Expert Report. in the construction industry in Poland

Transcription

1 Self-employment and bogus self-employment in the European construction industry Expert Report Self-employment and bogus self-employment in the construction industry in Poland Dr Anna Kwiatkiewicz 1 Project carried out with the financial support of the European Commission 1 The author is Manager at BPI Polska, has a sound experience in the EU-fund projects in the field of employment and social affairs, she is also Associate Professor at the Warasw School of Economics (SGH) at the Department of Human Resources Management. 1

2 SELF-EMPLOYMENT AND BOGUS SELF-EMPLOYMENT IN THE CONSTRUCTION SECTOR - POLAND 1. The demarcation between direct employment / genuine self-employed and genuine self-employment / bogus self-employment. Direct employment: the Labour Code (Dz.U Nr 24 poz. 141, Ustawa z dnia 26 czerwca 1974 r. Kodeks pracy) defines employee and employer rights and obligations. It also provides the definition of employee and an employer: employee is a person employed on the basis of the employment contract, appointment to a post, election, designation or cooperative employment contract (Dz.1, rozdz. I, art. 2); employer is an organizational unit, even if it does not hold legal entity status, as well as physical person, if they employ employers (Dz.1, rozdz. I, art. 3). There are not any other regulations concerning employee and employer relations; possible stipulations concerning employment relations included in the collective agreements cannot be less favorable then those stipulated by labor law. Genuine self-employment: genuine self-employed are economically-active people, not employed on employment contracts, but who own their own businesses and provide services to one/multiple clients; business (economic) activity was defined in the Freedom of Business Activity Act of 2004: art. 2 stipulates that business activity consist of for-profit production, construction, commercial and service activity, in prospecting for, exploring and extracting useful minerals, and in professional activity pursued on an organized and continuous basis. On the basis of Personal Income Tax Act self-employed are entitled to a flat-tax rate of 19% on their aggregate income. On 1 January 2007 the definition of business activity was further detailed - in order to be entitled to a 19% flat-tax rate self-employed have to comply with 3 rules: The self-employed hold entire responsibility for provided services; The business activity is not performed under management and in a place and time indicated by a client; The self-employed takes up economic risk linked to his/her providing services. These three conditions have to be fulfilled jointly. Moreover, to maintain the right for a flat- 19%- tax rate an employee who used to have an employment contract with an employer for whom now he/she provides services, he/she has to have at least one client other than his/her former employer during fiscal year. In Poland it is possible to group self-employed in 4 categories: employers with employees; own account workers : they do not run their own business, but work on the basis of civil law contracts, there are 2 types of these contracts: - agreement for performance of specific tasks (umowa o dzieło) which stipulates that there is a final, tangible product and intellectual property rights to this product are transferred to the client who, from now on, can dispose it as he wants; - mandate agreement (umowa zlecenia) which stipulates what activities and when are to be performed; traditional self-employed (freelancers, artists, artisans, etc.), sometimes called free professions ; bogus self-employed who, in reality, are employees. Demarcation: employee works for the benefit of an employer and works under his management, whereas self-employed provides services for the benefit of his/her client and works independently; self-employed are not the subject of Labour Code. 2

3 Bogus self-employment: is a situation of a false self-employment, it means that selfemployed provides services for an employer, but de facto their relation is a relation of subordination (dependent employment): self-employed does not account any responsibility for provided services, self-employed works under management of a client who is de facto employer and he/she indicates place and time where business activity is to be performed, so de facto where an employee works. Demarcation: self-employed is someone who provides services for his/her client(-s), while bogus self-employed is someone who acts as a regular employee, but legal basis of cooperation is not an employment contract, but cooperation agreement (commercial contract) and instead of getting monthly salary he/she issues invoice for his/her work. The decisive factor in deciding whether self-employment is genuine or bogus is the way in which the work is performed. The National Labour Inspectorate representative outlook 2 The National Labour Inspectorate representative claims that court often looks at the intentions of the parties and their will as to the type of the contract. In reality, the will of the parties is binding and defines type of the relation, and the court has to respect it - as a consequence, only when employee claims bogus self-employed the case can be won. There were cases when the National Labour Inspectorate representatives took bogus selfemployment cases to the court, but these cases were dismissed as both employer and employee claimed that such a relation was their will. It is worth stressing that the National Labour Inspectorate is entitled to examining only regular employment contracts, therefore self-employment is not of an interest of the labour inspectors, unless there is a claim on bogus self-employment. Table 1. Structure of employment in construction sector ( ) 3 Category/Year Total employment in the sector Self-employed Own account workers Undeclared work is defined in the law on employment promotion and labour market institutions (Dz..U Nr 99 poz. 1001, ustawa z dnia 20 kwietnia 2004 r.) and in other regulations linked to performing work in Poland by foreigners. According to these regulations undeclared work is a situation of employment when: - employment contracts and working conditions are not confirmed in writing in a due time; - employee is not registered in the social security system; - an unemployed takes up work without informing appropriate private labour office; - employed foreigner does not hold a valid work permit or he/she is employed on a different post (or under different working conditions) than stipulated by the work permit The impact of regulation and deregulation in this field. Employment relations are regulated by the following legal regulations: - The Labour Code (Dz.U Nr 24 poz. 141, Ustawa z dnia 26 czerwca 1974 r. Kodeks pracy) is the key legal act defining relations between employers and employees. It sets out the conditions under which work can be carried out in Poland; 2 All the National Labour Inspectorate representative opinions were formulated on the basis of the interview conducted with Mr Jarosław Leśniewski (National Labour Inspectorate) in Warsaw on 9 September Source: conference material J. Czarzasty, Self-employment in Poland: recent trends and prospects, Vilnius, 7-9 June 2007; 4 Praca cudzoziemców w Polsce. Definicje (Employment of foreigners in Poland. Definitions) 3

