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INTERNATIONAL RESEARCH PROJECT: IN SEARCH OF A LEGAL MODEL OF SELF-EMPLOYMENT IN POLAND. COMPARATIVE LEGAL ANALYSIS

Contact

Head of the Project
Tomasz Duraj, PhD, DSc, Professor of the University of Łódź

E: cnsz@wpia.uni.lodz.pl
E: tduraj@wpia.uni.lodz.pl
T: (42) 635 63 71

Coordinator for the Centre of Atypical Employment Relationships
Mateusz Barwaśny, MA
E: mbarwasny@wpia.uni.lodz.pl

 

 

 

LINKS TO RECORDINGS FROM THE FIRST AND SECOND DAY OF THE MEETING (8 - 9 DECEMBER 2021) OF THE IV NATIONAL SCIENTIFIC CONFERENCE FROM THE SERIES REGARDING  ATYPICAL EMPLOYMENT RELATIONS ENTITLED: “IN SEARCH OF A LEGAL MODEL OF THE PROTECTION OF THE SELF-EMPLOYED IN POLAND”.

Conference Day 1

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Conference Day 2

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Conference agenda:

THE PROJECT OBJECTIVE AND DESCRIPTION

On 16 November 2018, the National Science Centre announced the results of the OPUS 15 call for the best research project. The high third place in the legal panel was awarded to an international project prepared under the supervision of Tomasz Duraj, Professor of the University of Lodz, PhD, DSc. entitled "In search of a legal model of self-employment in Poland. Comparative legal analysis” (amount of funds granted: PLN 202 440).

International project number:

2018/29/B/HS5/02534 (Agreement No UMO-2018/29/B/HS5/02534)

According to the GUS [Statistics Poland] report on the first quarter of 2020, the number of self-employed people in Poland reached over 1.33 million. At the same time, OECD research conducted in 2019 showed that around 16% of working people in EU countries were self-employed. The highest share of self-employment is recorded in the service sector, where more than half of the working people are self-employed. The prevalence of this phenomenon is determined by the need to reduce the costs of the activity carried out by the entity commissioning the work (they are transferred to the self-employed) and the need to make the production process more flexible (the contracting authority can easily get rid of the self-employed). The development of self-employment is also an important mechanism for counteracting unemployment and professional activation of unemployed people and is a factor influencing the reduction of the so-called grey economy. The increase in interest in self-employment is also due to the entrepreneurial attitude and creativity in society.

The spread of self-employment, under which people who engage in gainful activity very often operate in conditions similar to those of employees, necessitated the need to cover these contractors with protection, which until recently was reserved exclusively for those having an employee status. De lege lata under Polish law, the self-employed already benefit from legal protection in the field of life and health, non-discrimination and equal treatment in employment; guaranteed minimum wage and protection of wages for work; motherhood and parenthood; and the right to associate in trade unions, which consequently gives them broad collective rights. The tendency to extend legal protection to self-employed persons is consistent with both the standards of international and EU law, under which the legislator, when introducing protective regulations, covers all working people, using the term "pracownik" in a broad sense ("workers" or "travailleurs"), as well as with the norms of the Constitution of the Republic of Poland, which broadly define protective guarantees.

Another pressing issue worth analysing is the phenomenon of fictitious or bogus self-employment, which is currently a big social problem. It is a situation when a natural person (usually a former employee) is forced to conduct business activity for a given entity (often a former employer) in conditions characteristic of the employment relationship. It is estimated that over half a million people run a sole proprietorship in Poland in conditions of fictitious self-employment in violation of applicable law.

