ZUS interference with the agreed remuneration - when is it justified?
The essence of the contractual employment relationship is that the parties (employee and employer) jointly agree on its terms. One of the elements to be worked out in the contract is remuneration. Its amount depends on many factors, including on education, experience, scope of duties, etc. HaloPrawo.pl legal specialist explains whether the Social Insurance Institution, as a separate entity, may interfere with the agreed amount of remuneration.
The remuneration is the basis for the amount of contributions paid to ZUS, therefore the question arises whether the interference of ZUS with the agreed remuneration is permissible. This is an important issue, if only because the Social Insurance Institution is obliged to pay benefits to the employee in certain circumstances - e.g. in the case of the so-called "sickness”.
It has now become a well-established practice that if the circumstances of the case indicate that the remuneration for a specific employee was paid on the basis of a contract that is contrary to the law, principles of social coexistence or aimed at circumventing the law, ZUS has the right to interfere in the amount of the agreed remuneration, which the introduction is manifested in the initiation of an inspection at a given employer.
The control includes, among others, registration for insurance as well as the correctness and reliability of the calculation, deduction and payment of the premium.
The initiation of such control, although legally permissible, is not always justified. The legitimacy of the control may be called into question the independence of the parties to the contract in terms of shaping its provisions. This autonomy is essential and is protected within the values recognized and implemented by the legal system.
It is necessary to note that the issue of the amount of remuneration is the subject of negotiations between the parties to the employment relationship and until the amount of remuneration falls within the limits of fair and equitable remuneration, neither the pension authority nor the Social Insurance Court should interfere with the content of the remuneration conditions agreed by the parties.
The position of ZUS is presented differently - according to it, the public interest must be taken into account - and in some cases interference with the content of the terms and conditions of remuneration is necessary. It is limited to an exceptional situation and is examined in terms of gross violation of the law in terms of the illusiveness of the provisions of such a contract or whether it is in obvious contradiction to the principles of social coexistence.
If the ZUS inspection shows that the amount of remuneration and the contribution calculation basis are incorrect, the remuneration may be reduced on the basis of the issued decision. An employee who does not agree with this has the right to appeal against such a decision, ultimately the case may even go to court.
Before important decisions that have legal consequences, it is worth consulting a lawyer to make the most favorable decision. Now it is also possible over the phone. Check HaloPrawo.pl - remote legal advice (more at: https://haloprawo.pl/pl/).