4 - The Labour Code (Dz.U Nr 24 poz. 141, Ustawa z dnia 26 czerwca 1974 r. Kodeks pracy) is the key legal act defining relations between employers and employees. It sets out the conditions under which work can be carried out in Poland; - Law on employment promotion and labour market institutions (Dz..U Nr 99 poz. 1001, ustawa z dnia 20 kwietnia 2004 r.) which defines obligations of the state as regards to employment promotion, easing effects of unemployment and professional activation; - Law on temporary employment (Dz.U Nr 166 poz.1608, ustawa z dnia 22 września 2003) which defines rules for temporary employment and for cooperation between temporary work agency and the employer-user (client of the temporary work agency); According to this law temporary work means performing work for a defined employer user for the time not longer than defined in the law ; performed tasks include tasks of a seasonal or periodical nature or in case of emergency, tasks which would not have been otherwise completed by the employer-user in a due time, tasks which were to be performed by an absent regular employee. - Different laws regulating employment of foreign workers. Running business activity is regulated by the following legal regulations: - the Freedom of Business Activity Act (Dz.U. Nr 173, poz.1807, ustawa z dnia 2 lipca 2004) which stipulates definition of business activity; - Personal Income Tax Act (Dz. U Nr 80 poz. 350, ustawa z dnia 26 lipca 1991 r. o podatku dochodowym od osób fizycznych) - amended in 2004 which stipulates conditions under which business activity can be treated as self-employment and can be eligible for a flat-19% tax rate(see pg.1 for details); - Business Activity Law (Dz.U.z 1999 r. Nr 101, poz z późn.zm.) which defines rules for taking up and exercising business activity on the Republic of Poland territory as well as tasks of public administration and local authorities as regards to economic activity. Subcontracting is not defined in the Polish law system; the definition of a sub-contractor can be derived from different regulations: sub-contractor can be physical person or organizational unit not holding a legal entity status. In case of the construction sector subcontractor can be a partner, who together with the principal contractor will be realizing the project, will deliver building materials necessary for realizing the project or will provide the principal contractor with specialized services necessary to realizing the project, i.e. geodetic services Self-employment/ bogus self-employment and legislation Universal definition of self-employment does not exist in the Polish law system; recently trade unions have been evoking the need of introducing such a definition. In the present legal situation anybody can register as self-employed and in any profession/craft; there are not any specific, preliminary conditions that have to be fulfilled. There are not any checks on qualifications that are required while registering self-employment in the construction field. National qualifications standards for some construction professions have been developed in cooperation with the Ministry of Labour, but complying with them is not mandatory while registering business activity. There are not any laws that would result in increasing or decreasing self-employment or bogus self-employment in the construction sector. In Poland the self-employed have the status of a physical person running business activity (individual person with VAT number). Registering self-employment: - Own account workers perform their tasks on the basis of agreement for performance of specific tasks/mandate agreement - signing appropriate contract starts self-employment (and registering with Social Insurance Institution in some case); - In order to register the business activity one has to fill in a registration form and deliver it to the Municipalty (Urząd Gminy) that runs Economic Activity Register; other filled in appropriate forms (REGON number registration - statistical number, NIP [Personal Income Tax] registration or, most often, actualisation and optionally VAT-R registration] can also be 4

5 submitted to the Municipality which will send it to appropriate institutions; the cost of registration is 100 PLN [approx. 35 EUR] and 50 PLN [approx. 17 EUR] for each alteration). The required documents are: ID card, filled in registration form; - While business activity is registered self-employed is obliged to collect statistical number (REGON) from the Central Statistical Office. The required documents are: ID card, confirmation of entry into the register of enterprises; - Opening a bank account requires the following documents: ID card, confirmation of entry into the register of enterprises, REGON number and enterprise seal; - Registering the business activity in the Tax Office and providing information on the type of declarations and when this will be submitted requires the following documents: ID card, confirmation of entry into the register of enterprises; REGON number, document confirming right for business premises and the bank account number. This has to be done prior to performing any tasks which would imply issuing invoice and paying taxes; - Choosing the tax regime: most often a19%-flat tax rate; - Filling in and submitting appropriate documents to the Social Insurance Institution (Zakład Ubezpieczeń Społecznych, ZUS) in order to do so, the required documents are: ID card, bank account number, copies of NIP and REGON number registration documents, filled in ZUS ZFA form (registration of social security contributor). All these activities have to be done in person; certain advantage is possibility to submit NIP and REGON documents to the Municipality which sends it to appropriate institutions to be processed and scheduling appointment in the Central Statistical Office to receive REGON number by phone. The whole process usually takes up to one month (up to 14 days for the business activity registration in the Municipality, which is the first step in the process). Entrepreneurs claim that the length of registering business activity process is one of the most criticized barriers to development of entrepreneurship in Poland 5. Table 3. Self-employment in Poland: basic figures ( ) 6 Year Total employment Of which, in individual farming Number of self-employed Of which, the own account workers Self-employed as the share of 22.4% 23% 22.4% 21.1% 21% 20.7% 19,5% total employment Of which, the own account 18.3% 19.2% 18.6% 17.9% 17.1% 16.8% 15,6% workers Note: real numbers in thousand. Source: LFS data ( ) ), as of 4th quarter of a year Self-employment/ bogus self-employment in the construction sector Employers association representative outlook 7 According to employers association opinion the share of self-employed in the construction sector is relatively high when compared with other sectors of economy it can be explained by the fact that there is a relatively big number of people who earn relatively good money and register their own companies to avoid paying high taxes and social security contributions. 5 Annex 1 presents reasons why workers prefer self-employment to regular employment contracts. 6 Source: conference material J. Czarzasty, Self-employment in Poland: recent trends and prospects, Vilnius, 7-9 June 2007; slide 5. 7 All employers association representative opinions were formulated on the basis of the interview conducted with Mr Józef Zubelewicz (Polish Construction Sector Employers Organisation) in Warsaw on 24 September