The popularity of self-employment, the importance of the issue presented above, as well as the lack of comprehensive regulation that would comprehensively and systemically regulate the most important aspects of the work of people operating within the framework of self-employment, determine the legitimacy of conducting in-depth theoretical research on the legal aspects of self-employment. The main objective of the research project is a comprehensive legal analysis of the institution of self-employment, not only from the perspective of Polish legal regulation and jurisprudence, but also in the aspect of solutions applicable in international and EU law, as well as in selected European countries. The results of the conducted research will be used to develop an original legal model of self-employment in Poland, which will redefine the special legal status of self-employed people. The specific objectives of the research project include: theoretical analysis of the terminology used to define the institution of self-employment (clarification of the definition); determining the method of normalizing self-employment and the form of this regulation; justification of the need for the self-employed to benefit from the protection provided by the legislator for those employed on the basis of an employment relationship; determining the scope of this protection and the criteria differentiating it; development of a uniform and coherent concept of self-employment in the Polish social security system; theoretical analysis of the phenomenon of fictitious self-employment and assessment of the effectiveness of the mechanisms in force in the Polish legal system in the field of counteracting this phenomenon.

The main research hypothesis of the project is the observation that in the current legal status there is no regulation that would comprehensively and systemically regulate the most important aspects of the work of the self-employed and the special legal status of these people. In the approach of the Polish legislator to the issue of self-employment, there is no coherent concept, and the legal solutions regulating the situation of this category of employees are fragmentary and accidental. This causes a number of controversies and doubts, both in the doctrine of law and in court case law, making the status of this group of people unclear. Therefore, there is a justified need to develop a coherent legal model of self-employment in Poland. In the assumption of the authors of the project, it is reasonable to extend the protective regulations of labour law to those self-employed who perform work in conditions of economic dependence on the contracting entity, and the scope of this protection cannot be as broad as the one which is granted to people having an employee status. Consideration should also be given to improving the effectiveness of the mechanisms in force in the Polish legal system to make it easier for natural persons to become self-employed as part of their  independent business activity, as well as to increase the effectiveness of legal measures to counteract the phenomenon of fictitious self-employment.

The final result of the project will be the preparation of two multi-author monographs in English (open access) and in Polish presenting the final results of the research on the optimal legal model of self-employment in Poland in terms of comparative legal analysis.

THE PROJECT TEAM

 

Prof Tomasz Duraj, (Head of the Project), University of Łódź

Aneta Tyc PhD (Project inspection deputy), University of Łódź

Prof Catherine Barnard, University of Cambridge

Prof Rolf Wank, Ruhr University Bochum

Prof Tamás Gyulavári, Pázmány Péter Catholic University

Ingrida Mačernytė Panomariovienė PhD, Law Institute of Lithuania

Tatiana Wrocławska PhD, University of Łódź

Marcin Krajewski PhD, University of Łódź

Mateusz Barwaśny MA, University of Łódź

 

 

RESEARCH METHODS

Among the several research methods used in the project the following ones were the most popular: comparative law analysis, logical-linguistic, axiological, historical and statistical methods. The multifaceted approach of the project team, penetration and complementarity in research on the issues of self-employment of the above-mentioned methods, will allow for a thorough and multi-threaded analysis of the title research issue.

PUBLICATIONS

2019:

2020:

2021:

2022:

  • Tomasz Duraj, legal protection of the self-employed to the extent of safe and hygienic working conditions – assessment of polish regulation, Comparative European Research Conference, ISBN 978-1-7399378-1-2, London 2022
  • Aneta Tyc, Gig Economy: How to Overcome the Problem of Misclassifying Gig Workers as Self-Employed?
  • Marcin Krajewski, Economically dependent self-employment – are we ready to single out a new social security title?, FOLIA IURIDICA 2022
  • Mateusz Barwaśny, RIGHT TO REST OF THE SELF-EMPLOYED UNDER INTERNATIONAL AND EU LAW, FOLIA IURIDICA 2022

SCIENTIFIC CONFERENCES

Partial results of the research conducted as part of the project were presented at scientific conferences of both international and national scope:

2019:

2020:

Aneta Tyc PhD - Collective labour rights of self-employed persons: a comparative approach;

Marcin Krajewski PhD -Social insurance for the self-employed in Poland - selected issues;

Mateusz Barwaśny MA -Legal protection against discrimination and unequal treatment of self-employed in Poland.

