“We encourage it, but we do not force anyone. Nevertheless, if someone refuses to go along, this has consequences in the form of a lower performance rating.” This single sentence from an internal email can cost a company five years’ worth of backdated social insurance contributions—because under Article 22 of the Labour Code, it amounts to a managerial instruction backed by a sanction, even if it is not called one.
If you manage an IT systems maintenance team and are considering adding on-call duties to mandate contracts, stop. Before drafting a clause, you need to answer a question most companies overlook: once you add the requirement to remain available by phone, is it still a mandate contract—or has it become an employment relationship?
Since 8 July 2026, the National Labour Inspectorate has had new tools: a two-stage administrative procedure, higher fines, and a growing number of complaints. During the first month after the reform took effect, 690 complaints were filed concerning the improper choice of a civil-law contractual arrangement (Source: National Labour Inspectorate). If poorly designed, on-call duty under a mandate contract gives an inspector three pieces of evidence of an employment relationship at once.
In this article, I walk you through the decision gate you should pass before drafting any clause. I will show you provisions that work against the company in almost every draft and explain why using a single engagement model for an entire maintenance team is a mistake whose impact grows with every month.
Concepts you need to understand before you begin
Before we move on to the risk analysis, let us clarify the terminology. Without it, legal concepts that sound similar but operate in completely different ways can easily be confused.
| Concept | What it means | Where it applies |
|---|---|---|
| Employee on-call duty (Article 151⁵ of the Labour Code) | Remaining ready to perform work outside normal working hours—at the workplace or at home. By law, home on-call duty during which no work is actually performed is unpaid. | Employment relationships only—it does not apply to contractors under mandate contracts. |
| Availability under a mandate contract | A paid service consisting of remaining available. It has no separate statutory basis—it operates under the principle of freedom of contract set out in Article 353¹ of the Civil Code. | Mandate contracts and contracts for the provision of services (Article 750 of the Civil Code). |
| Article 22 § 1¹ of the Labour Code | If an engagement has the characteristics of an employment relationship (subordination, designated working time, personal performance), it constitutes an employment relationship regardless of the name of the contract. | Every form of engagement—mandate contract, B2B, or contract for the provision of services. |
| Minimum hourly rate (Article 8a of the Minimum Wage Act) | From 1 January 2026, it is PLN 31.40 gross for every hour spent performing a mandate or providing services. | Mandate contracts and contracts for the provision of services covered by Articles 734 and 750 of the Civil Code. |
| Article 8(2a) of the Social Insurance System Act | A contractor performing a mandate for the benefit of their own employer is treated as an employee for social insurance contribution purposes. | Corporate groups in which the same person has two different bases of engagement. |
Note one important point: the Labour Code recognises on-call duty only as an employment-law arrangement. It does not apply to contractors under mandate contracts. This does not mean that you cannot agree on paid availability under a civil-law contract—you can, because the principle of freedom of contract applies. But how you structure it determines whether the contract will withstand an inspection.
Why on-call duty under a mandate contract introduces three features of employment at once
Adding telephone availability to a mandate contract is not a neutral expansion of the scope of services. It is a change that simultaneously introduces three elements characteristic of an employment relationship under Article 22 § 1 of the Labour Code into a civil-law relationship:
- Designated service hours—the contractor must be available during a specified time window (e.g. 17:00–9:00 on working days and 24 hours on non-working days).
- Subordination to a schedule—someone decides who is on call and when. If that person is the principal, this amounts to managerial control.
- Obligation to remain available—the contractor cannot freely use their time because they must respond to tickets.
The Supreme Court has repeatedly confirmed that classification depends on the actual substance and manner of performance of the contract, not its name—including in judgments I PK 182/07 and I PK 189/18 (Source: Supreme Court, I PK 182/07, Source: Supreme Court, I PK 189/18). Article 22 § 1¹ of the Labour Code is decisive: if the terms correspond to an employment relationship, then it is an employment relationship—regardless of what is written in the contract heading.
