Posting of workers to Poland in the framework of the provision of services during SARS-CoV-2 virus outbreak

A foreign employer posting a worker to perform work in the territory of Poland on temporary basis is obliged to fulfil a number of requirements related to posting of workers as provided for in Chapter 5 of the Act on posting of workers in the framework of the provision of services (Official Journal 2018, item 2206 consolidated text) concerning, among others:

  • Designating a person to liaise in contacts with the State Labour Inspection and the posting employer and to send and receive documents or notifications – who shall stay in the territory of Poland during posting. The Act does not specify any other requirements concerning the above person (it could even be one of the posted workers) except for the requirement to stay in Poland during the posting;
  • Submitting to the State Labour Inspection – no later than on the day of commencement of the provision of service in Poland – a statement on posting of a worker to the territory of the Republic of Poland comprising:
  1. identification data of the employer, estimated number of workers posted to work in Poland (specifying their name, surname, date of birth and nationality),
  2. expected date of commencement and completion of the service,
  3. addresses of workplaces of posted workers,
  4. the nature of service justifying posting,
  5. contact details of the liaison person in contacts between the posting employer and the State Labour Inspection (specifying their name, surname, residence address in Poland, telephone number and business email address),
  6. storage place of documents on employment relationship of a posted worker (concerning their working time, and remuneration for work during posting),
  7. identification data of user undertaking in the territory of Poland if a temporary worker is posted.

 

The statement should be submitted to the State Labour Inspection in writing (on paper or electronically) either in Polish or English;

  • Storage of documents in the territory of the Republic of Poland – in paper or electronic form:
  1. copy of a work contract of a posted worker or any other equivalent document confirming the conditions of work under an employment relationship between the posted worker and his proper employer abroad,
  2. documents (or copies thereof) on working time indicating the number of working hours on a given day, as well as the start and end time of work,
  3. documents on the amount of posted worker’s remuneration along with the amount of deductions made (in line with the law applicable to the contract of employment) and proofs of payment of remuneration to the worker.

 

The Act does not specify the place where the a/m documents are be stored (e.g. in the factual place of posted workers’ work in the territory of Poland). These documents can be stored at any place in Poland.

  • Notifying the State Labour Inspection of any change of information comprised in the submitted statement on the posting of a worker to the territory of Poland by submitting to the SLI, also in writing on paper or electronically, either in Polish or in English, a notification of change of data included in the statement.

These obligations have been imposed on the employer posting a worker to the territory of Poland, which also includes foreign agencies, i.e.:

  • temporary employment agencies or
  • agencies hiring out staff,

posting a temporary worker to work for the benefit of:

  • a Polish user undertaking, as well as
  • a user undertaking in the same or another Member State,

which then sends the worker in question to work in Poland in the framework of the provision of services in the territory of our country.

Owing to extraordinary circumstances related to the announcement in the territory of Poland of a state of epidemic due to the outbreak of SARS-CoV-2 virus no special regulations have been introduced that would exempt foreign employers from obligations imposed by the Act.

In the period of posting of a worker to the territory of Poland a legal relationship with the domestic employer does not cease to exist. Mutual obligations of the parties to an employment relationship are still regulated by the law applicable to the contract of employment. The foreign employer is obliged to comply to a limited extent, with the Polish legal provisions arising from the stipulations of:

  • the Act of 26 June 1974 Labour Code and
  • other provisions on worker rights and duties which are considered to be overriding, regardless of the legal system chosen by the parties to regulate individual employment relationship.

The Act requires that a posting employer should ensure to a worker posted to the territory of Poland (with the exclusion of posted temporary workers)for the duration of the performance of work on a temporary basis – until the lapse of 12 months of posting – such  working conditions that are no less favourable than the ones provided for in the Polish legislation, in terms of:

  • standards and working hours and daily and weekly rest periods,
  • length of annual leave,
  • the amount of remuneration, including allowance for overtime work,
  • occupational safety and hygiene,
  • protection of female workers during pregnancy and during maternity leave,
  • employment of minors,
  • performance of work or other gainful activities by a child,
  • principle of equal treatment and the prohibition of discrimination in employment,
  • allowances to cover cost of travel related to a business trip from the place of work in Poland, where a worker was posted, to another place of work within or without the territory of Poland.

