Many, perhaps mistakenly, believe that occupational health and safety (OSH) obligations should only apply to employees. It turns out that they don’t! Employers or entrepreneurs who do not employ employees, but cooperate, for example, with persons employed on civil law basis, on a B2B (business-to-business) basis – i.e. cooperation between two entrepreneurs, or organizing classes on the premises of the workplace for students and pupils who are not its employees – must ensure health and safety for these entities.

Article 304 § 1 of the Labour Code indicates that the employer is obliged to provide safe and hygienic working conditions referred to in Article 207 § 2 of the Labour Code to natural persons performing work on a basis other than an employment relationship in a workplace or in a place designated by the employer, as well as to persons conducting business activity in the workplace or in a place designated by the employer on their own account.

It turns out that the catalogue of duties is open, but the most important ones include:

• organise work in a way that ensures safe and hygienic working conditions;
• ensure compliance with occupational health and safety regulations and rules in the workplace, issue instructions to remedy deficiencies in this respect and control the implementation of these instructions;
• respond to health and safety needs at work and adapt measures taken to improve the existing level of protection of workers’ health and life, taking into account changing working conditions;
• ensure the development of a coherent policy to prevent accidents at work and occupational diseases, taking into account technical issues, work organisation, working conditions, social relations and the impact of working environment factors;
• take into account the protection of the health of adolescents, pregnant or breastfeeding workers and workers with disabilities as part of their preventive measures;
• ensure the implementation of orders, statements, decisions and orders issued by the authorities supervising working conditions;
• ensure that the recommendations of the social labour inspector are implemented.

As emphasized in the judgment of the Court of Appeal in Szczecin – III Division of Labour and Social Insurance of 5 November 2020, III AUa 172/20 – statutory orders and prohibitions relating to occupational health and safety in the workplace unconditionally oblige the employer to provide employees and other natural persons performing work with safe and hygienic working conditions. It is the employer who is responsible for the violation of these orders and prohibitions (non-performance of the obligation), and entrusting tasks in this area to its employees, including the services appointed for this purpose, or outsourcing these tasks to external entities, does not release the employer from responsibility for the state of health and safety at work in the workplace run by the employer. This means that the employer is always responsible for the state of health and safety at work in the workplace, within the limits of its obligations.

In the light of Article 304 § 1 of the Labour Code in conjunction with Article 207 § 2 of the Labour Code, the employer’s obligation to ensure safe and hygienic working conditions, with the appropriate use of the achievements of science and technology, applies to both employees and persons performing work within the framework of non-employee civil law employment relationships (resulting from a contract for specific work, agency agreement, contract of mandate or other contract for the provision of services). In the performance of this obligation, the employer may require these persons to comply with health and safety regulations and rules by issuing instructions to remove any deficiencies in this respect and monitoring their implementation (Art. 207 § 2 point 2). The equivalent of these competences of the employer is the obligation provided for in Article 304[1] of the Labour Code to respect Article 211 of the Labour Code, which treats compliance with health and safety regulations and principles as a „basic” obligation of an employee (another employee) – this is what the Supreme Administrative Court stated in its judgment of 4 April 2017, I OSK 1558/15.

The employer is obliged to ensure safe and hygienic conditions for classes held on the premises of the workplace by students and pupils who are not its employees. Admittedly, educational institutions and universities are obliged to ensure safe and hygienic conditions for pupils and students to attend classes there, but an additional security measure is that pupils and students do not remain employed during classes (e.g. internships), but are nevertheless protected against hazards occurring in the work environment in a manner similar to that of employees. This obligation also applies to an entity that is not an employer (because it does not employ employees), but e.g. accepts students for internships.

If work is carried out in a place where access is available to persons who are not involved in the work process (e.g. in public areas, in the open air), the employer is obliged to take the measures necessary to ensure the protection of life and health of these persons. This provision seems to be the most dubious and the least used in practice, because, for example, it does not seem that fencing a construction site with e.g. tape is sufficient.

The law does not regulate this. Therefore, there is no legal obligation to provide training in the field of occupational health and safety if you have the status of self-employed, i.e. an entrepreneur conducting non-agricultural business activity but not employing workers to do so. However, as is clear from the previous part of the article, if there is cooperation with other entities as part of this activity, they should be provided with health and safety.

On 9 January 2024, the issue of ensuring safe working conditions for the self-employed was the subject of a meeting of the Labour Protection Council. As it was emphasized at the meeting: „For years, the National Labour Inspectorate has been consistently carrying out activities aimed at ensuring safe and hygienic working conditions for all employees, regardless of the form of employment. Our mission is to reduce both accidents at work and occupational diseases, which are largely caused by improper working conditions. The results of inspections carried out by labour inspectors indicate that the scope of protection of persons performing work on the basis of civil law contracts is insufficient. The requirements of occupational health and safety regulations that can be enforced by the National Labour Inspectorate in the case of this group of people are also problematic. (…) The National Labour Inspectorate – fulfilling its statutory duties – will continue its supervision and control activities in the most accident-prone sectors of the economy and areas of enterprise operation. The planned audit tasks are not directly targeted at companies cooperating with individuals on a basis other than an employment contract. Only after the inspection in a specific company is it possible to verify the legal basis on which the employees work there. This is due to the inability to identify in advance the companies that use non-employee forms of cooperation on a massive scale.”

Source: https://kadry.infor.pl/bhp/bezpieczenstwo-pracy/6442287,b2b-a-bhp.html

Supported by Norway through Norway Grants 2014-2021, in the frame of the Programme “Social Dialogue – Decent Work”.