Decision gate—answer these questions before drafting the clause
Before you start drafting an on-call provision, work through six questions. If the answer to most of them is “yes, on the principal’s side”—do not draft the clause. Change the basis of engagement.
| No. | Diagnostic question | Answer indicating employment | Answer indicating a mandate contract |
|---|---|---|---|
| 1 | Who prepares the on-call schedule? | The principal imposes the schedule | The team determines the schedule itself and submits it for approval |
| 2 | Are there no adverse consequences for refusing on-call duty? | Refusal results in a lower performance rating or non-renewal of the engagement | Refusal has no consequences—and you can identify someone who refused without suffering any repercussions |
| 3 | Can the contractor swap shifts? | Swaps are prohibited or require a supervisor’s approval | The contractor arranges a substitute independently from among other competent individuals |
| 4 | Who gives instructions during on-call duty? | A supervisor specifies the tasks and how they must be performed | The contractor independently decides how to handle the ticket |
| 5 | How is payment calculated? | Working-time records, “annual leave”, “sick leave” | A ticket log in the ticketing system and an invoice for hours worked |
| 6 | Does the contract contain an open-ended clause? | “And other activities assigned by the Principal” | A closed list of activities, with any expansion made by an amendment |
If the principal imposes the schedule, on-call duty is effectively mandatory, and shift swaps are prohibited, a clause will not help. Rewriting the contract will not change how the work is performed. And it is the manner in which the work is performed that the inspector will assess.
Four provisions that serve as evidence against your company
Most draft on-call clauses submitted for legal review contain the same errors. Each of them, on its own, strengthens the case for reclassification. Together, they form a coherent picture of an employment relationship.
Provision 1: an open-ended clause
What it looks like: “Performance of assigned programming and technology work and other activities assigned by the Principal.”
Why it is harmful: This provision was intended to preserve flexibility. In the eyes of an inspector, however, it is evidence of work of a specified type performed under managerial control—because the principal decides what else falls within the scope of duties.
What to use instead: A closed list of activities (specified systems, ticket classes, required response times), with an expansion procedure based on an amendment or a separate individual assignment.
Provision 2: a unilaterally imposed schedule
What it looks like: An on-call schedule set by the team coordinator or project manager.
Why it is harmful: Unilateral determination of service hours is one of the three elements of subordination under Article 22 § 1 of the Labour Code.
What to use instead: The schedule is prepared by the team and submitted to the principal for formal approval. Document this process—by email, in a messaging channel, or in a version-controlled file. This is one of the few elements that genuinely support the civil-law nature of the contract.
Provision 3: sham voluntariness
What it looks like: “We encourage it, but we do not force anyone”—while refusal results in a lower periodic performance rating or non-renewal of the engagement.
Why it is harmful: Voluntariness must be testable. If you cannot identify a person who refused and suffered no consequences, the voluntariness clause is meaningless. It is a managerial instruction backed by a sanction, even if it is not called one.
What to use instead: Separate refusal of on-call duty from personnel consequences. Replace personnel sanctions with a contractual penalty under Article 483 of the Civil Code for failing to respond to a ticket that has already been accepted—this is an instrument appropriate to a civil-law contract and provides genuine protection for the SLA.
Provision 4: rates copied from the Labour Code
What it looks like: “A 150% premium for night-time hours and public holidays”, referred to as an “allowance”.
Why it is harmful: The contract itself provides evidence that the parties were thinking in employment-law terms. Overtime terminology does not apply to a mandate contract—and using it suggests that the relationship is one of employment.
What to use instead: Introduce an “increased rate” justified by the inconvenience of providing services at night or on non-working days—without referring to overtime rules or copying multipliers from the Labour Code.
Contact us—we will review your on-call clause and identify the provisions that need to be amended.
Pricing availability—the most expensive detail companies overlook
A common mistake is pricing availability at a small percentage of the minimum hourly rate, based on the intuition that “nothing is actually being done”. Meanwhile, the minimum hourly rate in 2026 is PLN 31.40 gross (Source: Regulation of the Council of Ministers, Journal of Laws 2025, item 1242).