6 Table 4. Self-employment statistics: breakdown by sectors ( ) 8 Year Agriculture, hunting and forestry Manufacturing Construction Trade and repairs Transport, storage and communication Education Health care and social work Note: real numbers in thousands; the first figure represents total employment in the sector; the second total number of self-employed, and the third number of own-account workers Source: LFS data ( ), as of 4th quarter of a year National level trade union representative outlook 9 In the interview trade union representative pointed out that statistical data describing selfemployment in a construction sector is not very informative due to a very broad definition of the construction sector used by the Polish Main Statistical Office (Główny Urząd Statystyczna, GUS); moreover, the results cannot be compared with the European data as the definition of the sector used by Eurostat is different: It is very hard to give any reliable estimations on self-employment or bogus-self employment in the construction sector, it would be even naïve to try doing so. Another challenge in researching self-employment and bogus self-employment are blurred borders between the two and also blurred borders between self-employment and undeclared work. Estimating total employment in the construction sector is additionally complicated by the lack of data concerning construction works performed in the country side (it is entirely undeclared work) and seasonal fluctuations typical for the sector. Self-employment can be found in all sub-sectors of construction sector, especially in building works, but can also be found in construction material production. Construction sector is one of the sectors with the highest share of self-employed. Research conducted by trade union representatives has proven that there is not direct correlation of self-employment with economic cycles good economic situation does not eliminate self-employment, bogus-self employment and undeclared work. In a good economic situation there is a growing demand in the construction sector, and - as a consequence - self-employment and bogus-self employment rise. At present the share of self-employment and bogus self-employment is growing in Poland Source: conference material J. Czarzasty, Self-employment in Poland: recent trends and prospects, Vilnius, 7-9 June 2007; 9 All national level trade union representative opinions were formulated on the basis of the interview conducted with Mr Jakub Kus (ZZ Budowlani ) in Warsaw on 14 August

7 Self-employment is not always forced by employers who often prefer to have regular employees to better exercise control and manage their work. Moreover, quite often there are cases of mixed employment : legal employment is combined with illegal one, especially when services are provided with a use expensive equipment (i.e. crane) some hours are worked legally and some illegally. According to trade union representative some 50% of those employed in the construction sector are self-employed and those working on the basis of agreement for performance of specific tasks/mandate agreement. The latter prevails while employment time is short. The National Labour Inspectorate representative outlook According to the estimates of the National Labour Inspectorate majority of those working in the construction sector and not being regular employees are not self-employed, but the ones working on the basis of agreement for performance of specific tasks/mandate agreement. Employers association representative outlook According to estimates of the representative of employers association approx. 20% of people working in the construction sector are people working on the basis of work contacts alternative to regular employment contract majority of them are self-employed. This estimation also takes into account those workers, who work abroad. There are approx employed in SMEs and between and self- employed and those employed in microenterprises. All this data are just estimates based on the information received from companies - there are no official statistics available. There are different reasons for popularity of self-employment in the construction sector: From employers perspective: seasonality of the sector - smaller risk/lower labour costs for employer; responsibility for the performed tasks and a result-based, not a time-based, pay for employer this is important as it eliminates paying over-time 10 ; improved effectiveness employer is able to engage the best subcontractor and the price for his services is guaranteed as well as the deadline for performing the task; employer is ready to pay more to a self-employed subcontractor knowing that he avoids the following: - paying social security contributions and contributions to the National Disabled Persons Rehabilitation Fund (Państwowy Fundusz Rehabilitacji Osób Niepełnosprawnych, PFRON) from his profit (% of the salary budget); - dealing with sick leaves especially in fall and winter season: approx. 20% of the workforce in on a sick leave, out of which 20-30% is false sick leave; - paying holiday allowance; - creating reserve for pensions and paying compensation packages in case of termination of the contract; - paying daily allowances in case of delegation (approx. 95% of construction workers is delegated). From workers perspective: possibility to choose client-employer self-employed can choose localisations of construction sites favourable for them; ability to work all over Europe 90% of construction workers works outside his/her hometown; higher income a flat 19%- tax rate + some 1000 PLN (approx. 300 EUR) savings on social contribution; flexibility in adaptation to changing economic situation: migration in the job search; development of entrepreneurial spirit translated into improved productivity. 10 In Poland regulation concerning over-time is very costly for an employer: for the first 2 hours of overtime employer pays 50% extra and for the next ones - 100% extra. 7

8 2.3. Self-employment/ bogus self-employment and collective bargaining According to the legal regulation on trade union activity (Ustawa z dnia 23 maja 1991 r. o związkach zawodowych, Dz.U Nr 55 poz. 234) the right to create and join trade union (Rozdz.1 art.2, ust.1) have employees independently on the type of their employment contract, members of agriculture production cooperatives and persons working on the basis of the agency agreement, provided they are not employers. As a general rule both self-employed and bogus self-employed in Poland do not belong to trade unions or any other forms of employee representation. In theory there are not any obstacles for self-employed to join trade unions; in the recent discussion (meeting of the Tripartite Commission on 8 May 2008) on trade union representativity and mandates, NSZZ Solidarność introduced the idea of guaranteeing self-employed possibility to join trade unions. 3. Labour and market developments In Poland, like in other European countries, development of the construction sector is correlated with overall economic situation and possible return on investment: when enterprises invest in a country, it quickly translates into develpment of the construction sector; whenever there are any symptoms of economic slowdown, situation in the construction sector worsens. In the years there was a contruction boom in Poland, followed by a crisis when employment in the construction sector was reduced by some people. Skilled workers were not interested in a regular employment contract as self-employment status guaranteed them more flexibility and more income. At present situation in the construction sector is very good: production grows by 15-17% per year and this favourable trend should last till There is a demand for services of big construction companies as well as individual, usually self-employed workers. Employment in the construction sector grows by 30% - there is a big demand for skilled workers. Recently, inflow of workers can be observed: it is caused by requalifications of workers from other sectors (i.e. mining sector), reverse migration and inflow of young graduates construction firms invest more and more in vocational training, both at the level of vocational schools and higher education (i.e. polytechnic). National level trade union representative outlook Construction sector is a very sensitive sector employment fluctuates depending on the economic situation as well as seasonal fluctuations. Employment in the construction sector is not a subject of any inter-sectoral regulations and the Polish labour law does not correspond to the needs of this sector and emplyment reality in the sector (i.e. seasonal fluctuations). Another example of this misfit is lack of regulations concerning end of the career in the construction sector. Lack of such regulations causes that linking professional career with the construction sector is very risky. It is worth mentioning that recently the situation has changed and since employers encounter more problem with recruitment and maintaining good employees, there are more and more regular employment contracts concluded they ensure that employers have appropriate number of employees with adequate skills. This situation was reported both by trade unions and employer organisations representatives. 11 The report was drafted in September 2008; it has to be taken into consideration that the present financial crisis can influence the future condition of the construction sector. 8

