In the context of dynamic cross-border economic cooperation, labour mobility is essential. Businesses should remember that posting an employee is subject to special legal regulations that, if not complied with, may trigger financial consequences.
The important issue is to know that labour mobility is an element of one of the fundamental freedoms protected by EU law – the freedom to provide services. The principle of the freedom to provide services entitles economic operators to provide their services in another EU Member State without having to become registered or established there. Due to the cross-border nature of this principle, the rules on posting workers have been unified across the EU. In Poland, the EU solutions have been implemented in the Act on the Posting of Workers for the Provision of Services of 10 June 2016 (the “Polish Posting Act”).
In this article, we introduce the basic rules on posting workers to Poland – Polish employers posting workers to another EU Member State must act in line with regulations applicable in the host country.
A worker is posted to Poland if a foreign employer:
refers a worker to perform a contract concluded with a Poland-based partner; or
refers a worker to work in its Polish division or other member of its capital group operating in Poland.
Posting involves individuals employed by the business making the posting – in connection with the posting, posted workers do not enter into any new legal relationship, with the posted worker remaining employed by the original employer, who manages, settles and pays for the work.
Posting is a temporary assignment. In general, a posting assignment cannot exceed 12 months, but if the employer makes a motivated notification to the National Labour Inspectorate (Państwowa Inspekcja Pracy), the posting period may be extended to 18 months. Employers intending to post employees must observe these time limits.
Importantly, the Polish Posting Act does not specify a minimum posting period, meaning that stays of just several days or even a one-day visit to Poland may qualify as posting for the provision of services.
At the same time, it must be remembered that posting is not the same as a business trip – in the event of a posting, a foreign employer must agree with the employee on any temporary change in the place of work to another place in Poland and then execute a relevant agreement in this respect.
Please note that the rules on posting also apply to employees seconded to work in Poland by non-EU employers.
Although a posted worker works on the basis of the employment contract with its original employer for the duration of the posting, they must benefit from the same basic working conditions and rights as workers in Poland (known as minimum working conditions). This means that, during the posting period, a posted worker will fall under the terms and conditions of employment resulting from the Polish Labour Code and labour and employment regulations. If the terms and conditions included in the original employment contract are less advantageous than the statutory terms and conditions of employment, the employer must adjust them accordingly. Specifically, the requirement to provide the minimum working conditions includes the obligation to pay posted workers the same for the same job as their local peers.
In addition, a posting employer must:
appoint a person authorised to contact the Polish Labour Inspectorate in Poland;
notify the National Labour Inspectorate (Państwowej Agencji Pracy) about the posting (specifically, the anticipated dates of the commencement and termination of posting and the nature of the services to be provided in Poland by the posted worker, with a statement of reasons for posting);
keep specific files in Poland applicable to the posting (copies of the employment contracts, working time records and salary acknowledgement receipts).
The National Labour Inspectorate may review compliance related to the posting of workers. For this purpose, the employees’ watchdog may demand explanations from the foreign employers, check whether the terms and conditions of posting are complied with (specifically with respect to the scope of business of the posting employer and the period of posting) and whether the posted workers are treated fairly.
In the case of any non-compliance or negligence on the part of the posting employer, the National Labour Inspectorate may impose a fine of up to PLN 30,000.
Additionally, posting employers must remember that:
the legal employment and legal stay of a posted worker in Poland (specifically, receiving a work permit) is a totally different thing than the employer’s duties associated with posting – the posted employer must seek relevant documents before the worker is posted;
posting triggers consequences under the social insurance law (A1 form for a posted worker) and tax law (a tax residence certificate).
Posting workers is a complex and multifaceted process in the legal context. In order to make it right and avoid painful consequences, you have to comply with all applicable laws from a number of areas.