The Act on Posting of Employees for Performance of Services of 10 June 2016, implementing the Posting of Workers Directive (96/71/EC) and the Enforcement Directive (2014/67/EU), imposes a number of obligations on foreign employers posting their employees to Poland which may prove difficult to implement in practice.
Who is covered by the obligations
The Polish act applies to foreign employers (those based in and conducting significant business in a member state of the European Union, as well as those based and operating in other countries) posting employees to Poland:
- In connection with performance of a contract with an entity operating in Poland
- To a branch or enterprise operating in Poland belonging to a group of enterprises which the foreign employer belongs to, or
- As a temporary employment agency.
Minimum employment conditions
Under the act, foreign employers posting their employees to Poland must ensure them employment conditions no less favourable than those arising under the Polish Labour Code and other regulations governing the rights and obligations of employees with respect to:
- Norms and measurements of working time and daily and weekly periods of rest
- Length of annual leave
- Minimum wage
- Rates of pay and supplements for overtime work
- Occupational health and safety
- Rules for equal treatment and non-discrimination in employment as referred to in Labour Code Art. 112 and 113
- Protection of female employees during pregnancy and maternity leave
- Hiring of young workers and performance of work and other gainful activity by minors
- Performance of work in accordance with regulations on the hiring of temporary employees.
For practical reasons, including unfamiliarity with the regulations in force in Poland and the inability to exercise actual control over employees’ working time and safety, foreign employers often conclude agreements with host entities in Poland involving cooperation in certain of the foregoing areas, or even handing over the performance of actions and tasks in certain of these areas (e.g. occupational health and safety).
Foreign employers posting their workers to Poland must also comply with a range of administrative obligations before the Polish authorities.
One of them is to file with the National Labour Inspectorate (PIP), no later than the date of commencement of the posting of an employee or employees, a declaration with certain information concerning the details of the foreign employer, the host entity, the posted employees, and the conditions of their posting. The inspectorate must also be notified of any subsequent change in certain information provided in the declaration. Performing this obligation typically does not present difficulties, as the declaration may be submitted in person, by post, or online, in each case using a special form. It can also be filed by any of those routes by a proxy, enclosing the power of attorney.
Foreign employers must also designate a person authorised to intermediate in contacts with the National Labour Inspectorate and to send and receive documents and notices. This person must be present in Poland during the period of posting of the workers. This person should be indicated in the declaration referred to above filed with PIP. This obligation can be somewhat problematic, particularly when workers posted to Poland are not accompanied by a person coordinating their work or carrying out administrative duties. In such case, usually a staff member of the host entity should be selected for this role, concluding an appropriate agreement with the host entity.
For similar reasons, difficulties may also be presented by another obligation: to store certain documents in Poland, in paper or electronic form, during the posting period (the location for storage of these documents is also indicated in the declaration submitted to PIP). These documents include:
- A copy of the posted worker’s employment contract or equivalent document specifying the terms and conditions of the employment relationship
- Documentation of the posted worker’s working time, including starting and ending time and number of hours worked on each day (or a copy thereof)
- Documents specifying the amount of pay of the worker posted to Poland, together with deductions made in accordance with applicable law, and proof of payment of salary to the worker (or copies thereof).
Foreign employers posting their employees to Poland are also required to provide access to these documents (if necessary with a Polish translation) at the request of the Chief Labour Inspectorate—during the period of posting, no later than 5 business days from receipt of the request from PIP, and after the end of the posting (for a further 2 years), within 15 business days.
Magdalena Świtajska, adwokat, Employment & Global Mobility practice, Wardyński & Partners