Is an hour of availability alone subject to the minimum rate?
Article 8a(1) of the Minimum Wage Act requires remuneration for each hour spent performing a mandate or providing services to be no lower than the minimum hourly rate (Source: Minimum Wage Act, Journal of Laws 2024, item 1773). The Act does not expressly define whether passively waiting for instructions counts as such an hour.
There is no Supreme Court judgment or National Labour Inspectorate position that conclusively resolves this issue. However, the argument for applying Article 8a to availability is stronger where the contractor must remain available at specified times and at the principal’s ongoing disposal. And that is precisely what on-call duty looks like.
The safer interpretation is to treat an hour of availability as an hour of service provision and price it at no less than PLN 31.40 gross. “Making up” for underpriced availability with a higher reactive-work rate does not work—the minimum is calculated separately for each hour, not as an average under the contract.
Three pricing rules you need to include in the contract
| Rule | What to include in the contract | Why |
|---|---|---|
| Separate grounds for payment | Remuneration for availability is payable regardless of whether a ticket is received. A separate rate for availability and a separate rate for reactive work. | If availability is unpaid when nothing happens, this supports the invalidity of the provision and reclassification. |
| Overlap rule | Whether an hour spent actually resolving an incident is paid twice (availability + work) or only at the higher applicable rate. A minimum billing block for one ticket (e.g. every commenced 30 minutes). | Without this rule, an incident at 2:00 a.m. lasting 40 minutes will result in a billing dispute. |
| Record of hours | Confirmation of the number of hours based on the ticket log in the ticketing system (Jira, ServiceNow). The mechanism must be expressly described in the contract. | Article 8b of the Minimum Wage Act requires the contract to specify how hours are confirmed. A ticket log is created anyway—it only needs to be described. |
The fine for paying less than the minimum hourly rate ranges from PLN 1,000 to PLN 30,000 (Article 8e of the Minimum Wage Act) (Source: National Labour Inspectorate). And it may be imposed in addition to a fine for entering into a civil-law contract instead of an employment contract.
National Labour Inspectorate reform from 8 July 2026—what changes in inspections
Since 8 July 2026, a new inspection procedure has applied. An inspector no longer needs to bring a court action as the first step. Instead, the inspector proceeds in two stages:
- Issues a written order to remedy the infringement—that is, an order to enter into an employment contract.
- If the order is not complied with—submits an application to the district labour inspector for an administrative decision confirming the existence of an employment relationship, or brings an action before the labour court.
The decision may be appealed to the labour court (Source: gov.pl).
New sanctions and the scale of inspections
| Parameter | Before 8 July 2026 | From 8 July 2026 |
|---|---|---|
| Fine for entering into a civil-law contract instead of an employment contract (Article 281 § 1(1) of the Labour Code) | PLN 1,000–30,000 | PLN 2,000–60,000 |
| Procedure for challenging a contract | Court action before the labour court only | Order + administrative decision or court action |
| Individual interpretations of Article 22 § 1 of the Labour Code | None | The National Labour Inspectorate may issue interpretations (9 had been issued by 25 August 2026) |
| Complaints in the first month after the reform | 619 (corresponding period in 2025) | 690 |
In 2025, the National Labour Inspectorate inspected 48,677 civil-law contracts and challenged 2,119 of them (approx. 4.35%). Inspectors brought 18 actions before the courts to establish the existence of employment relationships for 35 people (Source: National Labour Inspectorate—Chief Labour Inspector’s 2025 Report). Between 8 July and 6 August 2026, 201 cases had already been recorded in which contracts were voluntarily changed before the inspection was completed (Source: National Labour Inspectorate).
The reform also covers B2B relationships if they correspond to an employment relationship. The National Labour Inspectorate emphasises that reclassifying contracts will not be a “routine measure” (Source: National Labour Inspectorate)—but it now has the tools to do so.
