ADVICE

NEW TYPE OF WORK PERMIT FOR FOREIGNERS EMPLOYED IN POLAND

NEW TYPE OF WORK PERMIT FOR FOREIGNERS EMPLOYED IN POLAND

14 September 2017 | Business in Poland

In mid-August, the Act* was introduced which aims at implementing the provisions of the European Directive** into the Polish legal system, which obliges Member States to introduce the conditions and procedures for granting permits for seasonal and temporary work for foreigners. Additional changes are intended to seal the procedure for short-term work on the basis of a declaration of the person entrusting work with the intention of entrusting work to a foreigner registered in a commune labour office by citizens of the Republic of Armenia, the Republic of Belarus, the Republic of Georgia, the Republic of Moldova, the Russian Federation or Ukraine.

WHEN WILL THE CHANGES ENTER INTO FORCE?

The Act enters into force on 1 January, 2018. The exception is Article 12 of the Act concerning declarations of intention to entrust a foreigner with work that would be performed after 31 December 2018, which comes into force 14 days after the date of publication, and provisions concerning the transfer of information on entities providing work to foreigners by the authorities of the National Tax Administration to voivods and governors by means of teleinformatic systems maintained by the minister responsible for labour issues, which will enter into force on 1 July 2018.

This means that until the end of 2017 the employment of foreigners shall take place on the existing rules but without the possibility of registering statements if work based on them would be done after 31 December 2018.

Important! The transitional period shall be valid until the end of 2018, during which the foreigner shall have the opportunity to work on the basis of a statement registered by the employer at the commune labour office before the end of 2017, but no longer than by the end of 2018.

The analysis of the transitional provisions indicates that in practice there may be many doubts and problems for entrepreneurs who register statements of intention to entrust their work to their employees.


WHAT WILL CHANGE IN THE STATEMENT PROCEDURE?

The number of registered statements of the intention to entrust work to a foreigner, especially for Ukrainian citizens, is growing year by year (about 97% of all registered statements). In 2016 more than one million statements of the intention to entrust work were registered. Due to the continuing upward trend in registered statements, it was necessary to introduce legal solutions to prevent misuse of regulations concerning the assignment of work to foreigners in the simplified procedure.

 

IMPORTANT CHANGE – FEE FOR REGISTRATION OF STATEMENTS

When submitting an application for registration of a statement of entrusting work to a foreigner for registration purposes, you will be required to make a one-time payment of no more than 10% of the minimum remuneration for each foreigner. The introduction of a registration fee is a significant change, since registration had been free of charge.

Additionally, the statement will be registered if a foreigner will work outside the scope of the activity for which seasonal work permits shall be issued.

Based on a statement entered into the register of statements by the starost will be done as before, for a period of six months in the next twelve months, if the commune labour office before starting the work by a foreigner entered a statement of entrusting the work to a foreigner to the register of statements, and the work is done under the conditions set out in this statement.

 

STATEMENT NOT ONLY FOR CITIZENS OF 6 SELECTED COUNTRIES!

Another important change is the possibility of registering a statement for foreigners who are not citizens of Armenia, Belarus, Georgia, Moldova, Russia and Ukraine. According to new regulations, the commune labour office shall issue a statement of assignment of work to a foreigner into the register of statements also in case a foreigner is not a citizen of Armenia, Belarus, Georgia, Moldova, Russia or Ukraine, and will work in professions specified by the ordinance of the Minister suitable for work-related issues.


DENY OF ENTERING A STATEMENT INTO THE REGISTER OF STATEMENTS

The Starost will be able to issue a decision to refuse to enter a statement of entrusting work to the foreigner to the register of statements, if it results from the fact that:

  • the statement was made apparently,
  • The statement shall be used by a foreigner for purposes other than work for the entity or
  • by entrusting the work to a foreigner, you will not be able to meet the obligations related to running a business or entrusting work to another person.

 

REGISTRATION OF SATEMENTS – FREQUENTLY ASKED QUESTIONS

Can I register a statement of intention to entrust the work to a foreigner later this year if the foreigner arrives and starts work in 2018?

  • Yes, you can register a statement for such an employee on hitherto simplified terms, provided that work under this statement shall not be done after 31.12.2018.

Will an employee who has a registered statement from 01.06.2017 – 01.10.2017 be covered by the new registration regulations?

  • No, in the case of foreigners with registered statements before 01.09.2017, we apply the existing regulations.

 

SEASONAL WORK – NEW TYPE OF PERMIT!

Changes also include seasonal work permits. They will be issued by the starost for the place of residence or the place of residence of the person entrusting the task to a foreigner for a specified period of up to nine months in a calendar year.

 

SEASONAL WORK – WHAT EXACTLY?

According to the Directive, the Member States had to determine the types of work covered by the permit, whereas the Directive directly identifies three sectors in which the work is seasonal – agriculture, horticulture and tourism. Sectors will be determined in the executive regulation of the Minister competent for work in agreement with the Ministers competent for agriculture and tourism. Specific actions will be indicated in accordance with the Classification of Economic Activities in Poland, where seasonal work permits are issued, taking into account considerably higher demand for labour force in certain periods of the year due to recurring events or types of events that are seasonal in these subclasses of activities. Thus, only work in designated subclasses shall be covered by a seasonal work permit, which will limit the scope of this type of permit, in connection with the licensing conditions set in the Directive.

