Posting of workers to Poland: duties of the employer
When delegating an employee to work in Poland, the employer has to fulfil a number of obligations. They concern, among others, conditions of employment of posted employees, as well as regulate employees’ rights in the case of disputes related to the performance of work in Poland. The detailed scope of regulations that must be followed by the employer posting employees to the territory of Poland is specified in the act of 10 June 2016 on the posting of employees as part of the provision of services (“Act”).
WHO IS AN EMPLOYEE POSTED IN THE TERRITORY OF RP?
According to the above Act, an employee posted to the territory of the Republic of Poland shall mean an employee employed in another Member State, temporarily directed to work in the territory of the Republic of Poland by the employer posting the employee to the territory of the Republic of Poland. This term shall apply accordingly to the performance of work in the territory of the Republic of Poland by an employee referred to this work by an employer established in a non-member state.
WHAT ARE THE TERMS OF EMPLOYMENT ABOUT?
Employees posted to the territory of the Republic of Poland should have employment conditions guaranteed that are not less favourable than those resulting from the labour law provisions in force in Poland. According to Article 4 of the Act, these conditions include:
- Standards and working hours, as well as daily and weekly rest periods. The general rule is that the working time may not exceed 8 hours a day and an average of 40 hours in an average five-day working week in the accepted reference period not exceeding 4 months. The billing period may be extended in any working time system. However, this must be justified by objective, technical or organisational reasons, but not more than up to 12 months, while maintaining general principles regarding the protection of the safety and health of employees. The employee is entitled to at least 35 hours of uninterrupted rest each week, including at least 11 hours of uninterrupted daily rest. However, the above rule does not apply to employees managing the workplace on behalf of the employer. It also does not apply to cases of necessity to conduct a rescue operation to protect human life or health, to protect property or the environment, or to remove breakdowns.
- The employee is entitled to at least 35 hours of uninterrupted rest each week, including at least 11 hours of uninterrupted daily rest. However, the above rule does not apply to employees managing the workplace on behalf of the employer. It also does not apply to cases of necessity to conduct a rescue operation to protect human life or health, to protect property or the environment, or to remove breakdowns.
- Minimum salary for work. Every employee who works under a full-time contract of employment has a guaranteed minimum wage. In 2018, the minimum salary is 2,100 zł gross. Note! In the case of an employer based in a country other than a Member State, the remuneration that will be due to a foreigner for performing work may not be lower by more than 30% than the average remuneration in the voivodeship, as published by the President of Statistics Poland.
- The salary for work and allowance for overtime work. For overtime work, in addition to regular salary, the employee is entitled to an allowance at 100% of the salary for work at night; on Sundays and holidays that are not working days for the employee, according to the working time schedule applicable to him/her; on a non-working day granted to the employee in exchange for work on a Sunday or a holiday, in accordance with his/her working time schedule; 50% of the salary for overtime work falling on any other day than the one specified above.
- Occupational health and safety. Initial medical examinations; periodic medical examinations; medical reports; referral for medical examinations, documentation confirming the assessment of occupational risk; compulsory health and safety training for newly recruited employees; on-the-job training.
- Protection of employees during pregnancy and during maternity leave
- Employing adolescents and performing work or other earning activities by a child. An adolescent is a person at least 16 years old and under 18 years of age. Persons under 16 years or age must not be employed in Poland. Young people may only be hired who have completed as a minimum a junior high school. They must also present a medical certificate stating that the work of this type does not endanger their health
- Principles of equal treatment and prohibition of discrimination in employment. No discrimination in employment, direct or indirect, is allowed, in particular, due to gender, age, disability, race, religion, nationality, political beliefs, trade union membership or ethnicity. Discrimination is not allowed on the grounds of religion, sexual orientation, temporary or indefinite-time employment or full-time or part-time employment.
- Performing work in accordance with the provisions on the employment of temporary workers. Detailed conditions for employing temporary employees by an employer who is a temporary employment agency and directing those employees and persons who are not employees of a temporary employment agency to perform temporary work for the benefit of the user employer is specified in the act of 9 July 2003 on the employment of temporary employees.
WHEN THE ABOVE TERMS DO NOT NEED TO BE FULFILLED?
If the employee performs preliminary assembly or installation work, the performance of which is necessary for the use of the products supplied, the conditions of employment regarding:
- holiday leave;
- minimum salary for work determined on the basis of separate provisions;
- the salary and allowance for overtime work.
ADDITIONAL OBLIGATIONS RESULTING FROM THE ACT OF JUNE 10 JUNE 2016 ON THE POSTING OF EMPLOYEES UNDER THE PROVISION OF SERVICES.
- When posting employees to work in Poland, a person should be appointed to assist the National Labour Inspectorate. In particular, this applies to sending and receiving documents or notifications. Such a person should stay during the posting in the territory of Poland, and should have documents confirming the fulfilment of obligations regarding employment conditions.
- At the latest on the date of commencement of the service, a statement must be submitted to PIP. It contains information that is useful when conducting PIP checks, including the necessary data that will allow the identification of the place of service, e.g. in the case of PIP inspections. The data includes company name, seat, or a number of posted employees. These can also be work addresses of posted workers, the start and end date of the posting, and the place of storing documentation.
- In the case of changes in the employer’s identification data (name, seat, address, phone number, email address, NIP or any other tax identification number; data of the person authorized to contact PIP (name and surname, address of residence, as well as phone number and email address); places of storage of documents – the employer posting an employee to the territory of the Republic of Poland shall notify PIP of each of the above changes not later than within 7 business days from the date of the change.
- The employer posting an employee to the territory of the Republic of Poland is obliged during the period of posting to store on the territory of Poland:
- a copy of the employment contract of the employee posted to the territory of the Republic of Poland or other equivalent document certifying employment conditions under the employment relationship;
- documentation on the working time of an employee posted to the territory of the Republic of Poland regarding the commencement and termination of work and the number of hours worked on a given day or its copy;
- documents specifying the salary of an employee posted to the territory of the Republic of Poland together with the amount of deductions made in accordance with applicable law, and proof of payment of the salary to the employee or its copy.
- In addition, due to the additional requirements regarding the employment of employees, the personal files of the posted employee should also include: a copy of a valid visa or residence permit in the territory of the Republic of Poland; confirmation of the posted employee’s registration for insurance.
WHAT IS THE PENALTY FOR NOT COMPLYING WITH THE ABOVE REQUIREMENTS?
The fine is from 1,000 zł to 30,000 zł.
- Act of 10 June 2016 on the posting of workers as part of the provision of services (Dz.U. 2016 poz. 868);
- Labour Code act of 26 June 1974 (Dz.U. 1974 nr 24 poz. 141)
- Act of 13 April 2007 on the National Labour Inspectorate (Dz.U. 2007 nr 89 poz. 589)
Author: Trainee Attorney-at-Law Hanna Baszyńska
Editorial Supervision: Attorney-at-Law Paweł Tokarski