In response to challenges, such as rising labour costs, entrepreneurs are increasingly turning to alternative forms of cooperation with drivers, which, on the one hand, offer greater flexibility and potential savings, and on the other hand, require good knowledge of the regulations and effective avoidance of formal errors. However, many misunderstandings, simplifications, and sometimes myths have arisen around this type of contract, which have little to do with reality.
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In response to challenges, such as rising labour costs, entrepreneurs are increasingly turning to alternative forms of cooperation with drivers, which, on the one hand, offer greater flexibility and potential savings, and on the other hand, require good knowledge of the regulations and effective avoidance of formal errors. However, many misunderstandings, simplifications, and sometimes myths have arisen around this type of contract, which have little to do with reality.
In this article, we take a look at the most popular solutions – we analyze what is profitable and legal, and which scenarios are better to cross out from the action plan right away. If you want to make personnel decisions based on facts, not circulating opinions – read on!
This solution is becoming increasingly popular among carriers looking for greater flexibility in hiring and a real reduction in operating costs. However, it should be remembered that a driver under a contract of mandate cannot perform his duties in circumstances that meet the conditions of an employment relationship in practice – otherwise there is a risk that this form of cooperation will be questioned by the inspection authorities.
The remuneration paid to the driver under the contract of mandate may be included in tax-deductible costs, which automatically reduces the tax base in the company. Such a model of cooperation also gives more freedom – the provisions of the Labour Code do not apply here, so there is no need to pay benefits such as holiday leave or sick pay. What is more, after meeting certain conditions, it is also possible to avoid the need to pay full social security contributions, which can give significant savings – so important in the face of dynamically growing costs of running a business.
Self-employment is a model in which a natural person runs a business on their own account, providing services to contractors on the basis of civil law contracts (including a contract of mandate). An employment relationship does not arise here, and the responsibility for the execution of the order, settlements and proper organization of working time rests entirely with the self-employed. For transport companies, this type of cooperation is a good solution, e.g. in the event of illness of a full-time driver, as well as during periodic staff shortages or increased work intensity in the peak season. This is also facilitated by greater flexibility, related to the possibility of faster termination of the contract – without the notice period required in employment contracts.
Compared to employment contracts, mandate also involves fewer administrative duties, which relieves the HR and accounting departments. The benefits for companies also include a number of financial issues. In certain cases, e.g. when the contractor is already insured for another reason, the company is not obliged to pay full social security contributions. Paid holidays and sickness benefit also do not apply – unless the contractor pays the contributions himself.
This model of cooperation can be beneficial for both parties, as long as it is used consciously and in accordance with the applicable law. Otherwise, it can bring more problems than savings – what do you need to pay special attention to? You will find the answer later in the article.
The answer to this question, as in the case of all other forms of employment, is not obvious. It all depends on individual priorities and predispositions. From the driver's point of view, self-employment is primarily about greater autonomy – the ability to independently decide on the most important issues, such as the scope of cooperation, rates or the number of orders accepted. An important advantage is also the lack of restrictions on the number of contractors, which really increases professional flexibility and allows for better adjustment of the schedule to individual preferences. From a financial perspective, this is often a real chance for higher income, especially with a well-run settlement model and the possibility of deducting business costs. At the same time, for companies cooperating with drivers on a B2B basis, this means lower employment costs – primarily in terms of the aforementioned social security contributions and employee benefits.
For many drivers, the argument for switching to self-employment is also the potential increase in creditworthiness, which can be helpful when buying a vehicle or investing in equipment. However, it should be remembered that greater independence also means greater responsibility – both formal and financial. A driver running a business does not benefit from the protection of the Labour Code: he is not entitled to holiday leave or sickness benefits – so he does not have the same stability as full-time employees.
Self-employment also means a number of formal obligations for the driver – obtaining transport orders, keeping accounts, paying due contributions (health, pension, disability, accident), and – which is particularly important in the transport industry – is responsible for any damage caused during transport, which often involves the need to purchase appropriate insurance policies.
Cooperation with drivers on the basis of civil law contracts does not release carriers from the obligation to comply with the regulations on the minimum hourly rate. This is the absolute minimum that must be provided to every contractor, regardless of the content of the contract or the form of settlement.
According to the announcement of the Prime Minister, from 1 January 2025, the minimum hourly rate is PLN 30.50 gross. The Principal is obliged to pay remuneration of at least the same amount for each hour of provision of services. Violation of this obligation, i.e. payment of remuneration below this value, results in high administrative sanctions – a fine of PLN 1,000 to PLN 30,000.