 

CONDITIONS FOR THE ISSUE OF THE PERMIT

The permit for seasonal work shall be issued if:

  • The amount of pay specified in a contract with a foreigner shall not be less than that of the employees performing the same type of work in the same time or in a comparable position;
  • The entity entrusting the performance of the work to a foreigner has given to the application for a seasonal work permit the starost’s information about the inability to meet the employer’s staff needs based on registers of the unemployed and jobseekers or a negative result of recruitment organized for the employer.

The permit for seasonal work shall be issued for a particular foreigner and shall indicate such information as:

  • entity entrusting the performance of work to a foreigner,
  • type of contract that is the basis of the work,
  • the lowest pay for a foreigner,
  • work time or number of hours worked in a week or a month
  • validity period of the permit.

If the permit relates to the work of a foreigner as a temporary worker, the employer-user shall be additionally specified in the work permit.

 

VISA PROCEDURE FOR SEASONAL WORK

According to the provisions of the Act, if a foreigner indicated in an application for a seasonal work permit applies for a visa or intends to enter the territory of the Republic of Poland under the visa-free regime, and the entity entrusting the foreigner with work fulfils the conditions specified in the Act and no circumstances for which the permit for seasonal work could be refused, the competent starost:

  • enters the application into register of applications for seasonal work;
  • issues a statement of entry to the entity entrusting a foreigner with work.

If an application for a seasonal work permit has been entered into the application records, the seasonal work permit is issued upon the foreigner’s entry into the territory of the Republic of Poland on the basis of a visa-free regime, if the entity entrusting the work to the foreigner provided a proper starost with:

  • a copy of a valid document authorizing the foreigner to stay on the territory of the Republic of Poland;
  • information about the address of the foreigner’s stay on the territory of the Republic of Poland.

 

WHOSE APPLICATIONS WILL BE INVESTIGATED IN FIRST PLACE?

It is worth emphasizing that when considering applications for seasonal work permits the starost will take into account the priority of foreigners who had worked for the entity on the basis of a seasonal work permit at least once in the 5 years preceding the submission of the application.

 

WILL ENTRUSTING OF A DIFFERENT TYPE OF WORK TO A FOREIGNER NEED A NEW PERMIT?

By entrusting work to a foreigner on the basis of a seasonal work permit, you will be able, under certain conditions, to assign him/her work of a different type than the work performed within the scope of the activity specified in the regulations of the Minister of Labour in consultation with the Minister competent for agriculture and the Minister competent for tourism, for periods no longer than 30 days within the validity of the permit in total.

 

CAN YOU EXTEND THE PERMIT?

If a foreigner entered the territory of the Republic of Poland on the basis of a visa issued for seasonal work or the visa-free regime in connection with an application for a seasonal work permit entered in the register, the starost will be able to issue a seasonal work permit extension to continue the seasonal work by the foreigner for the same entity entrusting the work to the foreigner or performing seasonal work to another entity entrusting the work to the foreigner.

 

FOR HOW LONG CAN YOU EXTEND THE PERMIT?

The extension of a seasonal work permit is to be issued for a period which together with the period of stay of a foreigner to perform seasonal work, calculated from the date of the first entry into the territory of the Schengen States in a given calendar year, shall not exceed nine months in a calendar year. If you apply for an extension of the seasonal work permit for a given foreigner on the basis of a seasonal work permit, and the application does not contain formal shortcomings (or they are corrected on time), the work of the foreigner under the terms of the seasonal work permit is considered legal from the date of submitting the application to the date on which the decision to extend the seasonal work permit becomes final. This is very important because of the possibility of uninterrupted employment of the foreigner.

 

APARTMENT FOR AN EMPLOYEE

If a foreigner entered the territory of the Republic of Poland on the basis of a visa issued for the purpose of performing seasonal work or the visa-free regime in connection with an application for a seasonal work permit registered in the register and you, as the employer, entrusting work under a seasonal work permit, provide accommodation – you shall be required to conclude a separate agreement with such an employee specifying the terms of rental or lending the accommodation. The agreement must be made in writing. Remember that the rent for the accommodation shall not be deducted from the foreigner’s salary! The provisions of the agreement under which the deduction of the rent from the foreigner’s pay is made shall be null and void.

 

REVOKING OF A SEASONAL PERMIT

The Starost shall issue a decision to revoke the permit for seasonal work if:

  • The circumstances or evidence related to the decision have changed;
  • The reason for granting the seasonal work permit has ceased;
  • The entity entrusting the performance of work to a foreigner:
  1. submitted an application containing incorrect personal or false information or attached documents containing such data or
  2. testified untrue or concealed the truth, or used forged or altered the document or used such a document as an authentic one;
  • The entity entrusting the performance of work to a foreigner has failed to fulfil its obligations under the Act;
  • The entity entrusting the performance of work to a foreigner does not run activities that would justify the entrusting of work to a foreigner; in particular, it does not conduct any business, statutory or agricultural activities; its activity is in the period of liquidation or during the period of suspension;
  • An entity entrusting the performance of work to a foreigner has been punished for activities specified in the Act.

