ZUS has begun investigating whether specific task contracts and mandate contracts are concluded in accordance with their purpose. The audited companies are not chosen randomly but selected by a special algorithm. This is a major challenge for the entire creative industry. The subject provoked huge interest among member companies of SAR and KIP. During two business breakfasts approximately 60 persons participated in a discussion of the problem which is facing the entire advertising and marketing sector.
Specific task agreements are increasingly popular among entrepreneurs for a number of reasons. They are not covered by the social security system. Similarly, the revised act on minimum statutory wage, which introduced a minimum hourly rate for persons accepting an assignment or providing services, does not apply to them.
According to the revised provisions of the act on the freedom of economic activity since 1 January 2017 ZUS audits are initiated after a so called preliminary risk analysis. The audited companies are not selected on a random basis, but according to a ZUS algorithm payers who have been recorded for concluding a large number of specific task agreements are selected for the audit.
It is also to be emphasized that we are beginning to see a narrowing interpretation of the concept of specific task agreement by ZUS. Court judgments issued in this regard also give rise to controversy. The judgment of the Supreme Court of 10 January 2017 may serve as an example. The court ruled that a single performance of a concert by a violinist who was not a soloist is covered by a contract of mandate and not a specific task contract, even though the performance was of artistic nature.
What is a specific task contract?
A specific task contract is an agreement whereby the contractor undertakes to achieve in the future a individually specified, independent, objectively possible result of human work, of tangible or intangible nature. As such the contract cannot have a continuous character. The task of course does not need to have individual features to the same degree as a work, but must be a one-off effect, individualised already at the stage of concluding the agreement, and must lend itself to a final review after execution (eg. an advertisement design for a specific product).
Calling a specific contract a task does not guarantee that its status will be changed by ZUS or the court. The most important element is the content, the joint intention of the parties and the purpose, including the object of the contract.
ZUS and PIP [State Labour Inspection] (in case of an employment relationship) have the authority to review specific task contracts. A person with whom a given contract was concluded is also entitled to apply for a determination whether the given contract was actually a specific task contract. The ZUS audit, apart from reviewing documentation, may include a verification of how such an agreement was actually performed, which involves a cross-examination of the insured persons.
If ZUS finds that the given agreement was not a specific task contract it will issue a decision about retroactive payment of contributions, for the entire period for which they ought to have been paid, until limitation (5 years). A party may appeal against such a decision to the court within 30 days of issuance of the decision. As such the consequences may be quite serious.