Retroactive exposure—how much the risk costs and how to calculate it
Contract reclassification has retroactive, not prospective, effect. Exposure increases with every month the model remains in place. These are the time horizons you need to include in your calculation:
| Risk category | Limitation period | Legal basis | What it covers |
|---|---|---|---|
| Overdue ZUS contributions | 5 years from the due date | Article 24(4) of the Social Insurance System Act | Pension, disability, health, accident, Labour Fund and Guaranteed Employee Benefits Fund contributions—with interest calculated under the Tax Ordinance |
| Employee claims | 3 years from the date on which the claim became due | Article 291 § 1 of the Labour Code | Overtime pay, night-work allowances, payment in lieu of annual leave, severance payments |
| Offences against employee rights | 1 year from the date of the offence; if proceedings are initiated—2 years | Article 45 of the Code of Petty Offences | Fine under Article 281 of the Labour Code |
(Source: Social Insurance System Act, Journal of Laws 2024, item 1661, Source: Labour Code, Journal of Laws 2025, item 277)
Students under the age of 26—a hidden social insurance time bomb
The social insurance exemption for students under 26 applies only where the basis of engagement is a mandate contract (Article 6(4) of the Social Insurance System Act). Employees are subject to compulsory insurance regardless of their student status (Source: ZUS—guide to civil-law contracts).
If a student’s mandate contract is reclassified as an employment contract:
- The contribution exemption no longer applies.
- Pension and disability contributions must be calculated for the entire engagement period—with interest from each payment deadline.
- The contribution payer is liable to ZUS for the full amount of the contributions.
- ZUS registrations and declarations must be corrected for the entire period concerned.
The scale is the product of: number of people × monthly contract value × duration of the model. For a team of 10 students engaged under mandate contracts, each paid PLN 5,000 per month over a two-year period, the social insurance exposure alone—excluding interest—may amount to hundreds of thousands of zlotys.
Additional risk within a corporate group
Article 8(2a) of the Social Insurance System Act requires a contractor performing a mandate for the benefit of their own employer to be treated as an employee. The risk increases where the same person has an employment contract with one group company and a mandate contract with another, while the actual on-call instructions come from an entity that is not a party to the contract.
A mismatch between the entity that is a party to the contract and the entity that actually receives the services is a separate risk factor—both under employment law and transfer-pricing rules (documentation threshold: PLN 2,000,000 in transaction value in a tax year, Article 11k(2)(3) of the Corporate Income Tax Act) (Source: Corporate Income Tax Act, Journal of Laws 2026, item 554).
One model for the entire maintenance team—why it does not work
IT systems maintenance teams are mixed by nature: students engaged under mandate contracts, B2B specialists, and sometimes employees. Attempting to force everyone into one contract template with an on-call clause is a mistake that increases exposure.
Each of these groups has a different risk profile, a different legal basis, and a different optimal model:
| Individual’s profile | Recommended model | Instrument securing on-call coverage | Risk if the mandate contract is retained |
|---|---|---|---|
| A person who is genuinely subordinate to the schedule, with no real ability to refuse or arrange a substitute | Employment contract with on-call duty under Article 151⁵ of the Labour Code | Home on-call duty during which no work is actually performed is unpaid by law; workplace on-call duty is compensated with time off or remuneration | Retroactive reclassification + full social insurance exposure |
| A B2B contractor who runs their own business, has multiple clients, and independently manages their time | Contract for the provision of services with an SLA and a contractual penalty under Article 483 of the Civil Code | Contractual penalty for failing to respond to an accepted ticket; right to arrange a substitute | Lower, if the independence is genuine and documented |
| A student under a mandate contract with genuine freedom to refuse and swap shifts | Mandate contract—but only if voluntariness and substitution are testable | Right of substitution under Article 738 of the Civil Code; no link between refusal and performance ratings | Loss of the social insurance exemption upon reclassification |
Note this counterintuitive fact: an employment contract with home on-call duty can be cheaper than a mandate contract with an availability requirement. For home on-call duty, an employee is entitled neither to time off nor to separate remuneration for availability alone—remuneration is payable only for work actually performed (Source: Labour Code—ISAP). Under a mandate contract, by contrast, availability must be priced as a service—at no less than the minimum hourly rate if you adopt the safer interpretation of Article 8a.