9 Employers association representative outlook Employers association representative believes that cases of bogus self-employment in the construction sector are rather rare - self-employment seems to be a natural form of employment relations in this sector. Cases of bogus self-employment could be observed during economic slowdown of , when employee were talked into setting up their on companies. At present in almost all cases it is their choice their mentality has changed and they have became more entrepreneurial. For a healthy construction company with good perspectives natural employment pattern is a combination of core employees (on regular employment contract) and co-workers (usually self-employed subcontractors) they usually constitute not more than 10% of all workers. Subcontractors are usually companies/workers that provide services which are outside the main specialization of the principal contractor; subcontractors usually have narrow specialization. The chain of subcontracting companies is another natural feature of construction sector. In anticipation of a bigger investment and to ensure workers availability, employers still want to employ people on the basis of traditional employment contracts in fact, at present a growing number of regular employment contracts can be observed. Employers complain about asymmetry of the Polish labour law: according to this law employee can claim his rights, while employer has no sanctions in case employee does not show up at the construction site - which is a frequent problem in the construction sector and bears significant consequences for an employer. A year ago a permanent problem for employers was low level of employee loyalty due to labour shortages. According to employers association representative regular employment contract is interesting for young people who need training (financed by employer) or need to have regular employment contract to get the loan to buy their first apartment. Senior, skilled employees are more independent and have different priorities Loss of social security, fiscal revenue for authorities Self-employed are entitled to a reduced social security contribution as well as reduced taxes while compared with regular employees. Annex 2 presents calculation of social security contributions and taxes for different types of employment contract. Personal Income Tax (PIT) Since self-employed pay a flat-rate of 19% (Personal Income Tax, PIT ), they evade paying progressive Personal Income Tax (PIT) of 19%, 30% and 40% respectively. Table 2. Tax calculation in Poland (2008) progressive tax scale 12 Tax calculation method Over Up to Tax PLN 19% minus 586,85 PLN PLN PLN 7 866,25 PLN + 30% for the income above PLN PLN ,65 PLN + 40% for the income above PLN Value Added Tax (VAT) Self-employed are obliged to pay Value Added Tax (VAT). In general there are 2 rates of VAT applicable to the construction sector: some of the provided services are a subject of 7% VAT (i.e. construction-installation services, reconditioning and maintenance of an 12 As of 2009 the progressive tax scale is to be simplified - there will be only 2 tax regimes in force: 18% and 30%; the flat-tax rate for the self-employed will remain at the present level of 19%. It will be interesting to observe whether this change in the tax system influences the number of concluded regular employment contracts and number of the self-employed. 9

10 infrastructure associated with housing construction); remaining construction services are a subject of a 22% VAT. Social security payments In case of the self-employed mandatory social security contributions are limited to the minimum level, which most often leads to a situation when they are entitled to a minimum retirement pension and minimum sickness benefit. 4. Cross-border employment effects on self-employment and bogus self-employment In Poland the self-employed who want to provide their services abroad, but want to pay social security contribution in Poland, are forced to exercise their business for at least 2 months in Poland before moving abroad- otherwise the Social Insurance Institution is not wiling to confirm E101 form. In fact, only the willingness to run the business should be sufficient to get E 101 form confirmed. When an enterprise exercises business activity in Poland and anther EU country, confirmation of E101 form is not problematic. In case of the construction sector there are other, less complicated ways of performing the work abroad than registering own company; people have the tendency to choose the easiest solutions, i.e. in case of Germany where the labour market is still closed for Polish workers, construction workers were registering themselves with craft associations to ensure legal basis for performing their activity. In case of migrant workers coming to Poland from the third countries these are usually unskilled and low skilled workers and they work illegally. Registering their stay and obtaining work permit would be a too costly option, moreover, they are not interested in profiting from social security system and protection rights. National level trade union representative outlook There are only some work permits issued in Poland each year, approx. 50% of which are issued for managers and for native speakers who work as foreign language teachers. Approx. 90% of those who come from abroad are not declared and do not have work permit. Another tendency is that even if a person is registered, a part of the job he/she may perform illegally, he/she may work longer hours than declared and pay lower taxes than the ones that actually should be paid. The tendency is that unskilled and low-skilled employees come to work in Poland, while a better skilled workers (graduates from vocational schools, usually young people) leave Poland to work in old EU countries. Recently the situation has changed significantly: with Poland entering the Schengen area majority of the third country nationals (Ukrainians, Belarusians) go further to the old EU countries or to Russia as salaries in Poland are not that attractive any more. There used to be more overqualified foreign workers in Poland, usually people who would perform tasks under their qualifications; now migrant workers are mainly unskilled workers that can be engaged to any physical work. These migrations are usually seasonal, which does not promote formalizing the status of a migrant worker. The National Labour Inspectorate has no right to perform any checks on migrant workers unless they are regular employees employed on the basis of the regular employment contract. Recently, there has been a liberalization of the relevant law regulation and migrant workers from Ukraine, Belorussia and Russia can be employed up to 6 months without a work permit there are not any regulations that would stipulate what type of employment contract is to be signed, it can be even an oral agreement. There are plans to extend the period of work without a permit up to 12 months and to make the citizens of Moldova and Georgia also a subject of this regulation. The fee for the work permit has been reduced from 1000 PLN (approx. 300 EUR) to 50 PLN (15 EUR) for a seasonal worker and 100 PLN 10