According to the Minimum Wage Act, the company must keep documents specifying the method of confirmation and the actual number of hours of performance of the order/provision of services. If the method of confirming the number of hours is not specified in the contract, the contractor must submit to the employer – in writing, electronically or in a document form – a statement of hours before the remuneration is paid. This can be done, for example, as part of an issued invoice or a separate attachment.
The carrier, as the party using the services, is obliged to keep documentation related to the records of hours for a period of at least three years from the date of maturity of the remuneration.
In the reality of more and more frequent and rigorous inspections by the National Labour Inspectorate in transport companies, the lack of well-thought-out procedures in this area may result in financial penalties, as well as serious legal and reputational consequences.
According to the current legal status, a driver performing international road transport – regardless of the legal basis – cannot be treated as a person on a business trip. This is clear from Article 26f of the Drivers' Working Time Act, which excludes the use of the "business trip" construction in relation to drivers performing transport tasks outside the country.
From the carrier's perspective, the civil law model of cooperation can generate measurable financial benefits, which were already mentioned earlier. It is worth emphasizing, however, that the lack of obligations characteristic of an employee relationship does not mean full freedom in shaping the terms of cooperation. The carrier is still responsible for the compliance of the work organization with the applicable regulations, including in particular compliance with the Act on drivers' working time, EU transport regulations and regulations on posting.
As a consequence, although the civil law form of employment eliminates some formal obligations, it also carries certain risks – in particular with regard to the interpretation of the nature of cooperation by control bodies, e.g. the National Labour Inspectorate or the Social Insurance Institution.
One of the potential benefits of concluding a contract of mandate with a driver is the possibility of reducing the carrier's contribution obligations. However, the exemption from the payment of social security contributions is conditional – it is granted only if the contractor has another title to insurance, from which the basis for the assessment of contributions is at least as much as the current minimum wage for work. In this case, only the health contribution remains mandatory.
Although this structure is often used in the transport industry as a tool for cost optimisation, it is important to keep in mind the limits set by the applicable regulations. Pursuant to Article 22 § 1² of the Labour Code and court rulings, it is unacceptable to circumvent the law by replacing an employment contract with a civil law contract in a situation where the manner of performing duties indicates the actual existence of an employment relationship.
For carriers, this means one thing: improper legal classification of cooperation with a driver carries a serious risk – both in the context of ZUS or PIP inspections, as well as civil liability. Cost optimisation cannot mean actions that in a fictitious, unauthorised way change the employment of a driver based on an employment contract into a civil law form.
Carriers should know exactly the line between a contract of mandate and an employment relationship – failure to make the right distinction may turn out to be risky for the employer. In the era of increasingly restrictive controls, especially in the TSL industry, incorrect classification of relations with drivers can result in serious consequences for the entire organization. What should you pay most attention to?
In the operational practice of transport companies, there are situations in which the contract of mandate contains elements characteristic of the employment relationship. If the content of the contract states that the driver:
Then, regardless of the legal title, according to the current regulations, we are de facto dealing with the establishment of an employment relationship.
In such a case, the principal – acting in practice as an employer – exposes himself to liability for an offence against the employee's rights referred to in the Labour Code. If the state authorities find that the terms of cooperation meet the conditions of an employment relationship, they are obliged to transform the civil law contract into an employment contract – with retroactive effect.
As a result, the carrier is obliged to settle all amounts due under statutory employee rights:
Applications? The legal form of the contract is irrelevant if its content and manner of performance correspond to the employment relationship. Attempts to circumvent the regulations by means of civil law constructions may be ineffective and generate real financial and legal risks.
As we have already written on our blog, in the situation of a regularly deepening shortage of professional drivers in Europe – the scale of which is currently estimated at over 230,000 vacancies, and in a few years – even at 745,000 – more and more transport companies are turning their attention to employing foreigners.
It is an obvious fact that regardless of the driver's nationality, the entrepreneur is obliged to strictly comply with the principle of equal treatment in employment, both in terms of working conditions and remuneration. Employing foreigners in the TSL industry is one of the answers to the problem of staff shortages, but it requires a high level of compliance with migration regulations and labor law regulations. It is quite a complex process, and its details largely depend on the nationality of the potential driver. In many cases, the standard procedure includes, but is not limited to:
From the perspective of a Polish carrier, the control and regulation of the driver's documentation is a necessary action to comply with national and EU regulations, and thus to avoid the risk of administrative sanctions, financial penalties or vehicle being stopped during an inspection.
