Wymóg zatrudnienia na podstawie umowy o pracę w nowelizacji prawa zamówień publicznych z 29 sierpnia 2014 r.
The requirement to employ on the basis of an employment contract pursuant to the amendment of 29 August 2014 to the Law on Public Procurement

Summary/Abstract: The amendment of 24 August 2014 to the Law on Public Procurement made it possible, inter alia, for the contracting authority to require the hiring of personnel under an employment contract (labour law contract). Such a requirement, however, must be justified by the scope of the public contract and the nature of works or services. The new provisions were added to article 29(4) of the Law, which sets out so-called social clauses. Due to differences in the cost of social insurance contributions and other non-remuneration costs, as well as the statutory model of employment contracts, the preferred mode of hiring is often a civil law contract. Employment contracts are, in fact, sometimes replaced by civil law contracts. This article discusses the legal scope of requiring employment contracts. The idea to adopt an interpretation that reconciles the accumulated body of legislation and legal decisions concerning labour law with the dynamics of public procurement procedure has been put forth. The contracting authority should not be afforded unlimited freedom to set the requirement. Equally, the interpretation should limit the risk of undermining the effectiveness of the new provisions by economic operators. Therefore, it has been proposed that the contracting authority be allowed to require hiring under employment contacts where the basic criteria of the employment relationship, stipulated in article 22(1) of the Labour Code, are met. This should also be the case even when, on the open market, the conclusion of civil law contracts is permitted. In effect, the freedom to choose the legal form of employing personnel, which is typically enjoyed by the parties to the contract in question, would be replaced by the choice imposed by the contracting authority, namely the choice of a labour law contract.

• Details
• Contents