An employer posting a worker (who is not a posted temporary worker) to the territory of Poland for the period exceeding 12 months is obliged to ensure to that worker working conditions that are no less favourable than those imposed on Polish employers pursuant to the legal provisions of the Labour Code and other provisions regulating the rights and obligations of workers, with the exclusion of:

  • rules and mode of conclusion and termination of employment contracts,
  • rules and mode of application of non-competition clauses
  • worker retirement schemes and worker capital plans.

This means that a worker posted to Poland for the period exceeding 12 months must be treated on the same terms as the worker employed by a Polish employer in terms of employment conditions, while a posted employer is obliged to comply with Polish labour law provisions in a broad scope with the exception of three instances described above.

The period of posting, during which a worker posted to the territory of Poland must have so called minimum employment conditions can be extended beyond 12 months, however no longer than till the lapse of 18 months of posting on condition of submitting a reasoned notification to the State Labour Inspection.

Employment conditions guaranteed to a temporary worker posted to the territory of Poland must not be less favourable than condition of employment of domestic temporary workers throughout the whole period of posting. Employment conditions of temporary workers are laid down in universally applicable legal provision on the performance of temporary work. Additionally, a temporary worker posted to work in Poland must be ensured employment conditions stemming from collective labour agreements (company and supra company) and others act-based collective agreements, regulations and statues specifying rights and obligations of parties to an employment relationship, which are not universally applicable, on the same principles on which they are guaranteed to domestic temporary workers. This applies, among others, to conditions of remuneration and accommodation ensured to workers staying away from their usual place of work.

A posted worker who stays and performs work (including telework) in the territory of Poland during the state of epidemic due to the outbreak of SARS-CoV-2 virus should be ensured the above mentioned minimum working conditions of employment laid down in the Polish legislation (in the scope depending on the duration of posting) and in case of posted temporary workers, also conditions stemming from in-house sources of law (agreements, regulations and statutes) to an extent to which they are applicable to domestic temporary workers.

In case it is unfeasible for a posted worker to perform work in the territory of Poland in a workplace or in the framework of telework owing to COVID-19 related restrictions, it should be assumed that such circumstances are beyondthe posted worker’s control. By no means should they bear any negative consequences of this situation. If the worker stays in the territory of Poland without performing any type of work, yet they are ready to perform it, relevant Polish labour law provisions should be applied.

In line with Art. 80 of the Labour Coderemuneration shall be due for work actually performed. The employee shall only preserve the right to remuneration for a non-working period if the provisions of the labour law so provide. An example of remuneration that is due to a worker despite no work performance is the remuneration for the so-called downtime.Pursuant to Art. 81. if the employee is ready to perform work, but they are prevented from it for reasons attributable to the employer, they shall be entitled to remuneration for the period not worked in accordance with their individual rate of pay expressed as an hourly or monthly rate, and if such component of the remuneration is not specified in the conditions of remuneration – in the amount of 60% of the remuneration. In any case, such remuneration shall not be lower than the minimum remuneration for work established under separate regulations.

Downtime pay is due to a worker for the time of downtime that was not due to the worker’s fault. If the downtime was due to the worker’s fault no remuneration shall be due.

In the opinion of the State Labour Inspection the above regulations concerning remuneration for downtime are applicable to workers posted to the territory of the Republic of Poland who, owing to the state of epidemic, cannot perform work while they stay in the territory of Poland in spite of their readiness to perform it. In this situation workers will be at least entitled to minimum remuneration for work in the meaning of the Act  of 10 October 2002 on minimum remuneration for work in the amount provided for in the Regulation of the Council of Ministers of 19 September 2019 on the amount of minimum remuneration for work and minimum hourly rate of pay in 2020.