The role of the debater was performed by the Head of the Project, Professor of the University of Łódź Tomasz Duraj PhD, DSc

  • Rzeszow, 5-6 October 2021, 2nd International Scientific Conference "The concept of employee and employer. Prof. Tomasz Duraj – lecture: Self-employed person as an employee under Constitution. Reflections on the concept of employee and employer
  • Lodz, 8-9 December 2021, 4th National Scientific Conference from the series: Atypical employment relations, on: In search of a legal model for the protection of self-employment in Poland.

    Lectures delivered by:

prof. T. Duraj - Self-employment and the legal model of protection in Poland

T. Wrocławska PhD, I. Mačernytė-Panomariovienė PhD - Legal status of self-employed persons in the light of the legal regulations of the Baltic States

M. Krajewski PhD - Optimization of the basis for calculating social security contributions of persons conducting non-agricultural business activity – selected issues

M. Barwaśny MA – The right to rest of the self-employed persons

2022

  • London, 25-27 April, 17th Comparative European Research Conference, International Scientific Conference, Prof. Tomasz Duraj – lecture: legal protection of the self-employed to the extent of safe and hygienic working conditions – assessment of polish regulation
  • Târgoviște, 12-13 May 2022, International Scientific Conference ”Flexible Work – Necessity and Opportunity” organized by the Association for the Study of the Professional Labour Relations, Universitatea Valahia din Târgoviște, Dr Aneta Tyc PhD - lecture: ”Gig Economy: How to Overcome the Problem of Misclassifying Gig Workers as Self-Employed?”

https://www.sciemcee.org/library/proceedings/cer/cer2022_proceedings01.pdf

ORGANIZATIONAL ACTIVITIES

  • As part of the grant promotion Aneta Tyc PhD and the Head of the Project, organized a separate panel at a prestigious international conference ICON•S Mundo, Conference of the International Society of Public Law: The Future of Public Law, which was held on 6–9 July 2021 . In the panel entitled "Legal aspects of self-employment", chaired by Robert Siciński MA (WPiA UŁ), lectures were delivered by: Aneta Tyc PhD (Deputy Head of the Centre) - Collective labour rights of self-employed persons: a comparative approach; Marcin Krajewski PhD (Secretary of the Centre) - Social insurance for the self-employed in Poland - selected issues; Mateusz Barwaśny MA ( Coordinator of the Centre) - Legal protection against discrimination and unequal treatment of self-employed in Poland. The role of the debater was performed by Prof. Tomasz Duraj.

Title: Legal aspects of self-employment

Panel Description

The aim of this panel is to present research conducted within an international project entitled “In Search of the Self-Employment Model in Poland. A Comparative Analysis” directed by Professor Tomasz Duraj and financed by the National Science Center in Poland (the project's registration number is: 2018/29/B/HS5/02534). The main goal of the research project is a comprehensive legal analysis of self-employment institutions, not only from the perspective of Polish legal regulations and case law, but also in terms of solutions in force in international and in the EU law, as well as in selected European countries. The results of the research will be used to develop an authorial legal model of self-employment in Poland, which will redefine the special legal status of self-employed persons.

Mateusz Barwaśny MA ( Coordinator of the Centre) - Legal protection against discrimination and unequal treatment of self-employed in Poland

The right to non-discrimination and equal treatment is currently the foundation for the functioning of a democratic state ruled by law. It should be noted that the provisions of international and EU law as well as the provisions of the Polish constitution guarantee them to every person, regardless of any features and basis for performing paid work. Despite this, until the end of 2010 in Poland, only persons employed under an employment relationship were protected in this respect. This changed with the adoption on December 3, 2010 of the Act on the Implementation of Certain European Union Laws on Equal Treatment, which introduced certain protective guarantees for people who work on other legal bases, including self-employed persons. The main purpose of the speech will be to analyze the current provisions on the protection of the self-employed against discrimination and unequal treatment and to formulate de lege ferenda conclusions.