11 (approx. 30 EUR) for a yearly work permit. Migrant workers report that work permits are not the only problems they encounter obtaining a visa seems to be a big challenge 13. Employers association representative outlook According to employers association migrant workers are mainly workers coming from the third countries and they are either delegated to work abroad (here in Poland) or employed on the basis of regular employment contract. 5. Social security and fiscal (tax) developments Regular employees from construction sector are the subject of the same social contribution regulations and taxes calculation rules as regular employees from other sectors. There are not any other - more or less favourable regulations concerning employment relations in construction sector. There are not any collective agreements signed at the sector level; the only specific regulations concern health and safety norms and technical norms. 6. Self-employment in a triangle relation 6.1. The role of intermediaries There is a law on temporary workers that stipulates relations between temporary work agency, employer-user and temporary worker. No specific regulations concerning temporary work in the construction sector are in place. There are not any measures that would combat intermediaries who organise bogus self-employed workers as the only controls that can be performed are controls performed by the National Labour Inspectorate (Państwowa Inspekcja Pracy) and they examine working conditions only of those who are direct employees. When there were additional controls introduced to eliminate illegal employment, they were not numerous enough and all the illegal workers always managed to flee from the construction site before the control even started. In the light of such inefficiency of measures aimed at eliminating a more serious problem - illegal employment, at the present selfemployment is not a subject of an interest of any control institutions. National level trade union representative outlook Trade unions say they are aware of the situation, but they do not take up any actions as the reality of the construction sector is as it is and any attempts aimed at strengthening controls at the construction sites would result in worsening the situation of the construction workers (less work, less money etc.). Existing measures are evaluated by them as highly ineffective. Sometimes there are quasi-collective agreements concluded for workers hired via intermediaries to ensure decent level of salaries (direct employees). Intermediation is profitable while a big number of employees is required and/or a company regularly uses the intermediation services of a temporary work agency. Before introducing Schengen, intermediation was mainly illegal procedure organized by gangmasters. The National Labour Inspectorate representative outlook According to the National Labour Inspectorate representative temporary employment agency do not recruit construction workers, and do not work with the self-employed as temporary workers are employed by temporary work agency and perform work for employerclient (user-employer). Contracts between temporary agency and employer-user stipulate what are the obligations of the parties in the field of health and safety. Temporary workers cooperate with the agency on the basis of employment contract or on the basis of civil law agreements. 13 Tyle zachodu o Wschód (So much fuss about the East), Gazeta Wyborcza, Dodatek Praca, , pg

12 Employers association representative outlook According to employers association representative temporary work is not very popular in the construction sector. Construction workers usually work in teams (brigades) and they have to be trained. Manager of the construction site is responsible for teams so he/she usually prefers to work with people he/she knows cooperation with new people is a too big risk. The self-employed are not the clients of temporary work agency. It is important to note that the Polish construction companies that delegate their employees for assignments abroad have to employ workers also in Poland only up to 50% of the employed can be sent abroad at the same time. This regulation has been introduced to prevent construction companies from changing into intermediary agencies. 7. Abuse of the status of self-employment (causes, consequences, forms of abuse) 7.1. Causes and origins of bogus self-employment A two-fold perspective has to be adopted 14 : - employer perspective: significant reduction of labour costs (taxes, social security contribution, additional financial and non-financial benefits provided for regular employees, training programs, health and safety training/protection etc.), flexibility in hiring and firing workers (flexible human resources management), transfer of responsibility and risk; as a result services provided by an employer can be cheaper; - employee perspective: smaller tax rates tax optimizing, reduced mandatory social security contribution, more money available immediately for the self-employed than for regular employees, some incentives (i.e. Makro, Cash and Carry card) foreseen for those running their own business; as a result salary /price for services required by a self-employed is lower. National level trade union representative outlook Self-employment is often a choice of an employee, not an employer. Self-employment concerns not only workers with low skills, but also with higher skills, i.e. those who operate the specialized equipment. There is still a significant number of workers who prefer regular employment that gives them more rights (i.e. social fund benfits, holiday allowance, internal loans etc.) and protection than slightly higher income that gain self-employed. There are also employers who prefer regular employment as they believe it enables them to better control workers. This is why foreign companies entering the Polish construction sector offer traditional employment contracts and social benefits package. If the situation in the sector were more stable, more regular employment contracts would be concluded Short and long term consequences of bogus self-employment on: Health and safety There are contradictory opinions concerning influence of bogus self-employment on health and safety standards. All health and safety stipulations as well as health and safety-related training programs are foreseen for regular employees and not for the self-employed (subcontractors), therefore self-employment may potentially lead to worsening of work and safety standards 15. Health and safety coordinators examine health and safety conditions only for regular employees. 14 J. Czarzasty, Self-employment in Poland: recent trends and prospects, Vilnius, 7-9 June 2007; slide Central Insitute for Labour Protection National Research Institute (CIOP), Construction sector- professional risks, ). 12

