Kontrowersje wokół wykonywania pracy na rzecz własnego pracodawcy w rozumieniu art. 8 ust. 2a ustawy o systemie ubezpieczeń społecznych a zgodność tego przepisu z Konstytucją RP

Abstrakt

ON CONTROVERSIES OVER INTERPRETATION OF THE PHRASE “PERFORMING WORK FOR THE BENEFIT OF ONE’S EMPLOYER” WITHIN THE MEANING OF ARTICLE 8 SECTION 2A OF THE SOCIAL INSURANCE SYSTEM ACT AND CONSTITUTIONALITY OF THAT PROVISION

The article discusses controversies over interpretation of the phrase “performing work for the benefi t of one’s own employer” within the meaning of Article 8 section 2a of the Social Insurance System Act. The author criticizes interpretation of this phrase based solely on abstract theses formulated in individual judicial decisions, especially the ones of the Supreme Court. When detached from facts on which they were based, they can lead to unreasonable interpretation of the provision in question. The phrase “for the benefi t of one’s own employer”, should be construed through the prism of a relation that takes place in a typical employment relationship. In the three-subject configuration, when services are provided to the employer and the role of the third party is reduced to placement of workers which makes them similar, in terms of scope of their business, to temporary work agencies, this results in recognition that under service contracts concluded with those workers work is provided for their employer. It is quite diff erent for the situation where the third party is obliged to provide employer with a particular product, which is produced in the course of their business. Then, the key factor should rely on establishing whether the party in question bears organizational, technical and production risks related to manufactured products. Furthermore, considerations contained herein lead to the conclusion that the normative content of Article 8 section 2a of the Social Security Act settled in the Supreme Court’s case-law is incompatible with the principle of citizens’ trust in the state and its law. Article 8 section 2a of the Social Security Act itself, at least when it comes to performing work for one’s own employer within a civil-law contract concluded with a third party, is incompatible with Articles 217 and 64 section 3 of the Constitution of the Republic of Poland. Thus, opinions on how the law should stand were made herein.