Employing a foreigner as a professional driver is a multi-stage process, the details of which depend, among other things, on the candidate's citizenship and the nature of the planned transport. In addition to legalizing your stay and work, it is also necessary to have documents confirming your license to practice the profession of a driver in the European Union. A foreigner should have current and valid documents confirming professional qualifications, such as a driving license, driver's card, and in the case of international transport – a driver's certificate. Importantly, a person staying in Polish for more than 185 days a year is obliged to exchange their driving license for a Polish document.
However, if you are from a country that is a party to the Vienna Convention on Road Traffic (e.g. Ukraine, Georgia, Azerbaijan) or from an EU or European Free Trade Association (EFTA) country, the document replacement process is a formality that does not require you to take the exam again. In other cases – when the country of origin is not a party to the convention – it is necessary to obtain a new Polish driving licence, which usually involves the obligation to pass a theoretical exam.
The document is exchanged at the Transportation Department competent for the foreigner's place of residence. It should be remembered that detailed rules often result from bilateral agreements concluded by Poland with individual third countries, so we recommend that you always obtain up-to-date information from the starosty or voivodeship office. We also encourage you to contact OCRK experts who will help you comply with the latest regulations.
Can running a business by a driver be equated with a typical employment relationship? This is an interpretative error that can have serious legal and tax consequences. Although self-employment is sometimes treated as an alternative to an employment contract, in fact it is a form of running a business, not an employment relationship – which means completely different obligations on the part of both parties to the contract, as well as separate rules of settlement, insurance and a different scope of liability. Another worrying phenomenon is the unjustified attribution of rights reserved only for full-time employees to self-employed drivers.
Although self-employment in transport is often perceived as a simplified form of cooperation, it does not exempt from administrative and documentation obligations, which in practice can be as demanding as in the case of classic forms of cooperation.
Pursuant to Article 26d of the Act of 16 April 2004 on the working time of drivers, an entrepreneur personally performing road transport on the basis of Regulation (EC) No. 561/2006 is obliged to keep records of working time on its own. This documentation should be based on data from record sheets or a driver card and kept for a period of at least two years.
In practice, it is recommended that working time records should be kept only by drivers who carry out transport on the basis of their own license. In other cases – especially when a self-employed driver does not have a licence – it is more reasonable for the client to keep records, which facilitates subsequent settlements and ensures consistency with the sectoral wage requirements.
It should be noted that the obligation to document working time is universal and applies to all forms of providing transport services. Self-employed drivers are subject to the regulations on settling remuneration for work abroad, as well as the obligation to report posting in the IMI system. Moreover, in accordance with Article 26c of the Act, drivers performing transport on the basis of civil law contracts must respect the standards of weekly and average weekly working time.
In the conditions of intense work in transport, flexible forms of employment are gaining in importance. Especially in periods of increased demand – such as temporary accumulations of orders or the holiday season, entrepreneurs are increasingly reaching for solutions that allow for quick replenishment of staff shortages. One of such solutions is employee leasing. Although it can be an effective tool, it also carries risks that you need to keep in mind.
Employee leasing can take the form of cooperation between two transport companies, but it is more common practice to use the services of a temporary employment agency. In such a situation, it is the agency that bears all obligations towards the driver The carrier who uses the services of the seconded employee settles accounts with the agency on the basis of the agreed remuneration for the service.
However, it is worth being aware that this solution also involves a certain risk – it is the carrier to whom the driver has been delegated that is responsible for any shortcomings and errors regarding the application of social regulations, the use of tachographs or road violations.
Let's take a look at the current legal status. Currently, if the contract of mandate is a fictitious replacement for the employment relationship, the employer may be fined from PLN 1,000 to 30,000. However, the consequences of such classification go much further – including the obligation to recognize all employee rights, as well as the need to settle tax and contribution arrears. Therefore, the employer may be obliged to pay benefits due under the employment contract (e.g. holidays, overtime, etc.), as well as to pay all required social security contributions.
In the public space, announcements of changes in the fight against sham self-employment are becoming more and more prominent. The Ministry of Family, Labour and Social Policy is planning to amend the Act on the National Labour Inspectorate, aiming to equip inspectors with new tools to effectively counteract the illegal replacement of employment contracts with civil law contracts. What exactly can you expect?
The planned reform assumes that in justified cases, it will be the PIP inspector who will be entitled to issue a decision ordering the replacement of a civil law contract with an employment contract. This type of solution is the implementation of one of the so-called milestones of the National Recovery Plan (NRP) – and, according to the ministry, it will significantly accelerate activities related to the verification and reduction of abuses in the field of the so-called bogus self-employment. The upcoming changes mean greater protection of the employee and a real risk for entrepreneurs who decide to circumvent labour law regulations.
