The ‘uberisation’ of temporary work

Although the Act on Hiring of Temporary Employees has been on the books in Poland for over 20 years, and its provisions don’t seem to be keeping pace with the market trends, the temporary work model itself remains a useful tool for managing fluctuating demands for labour, particularly in the manufacturing or logistics sector. Temporary work allows employers to fill an intermittent need for workers without burdening the employer with numerous obligations. Could this process be further improved by hiring temporary workers via an app?

Temporary work allows employers to quickly find additional staff, for example when there is a growing demand for services, when production needs to be ramped up, or during the holiday season. Other important advantages include the lower costs, at least for recruitment.

But what if all of this could also be arranged with just a few clicks on an app?

In this article we consider whether managing the hiring of temporary workers via an app is possible and what it would entail. Or perhaps such a solution already exists, and its growing popularity will lead to a renaissance of temporary work?

Temp work via app
In the classic model of temporary work, the employee is hired by a temporary work agency (under an employment contract for a definite period or a civil-law contract), while the work is performed for and under the direction of the user employer to whom the worker is assigned (under a separate contract) by the agency.

In the model we’re looking at, we assume the use in this process of an application offered by the temp agency to both the temporary employee and the user employer.

In such an app, user-employers (with  their own profiles/accounts in the app) would submit ‘orders’ for temporary workers with specified qualifications and skills. If the order matched the availability of a temporary worker offered by the agency under the specified terms, then, upon fulfilment of all the obligations from the Act on Hiring of Temporary Employees of 9 July 2003 (including informational obligations), a contract would be concluded between the client (user employer) and the agency – and, correspondingly, also a contract between the agency and the temporary worker.

The app might function with an algorithm setting prices dynamically (with the statutory minimums taken into account) – in other words, the agency’s margin on the temp worker’s remuneration would depend on the fundamental market mechanism of the interplay between supply and demand, the time of year, and a range of other factors. For example, the cost of hiring a qualified house painter or aquatics instructor as a temporary employee would be noticeably higher during the construction season or the summer, and lower at other times.

The app would also facilitate:

• Settlement of fees between the parties
• Fulfilment of all documentation requirements
• Submission of other statements (such as notice of termination of the contract with the agency by the user employer, and/or termination of the contract with the employee by the agency)
• Submission of evaluations of the work of particular temps, which could have certain consequences for them (both positive and negative).

If the functions of the app were driven by AI, it would be necessary to ensure their compliance with the EU’s AI Act, in particular preceded by an analysis of whether such functions qualify as a ‘high-risk AI system’ under Annex III to the AI Act. But given the scope of that issue, it is a topic for a separate article.

Would such an app meet the statutory requirements for temporary work?
In our practical assessment, as long as the app described fits within the framework defined by the current regulations, the answer to this question would be yes. First and foremost, work offered through such an app would have to fall within at least one of the following categories:

• Seasonal, periodic or occasional work
• Work which cannot be completed on a timely basis by the regular employees of the user employer
• Work whose performance is one of the duties of an absent employee hired by the user employer

Thus, the app could, for example, help ensure sufficient staffing of an e-commerce warehouse during the peak pre-Christmas sales season. But it should not be used, for example, for regular staffing of accounting positions, or for the types of work referred to in Art. 8 of the Act on Hiring of Temporary Employees (such as work requiring security guards to be equipped with firearms). Unless the app were to offer not so much workers, but rather services performed under the supervision of the service provider – this, however, would fall outside the regime of the Act on Hiring of Temporary Employees, and de facto would constitute outsourcing, which is an entirely different issue.

The app should also meet the documentation and informational requirements of the Act on Hiring of Temporary Employees. The regulations include a set of informational and consultation duties (Art. 9, 9a, 11c and 18 sec. 2 of the Act on Hiring of Temporary Employees) between the temp agency and the user employer. This concerns such issues as:

• The type of work entrusted to the temporary employee
• The pay for the work done by the temporary employee
• Notification of resignation by the temporary employee before the end of the period for performance of temporary work agreed with the agency.

The Act on Hiring of Temporary Employees also requires the temporary worker’s employment contract to be made in writing. To meet this requirement using an app, the temp employee and the temp agency could use a qualified electronic signature. So far, such signatures have mainly been used by employers (due to the fees involved), while employees mainly provide traditional handwritten signatures. But considering the recently introduced functionality of the government app for citizens, mObywatel, allowing free electronic signing of up to five documents per month, it may no longer be so problematic to meet the requirement of written form for an employment contract using an app, and might help popularise this form of signing documents.

To ensure the full exchange of information, the app could facilitate temp workers’ submission to temp agencies of employment certificates and other documents confirming the periods of performance of temporary work for a specific user employer, making it much easier to carry out these obligations.

Modern temporary employment, or platform work?
The app described above could be regarded as a sort of hybrid solution somewhere between the traditional notion of temporary employment and platform work. Thus, when considering this solution, it should be envisaged whether this framing of the relationship of the temp agency with the temp worker and the user employer would cause the temp agency to be regarded as a digital labour platform within the meaning of the EU’s Platform Work Directive, which essentially would carry with it the presumption of an employment relationship, certain informational obligations, and a requirement for human oversight of algorithms monitoring employees and taking decisions affecting them. The reverse situation might also be considered – that is treating work performed via a platform as temporary work. After all, there are already on the market temp agencies launching platforms and apps supporting their operations, as well as platforms adopting the business models and operating rules of temp agencies. In practice, the distinction between digital labour platforms and temporary work agencies may gradually be erased.

Although Poland has not yet implemented this directive (not even a draft of the relevant provisions has been released yet), in other countries rulings have already been issued under similar facts. For example, the Dutch Supreme Court considered the case of a person performing housecleaning services via the Helpling platform. The app facilitated the arrangements for the working schedule, setting the expected hourly rate, and acceptance of assignments. Helpling also matched the parties’ offers, developed general conditions, and arranged for payments via an external payment service provider. The court held that such work, despite being targeted to a private recipient, could be regarded as temporary work, and the Helpling platform itself could be regarded as a temporary work agency.

Summary
Temporary work continues to account for a significant portion of the HR services market in Poland. In the context of the ongoing legislative work on controversial powers of the State Labour Inspectorate, we may even witness an increased interest in this model on the part of businesses who currently hire ‘employees’ on the basis of civil-law contracts. Apps of this sort would also fall within the trend of increasingly widespread digitalisation of the HR sector.

But when deciding on use of an app offered by a temporary work agency (or designing such solutions), a top priority should be to ensure that they comply with the regulations, including the requirements of the Act on Hiring of Temporary Employees.

In light of the increasingly fluid boundary between platform work and temporary employment, it is also essential to consider the risk that such an app could be deemed to be a digital labour platform. Thus, the functions of such an app must be carefully designed, with special attention to the roles played by the intermediary and the service recipient in the entire process.

Most interesting, there are already solutions out there implementing the notions we discuss in this article, and no doubt they will soon be joined by even more – also in Poland.