13 National level trade union representative outlook Trade union representative believes that in a short- and long-term work environment becomes more and more hazardous for the self-employed as they do not participate in any health and safety training. The National Labour Inspectorate representatives outlook The National Labour Inspectorate representative has a contradictory opinion: he believes that health and safety standards have to be secured at the construction site independently on the status of people working there it is the responsibility of principal constructor to guarantee safe work environment. However, in case of accident it may turn out that the situation of the injured self-employed is worse than a regular employee while they are not working, they are not earning any money and sickness benefit to which they are entitled is minimal. Employers association representative outlook Employers representatives believe that health and safety conditions are the same for all working at the construction site independently on their status - there has to be a construction site safety plan accepted and all workers have to undergo health and safety training. The self-employed have to comply with all health and safety norms that are binding for enterprises in the construction sector these are additional expenses for the self-employed. The self-employed is responsible for any damages caused. According to trade union representative, self-employed are very rarely insured against civil liability; there are not any obligations that would make them buy appropriate insurance. Employers organisation representative claims that the self-employed have all necessary insurance, including civil liability insurance. National level trade union representative outlook Construction sector is the first in the ranking of serious accidents, the level of accidents remains unchanged. Trade unions believe that it may possibly rise due to increasing selfemployment. Health and safety is conditioned by appropriate vocational training and when workers are deprived of such a training or have limited access to it as in the case of selfemployed - their professionalism may decrease and they are at a bigger risk while performing their job. The self-employed are not guaranteed protection clothing, but they have to comply with all health and safety regulations/rules. There are not any regulations that would enable principal contractor checking qualifications of the self-employed to perform certain tasks and compliance with health and safety norms. There are cases where the self-employed are reimbursed by an employer for the costs incurred to comply with health and safety norms/training, but such situations are regulated in individual contracts. Serious accidents have to be reported to the National Labour Inspectorate the inspectors examine accident site independently of the employment relation of workers. The only possible abuse is that serious accident will be treated as the light one it is up to employer to decide about the nature of an accident - and will not be reported to the National Labour Inspectorate. Annex 3 presents information from National Labour Institute on exercised controls and accident ratio Vocational training Vocational training which is still not a very regular activity is almost always addressed to regular employees; the self-employed very rarely participate in vocational training programs financed by an employer. National level trade union representative outlook 13

14 According to trade union representative a limited access to vocational training is a serious disadvantage of self-employment: in the construction field there are important developments of new technologies and new materials and they require regular training to update skills. The self-employed have to pay for their training themselves - this is their cost, so they almost never participate in specialised training programs. In the long run there may be a threat of a growing discrepancy in qualifications of regular employees and the self-employed. Employers association representative outlook On the contrary, employers association representatives believe that the self-employed update their skills on the regular basis as they learn on the job. They also participate in training activities delivered by technology or new material providers. However, employers believe that their major problem is that they finance vocational training - already in vocational schools they finance internships and they have no guarantee that the trained young worker comes to work at their company - there are frequent cases of buying trained workers Pensions Self-employment has a serious consequence for the pension system: the self-employed pay minimum social security contribution. Alternative pension schemes or systems such as paritarian occupational pension system for self- employed do not exist. It depends on an individual decision of the self-employed whether he/she wants to invest i.e. in an private investment fund with a view to secure his/her pension; these are not system solutions. According to trade unions representative they hardly ever have additional insurance; on the contrary, employers representative believe that almost all self-employed have alternative investment for pension purposes. Employers association representative outlook According to employers association representative majority of self-employed have additional pension insurance (so- called 3 rd pillar ). These people are aware of their situation on the labour market, are entrepreneurial and take responsibility for their future. They do not count on state social security system, but rely on their own investment that is to pay their future pensions. Lack of knowledge in this respect or insufficient social security contributions are rather typical for people employed on the basis of the civil law agreements these are usually people with low skills and low level of income Social security In case of a sickness or an injury the self-employed is entitled to the sickness benefit 30 days after the accident. This benefit equals 80% of the minimum wage (at present minimum salary in Poland is 1126 PLN, approx. 330 EUR). Most often majority of self-employed pay minimum social security contributions - they are entitled to some PLN (approx EUR) of sickness benefit paid for 9 months. They are also entitled to disability pension if they are not able to come back to work. The National Labour Inspectorate does not act in this field: there is no regulation stipulating what type of social insurance self-employed should have Social inclusion The self-employed are outside the main stream of the labour market and they do not have access to some activities, such as training, developing qualifications, social fund or social benefits. Self-employment is sometimes treated as means to leave the unemployment statute; however, in Poland this is still a very rare situation when unemployed would set up his/her won company to actively create a job for himself/herself and leave the unemployment 14

15 cohort 16. It can be stated that self-employment is rather a feature of skilled, entrepreneurial people willing to take some risk to earn more money. 8. Assessment of prevention and combating measures to tackle bogus selfemployment: 8.1. Investigations, checks and control As of 1 January 2007 there are more checks to examine whether self-employed are entitled to a flat-tax rate of 19% (3 conditions for running business activity see definition of selfemployment in point 1 of this report). It is possible that a self-employed who was forced to set up his own enterprise can take his/her case to the court to claim bogus self-employment and prove that actually he/she should be employed as a regular employee. Checks cannot be performed by inspectors from the National Labour Inspectorate, they can only come to a play when employee claim appropriateness his/her employment relation. On the other hand all working at the construction sites are examined and are treated in the same way as far as health and safety norms are concerned. Health and safety issues are regulated in contracts signed between principal contractor and subcontractors the same conditions are to be guaranteed for all employed- for the given construction site. Only Social Insurance Institution (ZUS) or Tax Office (US) can control the self-employed as regards to social insurance contributions or taxes Prevention Regulating self-employment Since 2004 the direction of changes in legal regulations binding for the self-employed clearly proves that there will be a polarization of employment relation: either there is a cooperation between 2 (or more) business entities (self-employment) or a regular employment contract is concluded (regular employment). In 2004 a flat-rate tax was introduced, but not for the self-employed who provide services for his/her former or current employer. In 2005 reduction in social security contribution was introduced for newly established businesses, but self-employed providing services for his/her former or current employer were not eligible. On 27 October 2006 the Parliament adopted modification of a definition of non-agricultural business activity aimed at eliminating situations when employers would make their workers set up their businesses only to reduce their labour costs, despite the fact that worker performs the same kind of job as while being employed on a regular employment contract. On the basis of the modified law regulations self-employed providing services for his/her former or current employer are not eligible for a flat, 19%-tax rate for the period of a fiscal year since termination of the regular employment contract. As of 1 January 2007, in order to be entitled to a flat, 19%-tax rate self-employed have to comply jointly with 3 conditions for running business activity. In the Parliament there is a draft of a legal act which if passed - would force the majority of the self-employed including all working in the crafts and arts sector to gain additional professional qualifications. Meanwhile VAT regulations were changed, and at present the Parliament sits on a draft of a legal act according to which either one is employed on the basis of a regular work contract or is a VAT payer. Earlier all these employed on the basis of contract other than employment contract (agreement for performance of specific task/mandate agreement) by his/her present employer have to pay full social security contributions. As a result it can be stated that half-way solutions such as self-employment, agreement for performance of specific task/mandate agreement become less favourable over the time. In experts estimations bogus-self employment may be deacresing in the nearest future due to the 16 Samozatrudnienie. Analiza wyników badań (Self-employment. Research results analysis), PARP, Warszawa, 2004, p

