The Employee Capital Plan Act, which came into force on 1 January 2019, is one of the most important legislative developments of 2019. This is especially true for employers, as they need to prepare for the new obligations and further expenditure. On the other hand, employee capital plans (ECP) could substantially increase Poles’ savings and be an additional source of income in retirement.
ECPs were introduced to complement the III pillar of the social security system, alongside employee pension schemes, individual pension accounts, and individual pension security accounts. The fundamental difference is that ECPs are intended as a rule to apply to all employees by default, but an employee can opt out at any time.
Who is affected
ECPs will not apply to all employers straightaway in 2019. The firms with the largest headcounts, of over 250 people (as at the end of December 2018) will be required to introduce them first, from July 2019. Over subsequent years, in principle, all institutions that employ staff will have to set up ECPs, and eventually, in 2021, the Act will apply to the smallest employers (less than 20 people) and the public sector. Interestingly, the term “institution employing people” is used in the Act, which means not only employers as defined in the Labour Code, but also merchant employers, farmer production cooperatives, farmer circle cooperatives, a principal ordering services, and an institution that has a supervisory board. Equally, ECPs will apply not only to employees, but to people conducting cottage industry activities, people employed in farmer cooperatives, independent service providers, and supervisory board members who receive remuneration for that function, as well. Microenterprises will be exempt from this requirement if all of the persons employed declare that they wish to opt out of the ECP.
Employing institutions that operate employee pension schemes and calculate and pay basic contributions to employee pension schemes of a minimum of 3.5% of remuneration as of the dates on which the Act begins to apply to them (such as 1 July 2019) are also exempt from the ECP requirement, provided that a minimum of 25% of persons employed in the institution in question join the plan.
Both the employer and employees will be required to pay ECP contributions. Additional payments will come from the labour fund. The basic (compulsory) payment made by an employer will be 1.5% of the monthly remuneration of the person employed. The employer can also pay an extra 2.5% of remuneration. The extra payment may vary in value however according to the length of service at the institution in question, or be specified in a collective bargaining agreement or remuneration by-laws. The extra payment could therefore be an element of an incentive scheme in the employing institution concerned.
The basic payment made by an employed person is 2% of the monthly remuneration. Where an employee’s remuneration is below the amount specified in the ECP Act, the basic payment can be reduced to 0.5% of the monthly remuneration. The extra payment made by the employee can be up to 2% of the remuneration. Therefore, to summarise, the payments made by the employer and the employee will amount to a maximum of 8% of the monthly remuneration.
Another basic principle adopted in the Act is that contributions should also be made to ECPs from the labour fund. In this case, two types of contribution are envisaged, the initial payment made upon joining (PLN 250), and an annual payment (PLN 240).
When to set up an ECP – lack of clarity as to dates
The largest employers will be subject to the ECP Act as of 1 July 2019, but this does not mean that they will have to have functioning capital plans and make payments to the ECP on that date. Under interim provisions, institutions that are subject to the Act as of 1 July 2019 will be required to conclude an ECP agreement by the 10th day of the month that falls after a period of three months from the day the ECP Act begins to apply to the institution in question. Incidentally, an employer is not party to an ECP agreement. It merely enters into the agreement on behalf and for the benefit of the person employed. The employing institution will conclude the ECP agreement no less than 10 business days prior to the end of the ECP agreement conclusion time limit. Thus the employing institution has to conclude the ECP agreement by 10 November, because the three-month time limit that starts on 1 July ends on 1 November, according to the rules provided for in civil law on calculation of time limits. However, as 10 November is a Sunday, and 11 November is a national holiday, the obligation to conclude the ECP agreement arises on 12 November. However, there are doubts about this date and some take the view that the ECP agreement conclusion deadline is 10 October.
An ECP agreement must be concluded 10 business days prior to the end of the time limit for concluding the ECP agreement. More doubts rise however about what is meant by a “business day”, and whether this should be counted as provided for in employment law (Saturday is a business day) or whether a business day is a day from Monday to Friday. Unfortunately the ECP Act does not address this issue.
Kamil Jabłoński, attorney-at-law, Employment practice, Wardyński & Partners