“The Limits of Expansion of Labour Law to Non-labour Forms of Employment—Comments de lege lata and de lege ferenda”

Abstract

In Poland, for a long time we have been dealing with the phenomenon of the spread of non-employment forms of employment in the market economy, which primarily concerns civil law contracts and self-employment, which are increasingly displacing the classic employment relationship. The author analyzes the process of expansion of protective labor law into employment relations indicated here, presents its genesis, causes, evolution, scope and boundaries. Without questioning the legitimacy of the protection guaranteed by the legislator to persons engaged in gainful employment outside the employment relationship, the author critically assesses the legal status in this area. De lege lata, we observe the lack of a systemic and comprehensive approach of the Polish legislator to this issue. Changes in this area are often made ad hoc, without a coherent and thought-out concept, also under the influence of political factors. The author of the article believes that the widest scope of protection should be guaranteed only to employees who work for the employer under conditions of subordination. Around such a defined model of employment relationship, it is possible to build other non-employment forms of employment to which labor protection law should apply to a limited extent. De lege ferenda, the author postulates the introduction of comprehensive, coherent and systemic solutions providing for the extension of protective labor law to non-employment forms of employment. It is not enough for the legislator to refer mechanically to the proper application of labor law. In addition, the Polish legislator de lege ferenda should recognize the criterion of economic dependency as a premise determining the scope of protection of persons engaged in gainful employment outside the employment relationship and determining the limits of the expansion of labor law into non-employment forms of employment.