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Posting of workers in the framework of the provision of services: rules and obligations of employers posting workers

Posting is a situation in which an undertaking established in a Member State of the European Union or of the European Economic Area or Switzerland provides services outside this country and refers its workers to temporarily work at the place where these services are provided in another of the above countries.

What is posting in the framework of the provision of services?

Posting is a situation in which an undertaking established in a Member State of the European Union or of the European Economic Area or Switzerland provides services outside this country and refers its workers to temporarily work at the place where these services are provided in another of the above countries:

  • to perform a contract concluded by the undertaking posting the workers with a foreign contractor, on that undertaking’s own account and using its ‘own’ workers, who remain under its direction throughout the period when the work is carried out abroad,
  • to an establishment or an undertaking in another Member State, owned by a group of undertakings which also includes the undertaking posting the workers,
  • in the framework of temporary agency work:
    • by hiring out workers from a temporary employment agency or a placement agency operating in one Member State to a user employer in another Member State, including
    • in a situation in which the user employer to whom a temporary employment agency has hired out a temporary agency worker performs services for an entity in another country and refers such a worker to that country (a temporary employment agency in country X – a user employer in country X or Y – a customer in country Z).

Important! The employment relationship between an employer posting a worker and the posted worker continues throughout the period of posting and the posting is temporary in nature.

What criteria must be fulfilled by employers posting workers to Poland?

Not every arrival of a worker from another EU country in Poland for the purpose of carrying out a specific official task will qualify as posting in the framework of the provision of services.

In order for a specific situation to qualify as the posting of a worker to the territory of Poland, specific conditions must be met, concerning both a foreign employer and a worker referred to Poland.

In order to be regarded as an employer posting a worker to the territory of Poland, a foreign employer must be established and carry out substantial business activities in another Member State, from which he or she temporarily refers a worker to the territory of Poland:

  • to perform a contract concluded by that employer with an entity established in the territory of Poland
  • to a branch or an undertaking owned by a group of undertakings which includes that employer, established in the territory of Poland
  • as a temporary employment agency or a placement agency hiring out the worker to a user employer in Poland.

At the same time, the employer posting the worker cannot carry out purely internal management or administrative activities in that Member State.

The following criteria, in particular, are applied to determine whether an undertaking genuinely carries out substantial activities other than purely internal management or administrative activities:

  • the place where the undertaking has its registered office and administration, uses office space, pays taxes and social security contributions and, where applicable, has a professional licence or is registered with the chambers of commerce or professional bodies,
  • the place where posted workers are recruited and from which they are posted,
  • the law applicable to contracts concluded by the undertaking with its workers, on the one hand, and with its clients, on the other,
  • the place where the undertaking carries out substantial business activities and where it employs administrative staff,
  • the number of contracts performed and/or the size of turnover in the Member State of establishment, taking into account the specific situation of, inter alia, newly established undertakings and SMEs.

Important! If one or more of the above circumstances do not apply, this does not mean that the worker was not posted to the territory of Poland in the situation concerned. The National Labour Inspectorate adapts the assessment of those circumstances to each specific case, taking into account the specificities of the situation concerned.

See how checks are conducted to determine whether workers have been correctly posted to Poland and what such checks concern.

NEW INFORMATION! A foreign employment agency or placement agency which has hired out a temporary agency worker to a user employer in the same or another Member State, who then refers that worker to the territory of Poland in the framework of the services provided, is also an employer posting a worker.

In such a situation, it is the agency that is bound by the obligations of an employer posting a worker. In turn, the user employer who uses the temporary agency worker must notify the agency of the intention to refer that worker to Poland at least 15 working days before the planned referral.

See more about the conditions of employment of temporary agency workers posted by foreign temporary employment agencies or placement agencies.

When workers are workers posted to Poland

A worker posted to the territory of Poland is a worker employed in another Member State of the European Union or of the European Economic Area or in Switzerland and temporarily referred to Poland by the employer posting that worker:

  • to perform a contract concluded by the employer posting the worker with a contractor (in the framework of the services provided by that employer in Poland), on that employer’s own account and using his or her ‘own’ workers, who remain under that employer’s direction throughout the period when the work is carried out abroad
  • to an establishment or an undertaking in Poland, owned by a group of undertakings which also includes the undertaking posting the worker
  • in the framework of temporary agency work:
    • to work for a Polish user employer, or
    • in the framework of services provided by a foreign user employer for a Polish contractor in Poland, using persons hired out to that user employer by a temporary employment agency or a placement agency established in the same or another Member State of the European Union or of the European Economic Area or in Switzerland.

A posted worker may be a person who may be qualified as a worker under the Polish Labour Code, i.e. a person employed on the basis of an employment contract, appointment, election, designation or a cooperative employment contract.

Thus, if there are other types of legal ties between a person referred to Poland and the entity referring that person (e.g. a management contract, a civil law contract), that person is not regarded as a worker posted to the territory of Poland. If, however, the way in which work is carried out by a person referred to perform a specific task in the territory of Poland and the nature of this work, regardless of the type of contract concluded with a foreign entity, indicates that we are dealing with a worker within the meaning of the Polish Labour Code and the relationship between the parties bears the characteristics of an employment relationship, such a person will be regarded as a worker posted to the territory of Poland. The foreign entity referring that person to Poland will be required to fulfil all the obligations relating to the posting of a worker to the territory of Poland.

The National Labour Inspectorate verifies whether workers are posted workers, in particular whether they normally work in another Member State and only temporarily in Poland. In assessing this, the National Labour Inspectorate takes into account, inter alia, when posting starts, whether an employment relationship existed before posting and whether a worker returns to work for the employer who posted him or her after the end of the period of posting.