There are no obstacles to ensure more favourable working conditions for a worker posted temporarily to work in the territory of Poland (including downtime) than the conditions resulting from the legislation of the posting country (pursuant to Art. 3 par. 7 of the cited Directive 96/71/EC), e.g. in terms of amounts of remuneration for work. In this case it is assumed that minimum standards of employment guaranteed to the worker under overriding Polish regulations are met.

Currently, posting new workers to perform work in the territory of Poland on a temporary basis may be hampered due to restrictions concerning entry into the territory of the Republic of Poland and crossing the national border.

Restrictions and exceptions regarding travel to the territory of Poland are laid down in the Regulation of the Council of Ministers of 9 October 2020 on establishing certain restrictions, injunctions and prohibitions due to the state of epidemic.

The competent authority to provide binding information in this regard is the Border Guard. Contact with the border service in the above cases is indicated as advisable also on the website of the Office for Foreigners: www.udsc.gov.pl

Queries concerning the conditions of entry and stay of foreigners in the territory of the Republic of Poland can be addressed to the Border Guard by email at:

zdsc.kg@strazgraniczna.pl

or by phone, from Monday to Friday(from 8.15 to 16.15) at the telephone numbers listed at: 

https://www.strazgraniczna.pl/pl/cudzoziemcy/covid-epidemia-koronawi-1/8604,Infolinia-COVID-Koronawirus.html


A special service was put in operation at: https://granica.gov.pl/, where information is available – also in English – on current restrictions concerning crossing of the border and entry of foreigners into the territory of Poland -  https://www.gov.pl/web/coronavirus/travel.

 

USEFUL LINKS:

State Labour Inspection:

https://www.pip.gov.pl/pl/

 

Helpline of the Border Guard:

https://www.strazgraniczna.pl/pl/cudzoziemcy/covid-epidemia-koronawi-1/8604,Infolinia-COVID-Koronawirus.html

https://granica.gov.pl/

 

Office for Foreigners:

https://udsc.gov.pl/cudzoziemcy/epidemia-koronawirusa/

https://udsc.gov.pl/epidemia-koronawirusa-przekraczanie-granicy/

 

Social Insurance Institution:

https://www.zus.pl/o-zus/aktualnosci/-/publisher/aktualnosc/1/tarcza-antykryzysowa-wsparcie-z-zus/2551371

 

European Commission:

https://ec.europa.eu/social/main.jsp?catId=89&langId=pl&furtherNews=yes,

https://ec.europa.eu/social/main.jsp?langId=pl&catId=89&furtherNews=yes&newsId=9630,

https://ec.europa.eu/social/BlobServlet?docId=22486&langId=pl

https://europa.eu/youreurope/citizens/files/Covid_FrontierPostedWorkers_en.pdf

 

EURES

https://eures.praca.gov.pl/o-nas/informacje-o-eures/koronawirus-wplyw-na-mobilnosc-pracownikow-w-ue-efta

 

Governmental website:

https://www.gov.pl/web/koronawirus

We particularly recommend becoming familiarized with information placed on the Polish website on posting of workers to the territory of Poland, which is available in the information and service portal for employers www.biznes.gov.pl. The above is an official web portal which, pursuant to art 13 of the Act of 10 June 2016 on the posting of workers in the framework of the provision of services and in line with Directive of the European Parliament and of the Council 2014/67/EU, contains detailed information on rules and conditions of posting of workers to the territory of Poland, obligations of posting employers, forms of documents concerning posting of a worker to the territory of Poland along with creators which make it possible to submit them to the State Labour Inspection electronically. These are available in two language versions: Polish and English at the following addresses:

www.biznes.gov.pl/delegowanie

https://www.biznes.gov.pl/en/firma/doing-business-in-poland/posting-of-workers-to-poland