 

HOW LONG WILL THE ISSUE OF THE PERMIT LAST?

In accordance with the provisions of the Act, in cases that do not require an investigation, the starost shall make an entry in the register of applications for seasonal work or shall issue a decision to refuse to issue a seasonal permit within 7 working days of the submission of the complete application.

In cases that do require an investigation, the starost shall make an entry in the register of applications for seasonal work or shall issue a decision to refuse to issue a seasonal permit within 30 working days of the submission of the complete application.

Therefore, if you submit a complete application you should get a seasonal work permit for your employee within 7 working days.

 

CHARGES

By providing a foreigner with work, when applying for a seasonal work permit or extending it, you shall be required to make a one-time payment of no more than 10% of the minimum remuneration for each foreigner.

 

LIMITS OF ISSUED AUTHORIZATIONS AND STATEMENTS

Changes to the Act also provide for the possibility of limiting the number of permits issued for seasonal work and statements of the intention to entrust work to a foreigner. According to Art. 90b par. 2 of the Act, the Minister competent for labour affairs, in agreement with the Minister competent for agriculture, the Minister competent for economy and the Minister competent for internal affairs may determine by way of ordinance the maximum number of seasonal work permits that may be issued in a given calendar year, considering the needs of the labour market, considerations of state security and public order, and the principle of complementarity of employment of foreigners in relation to Polish citizens.

Limits may apply to particular provinces, professions, types of contracts on the basis of which a foreigner may be entrusted with the performance of work, or types of activities of an entity entrusting the employment to a foreigner according to the Polish Classification of Activities.

Similar changes concern statements since the Minister competent for labour in agreement with the Minister competent for economy, and the Minister competent for internal affairs can determine, by regulation, the maximum number of statements that in a given calendar year may be entered in the register of statements by the starosts, considering the needs of the labour market, considerations of state security and public order, the principle of complementarity of employment of foreigners in relation to Polish citizens and charges and possibilities of the starosts resulting from the implementation of tasks in previous years.

Limits may apply to particular provinces, professions, types of contracts on the basis of which a foreigner may be entrusted with the performance of work, or types of activities of an entity entrusting the employment to a foreigner according to the Polish Classification of Activities.

The minister competent for labour issues shall include information on the state of limit use referred to above in the Public Information Bulletin, and shall announce their exhaustion in the Official Journal of the Republic of Poland entitled “Monitor Polski”, by way of announcement.

 

TEMPORARY STAY PERMIT DUE TO SEASONAL WORK

The temporary residence permit for seasonal work shall be granted to a foreigner if the purpose of its stay on the territory of the Republic of Poland is to perform seasonal work for an entity which had been entrusting the work or another entity entrusting the work, if the foreigner meets the following conditions:

  • It will enter the territory of the Republic of Poland on the basis of a visa or a visa-free regime in connection with an application for a seasonal work permit entered in the register of applications;
  • It will have a seasonal work permit or an extension of a seasonal work permit, valid for a period exceeding the length of the stay specified in the visa or the visa-free regime;
  • It will have a source of stable and regular income sufficient to cover maintenance costs;
  • It will have health insurance within the meaning of the Act of 27 August 2004 on publicly-funded health care services or confirmation of coverage of medical expenses on the territory of the Republic of Poland by the insurer;
  • It will have accommodation provided on the territory of the Republic of Poland.

 

The temporary residence permit for seasonal work shall be granted for the period of the seasonal work permit owned by a foreigner or extension of the seasonal work permit, not longer than 9 months from the first day of entry in a given calendar year. The issue of this type of permit will cost 170.00 PLN.
*Act amending the Act on promotion of employment and labour market institutions, and other acts, published on 17 August 2017 in the Journal of Laws of the Republic of Poland.

**Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country citizens for the purpose of employment as a seasonal worker (Journal of Laws EU L 94, 28.03.2014, p. 375);

Sources:

  • Act of 20 July 2017 amending the Act on promotion of employment and labour market institutions, and other acts (Journal of Laws 2017, item 1543);
  • Act on promotion of employment and labour market institutions of 20 April, 2004 (Journal of Laws of 2016, item 645);
  • Act on foreigners of 12 December, 2013 (Journal of Laws of 2013, item 1650, as amended);
  • **Directive 2014/36/EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and stay of third-country citizens for the purpose of employment as a seasonal worker (Journal of Laws EU L 94, 28.03.2014, p. 375);
  • The prezydent.pl service

 

LEAVE A COMMENT

ul. Zwierzyniecka 30/5
31-105 Kraków

tel./fax: 12 422 92 56
mobile.: +48 502 133 517

kancelaria@employerpoland.pl

Copyright 2019 Ⓒ Employer Poland