16 above changes and possibility of more controls and check ups of the eligibility og the selfemployed status 17. Regulating self-employment in the construction field As an introductory note, it has to be underlined that all suggested measures to tackle bogus self-employment in the construction sector are only preliminary ideas that have not been changed into firm regulations or even draft regulations. National level trade union representative outlook It would be possible to regulate self-employment in the construction sector if complying with national qualifications standards were made mandatory requirement to register business activity. In the Polish reality the principle constructor subcontracts certain parts of the contract to many subcontractors, and at the end of this sub-constructors chain there are the selfemployed. Such a long chain of sub-constructors increases the risk, as the principal contractor is not responsible for work performed by sub-contractors. Trade unions representative believes that self-employment can be limited by growing insurance contributions that would make running business activity more expensive: insurance rate would be linked to the qualifications level of the self-employed or completing relevant health and safety training. Another idea is increasing maturity level of the society and the fact that people will start to realize that the short-term profits such as a higher income are compromised by long-term results such as lower pensions. Another indirect method of controlling/regulating self-employment would be introducing a law on the basis of which contractors overusing self-employment would be eliminated from tendering procedure or the principal contractor would be charged with responsibility for work performed by and conditions of work of the self-employed subcontractors. There is also possibility of introducing a financial incentive: fines for those who employ, and positive incentives to promote those who employ legally. The National Labour Inspectorate engages in activities aimed at promoting legal employment contracts, informs about consequences of illegal employment at the construction sites and provides necessary information regarding legal compliance of employment contracts (see the enclosed cover of the leaflet). Employers association representative outlook Employers representatives believe that 3 conditions justifying self-employment are sufficient ones. They also believe that self-employment is a natural type of employment in the construction sector, therefore limiting it would not be desired. At the same time they believe that if the level of taxes and social contributions was lower, more people would be employed on the basis of regular employment contracts as employers also see advantages of this type of employment relation. 17 Samozatrudnienie (Self-employment) ( ) 16

17 8.3. Combating and sanctions According to all interlocutors, it seems that combating bogus-self employment should be done by promoting regular employment. It would require defining and executing standards of working conditions as well as improving legal environment to promote regular employment. Another potential initiative would be promoting enterprises that have low level of accident rate. In general, a more reasonable approach seems to be civilizing self-employment as there is always a loophole in the legal system so represive measures turn out not to be very efficient. National level trade union representative outlook It is very hard to combat any irregularities in the construction sector and even trade union representatives do not take up any actions against such irregularities as bogus-self employment or extensive overtime this is the reality of the construction sector and fighting it would be taking up an actions against oneself. The National Labour Inspectorate controls construction sites either the ones that were reported as the problematic ones or the biggest construction sites. As far as the irregular employment contracts are concerned the National Labour Inspectorate representatives state that they cannot perform checks on the self-employed, they only examine civil law agreements, and, when relevant, make them changed into regular employment contracts. In the last 3 years there were fewer cases won than before; the number of such cases (changing civil law agreements into regular employment contracts) has decreased if the employee is not supporting the case, the case will not be won. Majority of the National Labour Inspectorate interventions concern workers rights, maternity leave, holiday leave, lenght of notice and discrepancies resulting from differences between regular employment and civil law agreements. Employer may even be fined by the court up to PLN (approx EUR) if the irregularities in the employment contracts are detected (so-called acting against employee rights ). The cases can be taken to the court or even to the Public Prosecutors Office in cases of serious abuses such as criminal offence. Controlling legality of employment of foreigners has been taken over by the National Labour Inspectorate only in the beginning of 2008 due to very short time of executing this task, no data on results is available at the moment. Conclusions: 1. Primary reason for bogus self-employment in Poland is escaping from paying higher taxes (employee) and reduction of labour cost (employer). 2. At present construction sector in Poland is in a good shape more and more often employers are willing to employ workers on regular contracts it ensures that they have right number of committed people with right skills In Poland construction sector is the one with the biggest share of self-employment. Employers organisation representative believes that self-employment is a natural feature of the construction sector, and that the majority of the self-employed are genuine self-employed. 4. There are no legal regulations that would stipulate what type of employment relation is required: the intentions of the parties decide about the nature of employment contract. Both trade unions and employers organisations believe that almost always selfemployed is the choice of an employee and that employers are more and more ofen willing to employ people on regular employment contracts. 5. Self-employment in Poland has similar features as self-employment in the EU, but the Polish specificity seems to be employing construction workers on the basis of civil law agreement (agreement for performance of specific tasks or mandate agreement) 18 The report was drafted inseptember 2008 when there were no signs of financial crisis. 17

