Among the regulations enacted in connection with the outbreak of the COVID-19 epidemic, aimed at adjusting the legal order to the economic situation, amendments were introduced to the Act of October, 13 1998 on the social insurance system and, as of January 1, 2021, the obligation to inform the Social Insurance Institution on concluded work contracts.
On January 1, 2021, the provision of Art. 22 of the Law of 31 March 2020 on amending the Law on Special Solutions for the Prevention, Counteraction and Control of COVID-19, Other Communicable Diseases and Crises Caused by Them and Certain Other Laws, which amended in particular the provision of Art. 36 of the Act on Social Insurance System.
Article 36(1)(a) 17 of the Act on Social Insurance System. Pursuant to the added provision of Art. 36(1)(a)17 of the Act on Social Insurance System, a payer of contributions or an individual commissioning work informs Social Insurance Institution about the conclusion of each work contract if such a contract is concluded with a person with whom he does not have an employment relationship or if under such a contract he does not perform work for an employer with whom he has an employment relationship. The information obligation must be fulfilled within 7 days of the conclusion of the contract, by submitting the information via the RUD form (Notification of work contract). The form should indicate, in particular, the data concerning the ordering party, the contractor and the information on the concluded work contract, including its subject.
According to the Social Insurance Institution, the information obligation does not apply to contracts for specific work:
Based on the information provided, the Social Insurance Institution will keep a record of concluded work contracts.
Who is affected by the duty of information. The duty of information has been imposed on payers of contributions and individuals who commission work. As regards natural persons who have concluded a contract for specific work, the obligation must be fulfilled irrespective of whether the natural person is registered with the Social Insurance Institution as a premium payer or not. It should be emphasized that entities or organizational units which are not payers of contributions are exempt from the information obligation.
Potential risks. It might seem that imposing an information duty on concluded work contracts should not result in adverse consequences. However, special attention should be paid to the justification of the governmental bill which introduced the obligation in question. This justification states that the purpose of the amendment is to enable the Social Insurance Institution to verify the existence of the obligation of social insurance for persons performing contracts called “work contracts”.
Fulfilment by the obliged entities of the obligation to provide information on concluded work contracts for will provide the Social Insurance Institution with information on these contracts, and thus will make it possible to control their legitimacy in specific cases. Pursuant to the provisions of the Social Insurance System Act, a work contract is, as a rule, not subject to retirement and disability insurance. However, it should be noted that in accordance with the provisions of the Act on Social Insurance System, the Social Insurance Institution is entitled, in particular, to ascertain and determine the obligation of social insurance and to control the performance of social insurance obligations by the payers of contributions and by the insured.
In the case of an inspection conducted by the Social Insurance Institution in order to verify an agreement called a work contract, there is a risk that the qualification of a specific agreement as a work contract will be questioned, and then it will be recognized, for example, as a commission contract. Consequently, the Social Insurance Institution may demand payment of premiums on the disputed contract.