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Posting employees to Poland

In accordance with the definition contained in the Act on the posting of workers as part of the provision of services (Act of June 10, 2016, Journal of Laws of 2016, item 868), an employer posting an employee to work in Poland is an entity that conducts a significant part of economic activity in another Member State.

In the case of posting an employee, we are talking only about a temporary change of his workplace. This may be dictated, for example, by the performance of a contract signed by the current foreign employer with an economic entity conducting business in Poland or by referring an employee to a branch or enterprise located in Poland but belonging to a given group of enterprises, to which the foreign employer also belongs.

Since the end of July 2020, a number of regulations regarding the posting of workers within the European Union countries have changed. The changes were dictated by the need to adapt national regulations to the provisions introduced by Directive 2018/957 of the European Parliament and of the Council of the European Union of June 28, 2018 amending Directive 96/71 / EC on the posting of workers as part of the provision of services. Thus, all European Union countries have been obliged to adjust their national regulations by July 30, 2020.

After July 30, 2020, an entity running a business in another Member State and posting an employee on the territory of Poland is obliged to provide such an employee until the end of 12 months of posting with employment conditions at least as favorable as those specified in the provisions of the Polish Labor Code (Act of of June 26, 1974 – the Labor Code, Journal of Laws of 2020, item 1320) and other national regulations in this regard.

The minimum terms and conditions of employment for the first 12 months of posting apply mainly to:

Provide the posted worker with minimum daily and weekly rest periods as well as define the size and standard of working time

• Payment of at least the minimum wage

• Respecting the provisions on special employment protection, eg pregnant workers

• Ensuring the amount of holiday leave to be used

• Respect the provisions on equal treatment

• Guaranteeing the coverage of costs related to business trips, which were commissioned to the employee, in accordance with the regulations and rates for domestic and foreign business trips in force in Poland

• Ensuring appropriate health and safety conditions at work

When determining whether the condition for the payment of the minimum wage has been met, one should take into account not only the basic salary, as it was defined before the amendment to the regulations, but also all components of the remuneration that should obligatorily be paid to the employee, e.g. an allowance for overtime work or an allowance. for work at night. This means that the posting employer should provide the posted worker with the same pay conditions as are received by workers in the country to which the posted worker is posted.

It often happens that the posting employer pays a supplement for the posting period in addition to the basic salary. This allowance may be included in the minimum remuneration for work that should be provided by the posting employer, provided that the allowance does not constitute reimbursement of the employee’s food, accommodation or travel costs.

A novelty in the introduced provisions is also providing the employee posted to Poland with at least the same allowances or reimbursement of expenses to cover the costs of travel, meals and accommodation provided for employees who are on a business trip.

Until July 2020, the regulations did not specify the maximum period of posting workers. However, from August 2020, when posting an employee to Poland, he should be provided with the employment conditions listed above. The period of 12 months is the maximum duration of the posting, which may be extended under certain conditions, but for a period not longer than 18 months from the date of the commencement of the posting. The extension of the period from 12 to 18 months may take place only with the consent of the National Labor Inspectorate, at the request of the posting Employer, who must justify the need to extend the posting period. The application may be submitted by the entrepreneur before the end of the basic 12-month period of posting at the latest.

The justification for the application should include the employer’s data, the posted employee’s data, the address of the workplace, the period of posting and, above all, a detailed reason for the need to extend the posting period. The notification may be submitted on paper or electronically in Polish or English.

After 12 months or, in justified cases – an 18-month period, the employer posting the employee to Poland will also have to provide the employee with other employment conditions that are not less favorable than provided for by Polish labor law. A foreign employer will only be exempt from compliance with the provisions on the principles of concluding and terminating the employment relationship, application of the provisions on non-competition and employee capital plans or employee pension plans

The change in the provisions on posting will certainly increase administrative activities on the part of the employer who decides to post an employee, as well as an increase in the costs of temporary change of the workplace. Employers may find it difficult to establish the terms and conditions of employment applicable in the country to which the employee is posted and to assess their advantage against the regulations of the home country.

It should also be remembered that the employer still has obligations to the National Labor Inspectorate regarding the notification of the fact that an employee is posted to the territory of the Republic of Poland.