Before deciding whether to “fix the clause or change the model”, calculate both parameters: the ongoing cost of each option and the retroactive exposure in the event of reclassification.
Regulatory context—what else is coming
Directive (EU) 2024/2831 of the European Parliament and of the Council of 23 October 2024 introduces a rebuttable presumption of an employment relationship for people performing work through digital labour platforms (Source: EUR-Lex). In August 2026, the Ministry of Family and Social Policy announced a draft Polish act implementing the Directive and its intention to submit it for public consultation (Source: gov.pl).
The Directive concerns platform work, not every B2B contract in IT. However, its implementation may increase the significance of algorithmic control and digital monitoring as evidence in disputes concerning the classification of an engagement. If your ticketing system automatically assigns tickets, measures response times, and generates performance reports, this is material that an inspector may use.
Irrespective of the Directive, Article 22 § 1, § 1¹ and § 1² of the Labour Code already require the actual terms of engagement to be assessed regardless of the name of the contract. The regulatory trend is clear: inspection powers are expanding, while tolerance for sham civil-law contracts is declining.
Checklist—12 steps before introducing on-call duty under mandate contracts
Before introducing telephone availability in your maintenance team, work through this list. The order matters—each step builds on the previous one.
| No. | Step | Objective |
|---|---|---|
| 1 | Pass the decision gate (the 6 questions in the table above) | Determine whether an on-call clause is safe under a mandate contract at all |
| 2 | Map the social insurance risk: students, individuals with a concurrent employment contract within the group, and discrepancies between the contracting party and the actual recipient of the services | Calculate retroactive exposure |
| 3 | Remove the open-ended clause “and other activities assigned by the Principal” | Create a closed list of activities |
| 4 | Define the subject of on-call duty precisely: systems, ticket classes, response times, and scope (incidents vs. maintenance windows) | Limit the scope to measurable parameters |
| 5 | Transfer responsibility for preparing the schedule to the team—and document the process | Eliminate the unilateral imposition of the schedule |
| 6 | Separate refusal of on-call duty from personnel consequences | Ensure testable voluntariness |
| 7 | Replace personnel sanctions with a contractual penalty under Article 483 of the Civil Code for failing to respond to an accepted ticket | Introduce a civil-law instrument instead of an employment-law one |
| 8 | Set the availability rate at no less than PLN 31.40 gross/hour | Reduce the risk of a fine under Article 8e |
| 9 | Specify the separate grounds for payment (availability vs. reactive work) and the overlap rule | Eliminate billing disputes |
| 10 | Describe the ticketing-system-based record of hours (Article 8b) | Meet the statutory requirement |
| 11 | Include the right of substitution under Article 738 of the Civil Code | Reinforce the civil-law nature of the contract |
| 12 | Rename the rates: “increased rate” instead of “150% allowance” | Remove employment-law terminology |
How we can help you
Rewriting the clause is not enough if the team’s working practices do not change along with it. A National Labour Inspectorate inspector analyses not the wording of the contract, but what day-to-day cooperation actually looks like—who gives instructions to whom, who prepares the schedule, and what happens when someone refuses on-call duty.
We support IT and SaaS companies through three service options tailored to the scale of the risk:
- Review of the on-call clause and revision of the contract template—verification of the provisions against the 12-step checklist, identification of elements requiring amendment, and delivery of a revised template.
- Audit of on-call practices + revised templates—analysis of the team’s actual working practices (schedules, communications, consequences of refusal), a risk report including a valuation of retroactive exposure, and preparation of separate templates for mandate contracts, employment contracts, and B2B arrangements, together with a scheduling procedure.
- Complete architecture for the maintenance team’s engagement model—separation of engagement paths, calculation of cost alternatives (mandate contract vs. employment contract with on-call duty under Article 151⁵ of the Labour Code vs. B2B with an SLA), evidentiary documentation, and training for team leaders and HR staff on the language used when communicating about on-call duty.