Marcin Krajewski PhD (Secretary of the Centre) - Social insurance for the self-employed in Poland - selected issues

The subject of the paper is the issue of rules of being subject to a Polish social insurance by persons conducting non-agricultural business activities. Under the Act of 13 October 1998 on Social Insurance System these law regulations have undergone a significant transformation over the last twenty years. Until 2018, the law regulations were widely criticized, mainly due to the amounts of social insurance contributions, and also due to the low flexibility of social insurance regulations. The Act of 6 March 2018 on the Entrepreneurs Law introduced a number of solutions that made this non-agricultural activity a flexible title of Polish social insurance. The paper also contains an analysis of social insurance eligibility criteria and rules of the overlapping titles for insurance coverage. The paper concludes with possible implications of the current model for the self‑employed insurance in Poland.

Aneta Tyc PhD (Deputy Head of the Centre) - Collective labour rights of self-employed persons: a comparative approach

The aim of this paper is to analyse collective labour rights of self-employed persons under the Spanish Statute of Self-Employed Workers. It shows that among all self-employed workers, only economically dependent self-employed workers are granted the right to bargain collectively. However, in practice, collective bargaining is stymied mainly because it takes place only at the enterprise level, and because the number of economically dependent self-employed workers is minimal. Thus, collective labour rights under the Statute could be better protected. On the other hand, in Poland, the lack of any criteria that would enable a diversification of the scope of collective rights granted to self-employed persons is subject to criticism. It appears that in some areas the legislator shall differentiate the scope of protection. The criterion of economic dependence, which exists in Spanish law, could be successfully used for this purpose.

11th May 2022 -  a meeting of the members of the research team with Prof. JAIME CABEZA PEREIRO FROM THE UNIVERSITY OF VIGO who gave two lectures in English

  1. Boundaries between subordinate work and self-employment taking into account the case law of the CJEU
  2. Self-employment - collective rights and competition law. The meeting was led by Prof. Tomasz Duraj (WPiA UŁ) and Aneta Tyc PhD (WPiA UŁ).

https://www.facebook.com/events/255668160060237?ref=newsfeed

POPULARIZATION OF THE PROJECT

Partial results of the research were presented by Prof. Tomasz Duraj (Head of the Project) at the Postgraduate Studies:

  • Studies In the Field of Human Resources Management with Elements of Labour Law at the Faculty of Labour and Administration of the University of Lodz (2019, 2020, 2021)
  • Human Resources and Payroll at the Lazarski University in Warsaw (2019, 2020, 2021)
  • Human Resources and Payroll at the WSAP in Kielce (2019)
  • Human Resources and Payroll at WSZOP in Katowice (2019, 2020, 2021).

In addition, partial results of the research were presented by Prof. Tomasz Duraj (Head of the Project) as part of:

 

Vol. 95 (2021): Collective Labour Law or Collective Employment Law? Protection of the rights and collective interests of persons engaged in gainful employment outside the employment relationship. Second National Scientific Conference on ”Atypical Employment Relations”

This publication includes three articles in English prepared as part of a research project financed by the National Science Centre - In Search of the Self-Employment Model in Poland. A Comparative Analysis.

1. Prof Tomasz Duraj, Collective Rights of Persons Engaged in Gainful Employment Outside the Employment Relationship – en Outline of the Issue

2. Prof Tomasz Duraj, Powers of Trade Union Activists Engaged in Self-Employment – Assessment of Polish Legislation

3. Aneta Tyc PHD, Collective Labour Rights of Self-Employed Persons on the Example of Spain: is There any Lesson for Poland?

The publication is in open access on the website Link to the publication 

 

 

REPORT FROM THE CONFERENCE "IN SEARCH OF A LEGAL MODEL FOR THE PROTECTION OF SELF-EMPLOYED WORK IN POLAND"

 

LINKS TO RECORDINGS FROM THE FIRST AND SECOND DAY OF THE MEETING (8 - 9 DECEMBER 2021) OF THE IV NATIONAL SCIENTIFIC CONFERENCE FROM THE SERIES REGARDING  ATYPICAL EMPLOYMENT RELATIONS ENTITLED: “IN SEARCH OF A LEGAL MODEL OF THE PROTECTION OF THE SELF-EMPLOYED IN POLAND”.

Conference Day 1

Watch on YouTube

Conference Day 2

Watch on YouTube

Conference agenda:

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