Table of Contents:
- Why an 18-Month Limit? – Reasons for Implementation
- Can the 18-Month Limit be Circumvented?
- How to Calculate the Allowable Period of Temporary Work?
- Longer Break in Employment and the 18-Month Limit
- What Obligations Does a Temporary Employment Agency Have to Ensure Compliance with the Limit?
Temporary employment is a specific regulation and in Poland, it is governed by the Act of July 9, 2003, on the Employment of Temporary Workers. One of the key provisions of this act is the restriction on providing temporary work for a single user employer for a maximum of 18 months within a consecutive 36-month period. In our practice, we have encountered numerous employer issues related to how these limits should be calculated. In this article, we will try to clarify these matters.
Why an 18-Month Limit? – Reasons for Implementation The 18-month limit on temporary work for a single user employer within a consecutive 36-month period was introduced to counteract the abuse associated with employing workers on temporary contracts. The aim is to prevent situations where employees are employed on endless temporary contracts – which would be contrary to the purpose of this legal institution.
Can the 18-Month Limit be Circumvented? Over the period of this regulation’s application and the evolution of its content, attempts to circumvent it have naturally emerged. As of today, based on case law, we can state that this limit applies in the following situations:
- The same temporary worker is directed to a single user employer but through different temporary employment agencies;
- The same temporary worker is directed to a single user employer but under different types of contracts (employment contracts or civil contracts such as mandate contracts);
- The same temporary worker is directed to a single user employer each time to perform a different type of task.
This means that for the 18-month limit within a consecutive 36-month period, changes in the temporary employment agency, the type of contract underpinning the activities, or changes in positions and scope of duties will not matter. If the work (in the case of a mandate: activities) is performed for a single user employer, the aforementioned limit must be considered.
How to Calculate the Allowable Period of Temporary Work? Calculating the period of temporary work can seem complicated, especially in cases where there are breaks between employments. The starting point is the first day of employment of the temporary worker. It should be emphasized that what matters is the period of employment resulting from the concluded contract, not the actual number of days worked. Importantly, if a temporary worker has a longer break in employment, the calculation of the temporary work period still adheres to the same principles. Breaks in employment do not interrupt the 36-month period. This means that if a temporary worker finishes work and returns to the same temporary employment agency after a few months, the period of employment is still calculated within the same 36-month period. If there were multiple periods of employment, all days contributing to the temporary employment within the 36-month period must be summed.
Longer Break in Employment and the 18-Month Limit In certain cases, where the break in employment of a temporary worker is so long that it raises the question of whether the period of employment should be counted from the beginning – as the start of a new 36-month period, or whether the 36-month periods counted from the first employment should be continued. It seems appropriate to adopt the possibility of resetting these periods with a longer break. As a result, if a given 36-month period has already ended and no new employment was established during its duration or immediately after, the new 36-month period should be counted anew from the establishment of new employment, without continuing from the initial period.
What Obligations Does a Temporary Employment Agency Have to Ensure Compliance with the Limit? Employers must closely monitor employment periods to ensure compliance with regulations and avoid potential legal issues. Before assigning this type of work to an employee, the temporary employment agency should collect employment documentation (work certificates or other documents confirming periods of temporary work for a given user employer and relevant statements) from the 36-month period preceding the expected start date of temporary work for the given user employer. Appropriate records should also be maintained.
