subject to farmers’ social security with respect to accident insurance (against the consequences of accidents at work), sickness insurance, and maternity insurance. However, they are not entitled to retirement insurance (which guarantees retirement benefits). Thus, there is a risk that persons employed pursuant to the new regulations will not receive any retirement benefits after they reach the retirement age.
To conduct a full assessment of the introduced new regulation, reports on its practical application will be required. Such reports may be created after the first season of its application, i.e. at the end of this year. However, as of now, one may firmly emphasize that the standards created by the harvest help contract diverge significantly from the guidelines established by virtue of both the Constitution of the Republic of Poland (including, e.g. the common right to safe and hygienic work conditions) and by acts of transnational legislation.