We combine employment law with IT expertise—we understand what on-call means, how a ticketing system works, and why an SRE team is not the same as a production department.
Contact us—we will review your on-call model and identify what requires correction and what requires a change in the basis of engagement.
On-call duty under an IT mandate contract—key takeaways from this article
On-call duty under an IT mandate contract is not prohibited. But how you structure it determines whether the contract will withstand a National Labour Inspectorate inspection—or provide the inspector with evidence of a retroactive employment relationship.
There are three things you need to establish before drafting any clause: who prepares the schedule, whether refusal is genuinely free of adverse consequences, and whether substitution is a real option. If the answers indicate subordination, do not revise the clause—change the model.
Since 8 July 2026, the National Labour Inspectorate has had new tools, higher fines of up to PLN 60,000, and a growing number of complaints. Exposure increases with every month—five years of backdated ZUS contributions, three years of employee claims, plus a fine for paying less than the minimum hourly rate.
Using one engagement model for the entire maintenance team is a mistake. Some individuals should have employment contracts with on-call duty under Article 151⁵ of the Labour Code, some should have contracts for the provision of services with an SLA and contractual penalties, and mandate contracts should be used only where voluntariness and substitution are testable.
If you want to check whether your on-call model will withstand an inspection—contact us. We will help you calculate your exposure and separate the engagement paths before an inspector does it for you.
Frequently asked questions
Can I introduce on-call duty under a mandate contract at all, or do I have to switch to employment contracts immediately?
You can. There is no provision prohibiting the parties from agreeing on paid availability under a civil-law contract—the principle of freedom of contract under Article 353¹ of the Civil Code applies. The condition is that the way on-call duty is organised must not correspond to the characteristics of an employment relationship under Article 22 § 1 of the Labour Code. If the principal imposes the schedule, refusal has adverse consequences, and swaps are prohibited, a clause will not help and you should consider changing the basis of engagement.
How much do I have to pay for an hour of simply “waiting by the phone”?
The safer interpretation is no less than the minimum hourly rate, i.e. PLN 31.40 gross in 2026. Article 8a of the Minimum Wage Act does not expressly define whether passive waiting is an “hour spent performing a mandate”, but the argument for applying this rate to availability is stronger where the contractor must be available during a specified time window. The minimum is calculated separately for each hour—not as an average under the contract.
Will an employment contract with home on-call duty cost me more than the current mandate-contract model?
Not necessarily. For home on-call duty, an employee is entitled neither to time off nor to separate remuneration for availability alone—remuneration is payable only for work actually performed (Article 151⁵ § 3 of the Labour Code). Under a mandate contract, by contrast, availability must be priced as a service. Before making a decision, calculate both options: the ongoing cost and the retroactive exposure in the event of reclassification.
What penalties does a company face if the National Labour Inspectorate challenges mandate contracts that include on-call duty?
Since 8 July 2026, the fine for entering into a civil-law contract instead of an employment contract ranges from PLN 2,000 to PLN 60,000 (Article 281 § 1(1) of the Labour Code). A separate fine of PLN 1,000 to PLN 30,000 applies for paying less than the minimum hourly rate (Article 8e). In addition, there are overdue ZUS contributions for up to five years, together with interest, and employee claims (overtime, annual leave, severance payments) covering up to three years.
Is a ticket log in Jira or ServiceNow sufficient as a record of hours?
Yes—Article 8b of the Minimum Wage Act requires the contract to specify how the number of hours will be confirmed. A log in a ticketing system meets this requirement, provided that you expressly describe the mechanism in the contract. Importantly, the records must cover both availability hours (on-call blocks) and reactive-work hours (individual tickets).
What should be done about students engaged under mandate contracts who perform on-call duties?
The social insurance exemption for students under 26 (Article 6(4) of the Social Insurance System Act) is tied to the mandate contract and ceases to apply if the contract is reclassified as employment. Contributions must then be calculated for the entire engagement period, together with interest. If students on your team perform on-call duties, verify whether voluntariness and substitution are genuine. If not, change the basis of engagement before the exposure grows.
