Social insurance notification by a foreign undertaking of contracts for specific work
Whether a foreign undertaking should notify the Social Insurance Institution of contracts for specific work it has concluded is determined primarily by whether the undertaking has the status of a remitter of contributions within the meaning of Polish law.
The obligation to report a contract for specific work (umowa o dzieło) to the Social Insurance Institution (ZUS) applies to an entity that has commissioned work to be performed, which is either:
- A remitter of contributions, or
- A natural person.
A foreign undertaking, which does not have a registered office in Poland, is obliged to report the conclusion of a contract for specific work if it has the status of a remitter of social insurance contributions in Poland. The status of a remitter may arise under any legal basis. For example, a foreign company employing workers in Poland who are mandatorily subject to social insurance, and on this account has the status of a remitter of social insurance contributions in Poland, should report conclusion of a contract for specific work.
To determine whether a foreign undertaking has the status of a remitter of contributions, it is important to consider the country in which the undertaking is established.
Foreign companies with their headquarters in the European Union, the European Economic Area, or Switzerland may have the status of a remitter of social insurance contributions in Poland, especially if they directly employ workers in Poland. For example, a company with its registered office in Germany employing a worker in Poland is the remitter of social insurance contributions on this account. Therefore, a contract for specific work concluded by such a company with another person should be reported to ZUS.
However, undertakings based in the EU, the EEA or Switzerland can “transfer” the status of remitter of contributions to the people they employ. Such a situation will occur if they enter into an agreement with a person employed from Poland on taking over the duties of a remitter. Regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems provides for such a possibility. For example, the same company based in Germany which is a party to an employment contract with a natural person from Poland does not have the status of a remitter if it has concluded agreements with all its employees for them to assume the obligations of a remitter. In such a case, the status of remitter should be held by those natural persons. This means that a contract for specific work concluded by such a company is not subject to notification to ZUS.
The obligation to report contracts for specific work will also not apply to undertakings from third countries (i.e. those with their headquarters outside the EU, the EEA or Switzerland), regardless of whether they employ workers in Poland. Such undertakings do not have the status of remitters even if they employ workers. In such a case, the employees are subject only to voluntary social insurance, and in the case of registration for insurance, they act on their own as remitters of contributions. For example, a company with its registered office in the United States will not be obliged to report a contract for specific work to ZUS.
It should be noted that despite Brexit, the EU–UK Trade and Cooperation Agreement confirms the continuation of the existing rules for being subject to social insurance. Therefore, the idea is that the rules described above for undertakings from the EU, the EEA or Switzerland should also apply to UK undertakings.
Notwithstanding the foregoing, a contract for specific work need not be notified to ZUS when the contract:
- Is concluded with one’s own employee (the person performing the work is at the same time an employee of the undertaking for whom the work is to be performed)
- Is performed for one’s own employer but concluded with another entity (the contractor for the work is an employee of the company for which he or she is to perform the work, even if the contract for specific work was concluded with another entity), or
- Is concluded with persons conducting business activity for the provision of services by them, falling within the scope of their activity.
Joanna Prokurat, tax adviser, Tax practice, Wardyński & Partners
Agnieszka Godusławska, adwokat, Employment practice, Wardyński & Partners
