Andrzej Ponczek, Anna Kijewska, Mariola Drozd, Magdalena Woś-Ponczek
Apteka jako zleceniodawca - umowy cywilnoprawne zawierane przez właścicieli aptek
w świetle zakazu zastępowania umów o pracę umowami cywilnoprawnymi
Pharmacist as an employer: civil-law agreements drawn up by pharmacy-owners in the light of the prohibition of replacing employment contracts with civil-law agreements. The relation of employment is established by announcements of will of the sides, or other proceedings that law connects the establishment of such a relation with (specifically the ruling of court replacing announcement of will of sides). Establishing the relation of employment, regardless of its basis, requires unanimous declaration of will of both: the employer, i.e. the owner of the pharmacy, as well as the employee. This announcement is a premise for the initiation of every relation of employment, and it is commenced via both sides entering into the employment contract, or it accompanies unilateral acts establishing the relation of employment such as: appointment, election or nomination. The characteristics of relation of employment, mentioned in the labour law and developed and standardized via relevant judicial judicature permit the proper understanding of the prohibition of replacing the employment contracts with civil-law agreements, contained in article 22 § 12. The prohibition of replacing employment contracts with civil-law agreements does not forbid owners of pharmacies and other employers from entering into civil-law contracts; however, it indicates the necessity for constructing these contracts in such a way, so that they would not fulfil the essential conditions ascribed to the relation of employment. Civil-law contracts signed by the directors of pharmacies constitute an interesting and widespread alternative to the relations of employment. The attractiveness of employment rendered on the basis of these contracts lies primarily in the reduced or virtually non-existent charges (e.g. a specific-task contract) for national insurance, as well as in simplified procedures connected with ratification, execution and abrogation of these contracts. Civil-law agreements should be constructed in such a way so that they were not ostensible law-evasions, and consequently, did not form the basis for their questioning on grounds of national insurance system.