18 usually skilled workers are self-employed, while civil law agreements are reserved for unskilled and low skilled workers. 6. Self-employed are not the subject of the National Labour Inspectorate controls: they may become subject of their investigations only when they employ other people. 7. The research has proven that in Poland intermediaries are not active in the construction sector. Before entering into the Schengen area there were more intermediation activity performed usually by gangmasters to bring illegal workers from the Eastern neighbouring countries. Temporary work agency do not act as intermediaries for the self-employed. 8. Bogus self-employment results in lost taxes and social security contributions as well as guarantees only a minimum level of social protection for the self-employed. There are no estimations on how much money is lost. Trade unions believe that social protection is much worse in case of the self-employed, while employers believe that the selfemployed take over the responsibility for their social protection and complement a minimum level of the state-guaranteed social protection with additional, private arrangements. 9. As far as preventive measures are concerned, they are linked more to fighting illegal employment than bogus self-employment. It seems that the general tendency is to streamline employment contracts and to ensure that 2 predominant types of employment relations function on the market: regular employment contracts and enterprises providing services for their clients. 10. According to trade unions representative potential European level regulations could include the following: introducing a directive enlarging scope of responsibility of all the parties realizing the project, this would also imply bigger responsibility of the principal contractor; regulating bogus self-employment all parties would be responsible for legality of a signed employment contracts; responsibility chain would be much tighter, defining acceptable number of subcontractors in the subcontracting chain [Comment AK: seems to be not feasible as it would limit freedom of competition]; working out European definition of self-employment and types of illegal employment - including bogus self-employed. 11. According to employers organisations representative the only possibility to reduce bogus self-employment and self-employment in general is to reduce taxes and social security contributions in other words, to make work reasonably priced. 18

19 Sources 1. Construction sector- professional risks, Central Insitute for Labour Protection National Research Institute (CIOP), 9 ( ). 2. Czarzasty, J., Self-employment in Poland: recent trends and prospects, conference materials,vilnius, 7-9 June Praca cudzoziemców w Polsce. Definicje (Employment of foreigners in Poland. Definitions) ( ) 4. Tyle zachodu o Wschód (So much fuss about the East), Gazeta Wyborcza,Dodatek Praca ( ). 5. Samozatrudnienie. Analiza wyników badań (Self-employment. Research results analysis), PARP, Warszawa, Samozatrudnienie (Self-employment) 1.php ( ). Interviews Name Organisation Function Jerzy Kus Trade Union Budowlani National Secretary Józef Zubelewicz Polish Construction Sector Employers Organisation (Polski Związek Deputy President Jarosław Leśniewski Pracodawców Budownictwa) The National Labour Inspectorate (Państwowa Inspekcja Pracy) Diector, Department of Legal Compliance of Employment 19

20 Annex 1 Graph 1. Reasons for being self-employed - the self-employed opinions Self-employed and their opinion Social security contribution (ZUS) is too high Self-employment implies economic risk Taxes are lower, but it is not ethical Employers force self-employment Self-employment makes finding work easier, also in multiple enterprises I am hapy to have work, the rest does not matter Source: ( ). 20

21 Annex 2 1. REGULAR EMPLOYMENT CONTRACT Gross inome 4 000,00 1) Employee: regular delegated Pension insurance 9,76% 390,40 390,40 Disability insurance 1,50% 60,00 60,00 Sickness insurance 2,45% 98,00 98,00 Base salary 3 451, ,60 Cost of acquiring income 2) 111,25 111,25 139,06 Income 3 340, ,00 Tax 3) 19,00% 634,60 629,47 Monthly tax allowance 48,90 48,90 48,90 Tax monthly tax allowance 585,70 580,57 Health insurance for paid to Social Insurance Institution (ZUS) 9,00% 310,64 310,64 Deductable health insurance 7,75% 267,50 267,50 Tax to be paid 2) 318,00 313,00 Net income 2 822, ,96 Social contribution paid by employer Pension insurance 9,76% 390,40 390,40 Disability insurance 4,50% 180,00 180,00 Injury insurance 3) 1,80% 72,00 72,00 Labour Fund contribution 2,45% 98,00 98,00 Insolvency Fund cntribution 0,10% 400,00 400,00 Total social security contribution: 1 999, ,44 including: - paid by employee 859,04 859,04 - paid by employer 1140,40 114,40 Total cost for employer (salary cost) : 5 140, ,40 1) 4000 PLN is approx EUR 2) employment contract signed with one emplyer 3) fixed free amount and basic tax leve (19%) is taken into consideration - --> annual income up to PLN (approx EUR) 21

22 7. AGREEMENT FOR PERFORMANCE OF SPECIFIC TASKS Gross income 4 000,00 Cost of acquiring income (50%) ,00 Income 2 000,00 Tax to be paid 19,00% 380 Net income 3 620,00 Total cost for employer: 4 000,00 1) Very favourable arrangement: net income is significantly higher than in case of mandate agreement; employer does not have to pay any social contributions. employment contract signed with one employer 8. MANDATE AGREEMENT Gross income 4 000,00 Pension insurance 9,76% 390,40 Disability insurance 1,50% 60,00 Sickness insurance (optional) 2,45% (98,00) Base salary 3 549,60 Cost of acquiring income 20,00% 709,92 Income 2 839,68 Tax 19,00% 539,54 Net income 2 300,14 Total cost for employer: 4 000,00! There are different componentsof social security contributon depending on the statute of worker the calculation above is for someone who is not employed anywhere else and works only on the basis of mandate agreeements, is not a student nor a pensioner. 9. SELF-EMPLOYMENT - INVOICE Income 4 000,00 + VAT 22,00% 880,00 Total 4 880, 00 Total cost for employer: 4 000,00 22

23 Annex 3 Table 1. Controls performed by the National Labour Inspectorate(2007) Total Construction sector Number of controls Total number of the employed Civil law agreements Self-employed Foreign workers Regular employees (regular employment contract) - women/ regular employees yongsters/ regular employees disabled/ regular employees Table 2. Accidents at work examined by the National Labour Inspectorate (2007) Accidents Accidents in the construction sector Number of accidents deathly serious collective Table 3. Number of the injured in the accidents examined by the National labour Inspectorate (2007) by employment status Number of injured Deathly Serious Collective Total Injured Total Construction sector Employed Total Construction sector Self-employed Total Construction sector Civil law Total agreements Construction sector Remaining ones Total Construction sector