Employee outsourcing and temporary work - basic differences

The increasingly popular employee outsourcing is often confused with temporary work. However, it should be remembered that the National Labor Inspectorate and the Social Insurance Institution (ZUS) quite heavily inspect contracts created by entrepreneurs in order to detect whether in a given case there is actual or apparent employee outsourcing. In this article you will find out what is employee outsourcing and temporary work.

1. Legal basis

Employee outsourcing has no regulations, and the outsourcing contract is the so-called an unnamed contract. The outsourcing is carried out in accordance with the provisions of the Civil Code. For this purpose, the provisions of the mandate contract are usually used.

Temporary work is regulated by law. In this case, the Act on the employment of temporary workers is in place. The act regulates the relations between economic entities.

In the case of outsourcing, the performance of services is entrusted to an external entity, while in the case of temporary work, the working conditions of temporary employees should be agreed at the employer-user (in accordance with Article 9 of the Act on the employment of temporary workers).

2. Employee outsourcing and temporary work - entities

Employee outsourcing defines entities as the principal and the contractor, and in the case of temporary work as a temporary work agency and employer - the user.

3. Ordering tasks

An entrepreneur who has decided to outsource outsourcing assigns tasks to an external service provider. The client does not control the performance of the tasks, but can only define his expectations regarding the performance of the service provider. He may periodically check the activities of the service provider. However, such controls cannot turn into constant supervision of the outsourcer and its employees.

4. Employee outsourcing and temporary work - management

The formal and actual employer of the employees performing work for the client is the outsourcing company. It is this company that employs and supervises employees.

As for temporary work, temporary workers are under the management of the employer-user. It is he who organizes the tasks of such employees and supervises their performance.

it should be noted that management is the criterion that is most thoroughly examined during PIP or ZUS inspections.

5. Type of work performed

The outsourcing agreement stipulates that employees of the external company can perform any type of work. It is completely different in the case of temporary work. These restrictions are specified in Art. 8 of the Act on Employment of Temporary Workers. Such an employee cannot be commissioned to work:

• especially dangerous,
• in the position where the employee of the employer-user is employed, during the period of the employee's participation in the legal strike,
• the same type as the work performed by the employee of the employer - the user with whom the employment relationship was terminated for reasons not related to the employees in the last 3 months preceding the expected date of commencement of temporary work by the temporary employee, if such work was to be performed in any organizational unit of the employer a user located in the commune in which the organizational unit in which the dismissed employee was employed is located or was,
• requiring the security guard to be armed with firearms or items intended to incapacitate people with electricity, the possession of which requires a permit.

6. Time restriction

The time of hiring employees in accordance with the principles of outsourcing is not limited.

In the case of temporary work, Art. 20 of the Act on Employment of Temporary Workers specifies such a time limit. Pursuant to the regulations, a given temporary employee may perform temporary work for one employer - user for a period not exceeding 18 months in total in a period of 36 consecutive months. Thus, a temporary employee may perform work for one user employer for 1.5 years within 3 years.

7. Remuneration for work

The outsourcing company is free to determine the remuneration of employees. It only needs to take into account the minimum wage for work or the minimum hourly wage.

In the case of a temporary employee, his remuneration must correspond to the remuneration of the employer's user.

8. Employee outsourcing and temporary work - consequences of breaking the rules

In the event of an inspection by the National Labor Inspectorate, it may come to the conclusion that an already concluded employment contract or civil law contract must be reclassified to the same contract, but performed in the form of temporary work. Such action may have financial consequences for both the outsourcer and the client.

If a given contract is signed with a foreigner, and PIP concludes that the outsourcing was defective, it may have negative consequences in relation to the foreigner's further stay in Poland.

If, during the inspection, it becomes clear that the entity provides temporary work services instead of outsourcing services and is not entered in the register of employment agencies, it may result in a fine of up to PLN 100,000.