Important! If one or more of the above circumstances do not apply, this does not mean that the worker was not posted to the territory of Poland in the situation concerned. The National Labour Inspectorate adapts the assessment of those circumstances to each specific case, taking into account the specificities of the situation concerned.

See how checks are conducted to determine whether workers have been correctly posted to Poland and what such checks concern.  

PLEASE NOTE:
The applicable law is applied if an overall assessment made after examining whether a worker was correctly posted to the territory of Poland shows that an appearance that the worker was posted has been unlawfully created, but this cannot result in the worker being subject to conditions of employment less favourable than those applicable to workers posted to the territory of Poland. The application of the applicable law, governing the employment relationship between a foreign entity and the worker referred by that entity to Poland will be assessed in the light of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) and the conflict-of-law rules set out in that regulation.

Short-term posting

An employer posting a worker to the territory of Poland for 12 months must provide to the posted worker the minimum range of conditions of employment no less favourable than those applicable in Poland arising from the Labour Code and other provisions governing the rights and obligations of employers and workers, covering:

The period of 12 months during which an employer posting workers must provide to the posted workers the minimum range of conditions applicable to Polish workers may be extended to 18 months. To do so, you must submit a motivated notification to the National Labour Inspectorate.

See how to submit a motivated notification of the extension of the period of application of the minimum conditions of employment of a worker posted to the territory of Poland to the National Labour Inspectorate.

Important! During the period of posting to the territory of Poland, a worker temporarily posted to Poland is entitled to receive remuneration for work, including all its components, on the same terms as a worker employed by a Polish employer arising from the generally applicable laws. This also applies to an allowance for overtime.

The total gross remuneration, not individual components of remuneration, is taken into account when comparing remuneration paid to a posted worker by the employer posting that person and remuneration for work due under the Polish laws. An allowance for posting, in the part not paid in reimbursement of expenditure actually incurred in connection with the posting, such as travel, board and accommodation costs, is included in remuneration for work. If the law applicable to the employment relationship of a worker posted to the territory of Poland does not specify the part of the allowance for posting paid in reimbursement of expenditure actually incurred in connection with the posting, it is considered that the entire allowance is paid in reimbursement of this expenditure.

Collective agreements regarded as generally applicable across the country or for a specific industry are not concluded in Poland. Collective agreements are entered into on company level (for the employer concerned) and supra-company level (for several employers) and are binding on the parties to these agreements. The Polish system of collective labour agreements does not cover supra-company agreements which would be binding on all employers by operation of law. If a supra-company collective agreement has been concluded in a specific industry, then it is binding only on those undertakings that have entered into it. Employers who are not covered by an agreement cannot be required to provide to workers conditions of employment applicable to workers employed in a similar undertaking in which such an agreement applies.

Important! The provisions on the minimum conditions of employment to be provided to workers posted to Poland for up to 12 month by the employers posting these workers do not apply to employers who are temporary employment agencies or placement agencies and hire out temporary agency workers:

  • to user employers in the territory of Poland
  • to user employers in the territory of the same or another Member State who then temporarily refer these workers to the territory of Poland (in the framework of services provided for Polish entities).

Important! The conditions of employment guaranteed to temporary agency workers posted to the territory of Poland should be no less favourable than the conditions of employment of domestic temporary agency workers. The conditions of employment of temporary agency workers posted to the territory of Poland are set out in generally applicable laws on the performance of temporary agency work. The conditions of employment arising from collective agreements (concluded at company or supra-company level) and other collective arrangements based on laws, and rules and statutes setting out the rights and obligations of the parties to the employment relationship, which are not generally applicable, should also be provided to temporary agency workers posted to Poland, on the same terms as those guaranteed to domestic temporary agency workers. This applies to, inter alia, conditions of remuneration and conditions of accommodation provided to workers away from their regular place of work.

See more about the conditions of employment of temporary agency workers posted by foreign temporary employment agencies or placement agencies.

Important! If an employer posts a worker to the territory of Poland to carry out initial assembly or installation work in the position concerned for a period not exceeding 8 days over a year from the date on which the worker begins to work in this position, and this work is necessary in order to make use of supplied goods, that employer does not need to apply the conditions of employment concerning:

  • the duration of annual leave
  • remuneration for work.

However, that employer is still required to apply other conditions of employment which do not depend on the duration of the period of posting.

In addition, this exception does not apply to workers who carry out construction work or building maintenance work, covering in particular excavation, earthmoving, assembly and dismantling of prefabricated elements, fitting out or installation, renovation, dismantling, demolition, maintenance, and painting and cleaning work, for a period not exceeding 8 days over a year from the date on which the workers begin to work in the position concerned.

Long-term posting

An employer posting a worker to the territory of Poland for more than 12 months must provide to the posted worker conditions of employment no less favourable than those that Polish employers are required to provide under the Labour Code and other provisions governing workers’ rights and obligations, excluding:

  • the rules and procedure for the conclusion and termination of employment contracts
  • the rules and procedure for the use of non-competition clauses
  • occupational pension schemes and employee capital plans.

This means that a worker posted to the territory of Poland for more than 12 months must be treated on the same terms arising from the generally applicable laws as a worker employed by a Polish employer in respect of conditions of employment, and the employer posting the worker is bound by the Polish provisions on labour law to a broad extent, with the three exceptions indicated above.

Important! If an employer posting a worker has submitted a motivated notification to the National Labour Inspectorate, then the period in which that employer must apply the Polish generally applicable labour laws nearly in their entirety, will begin after 18 months.

Obligations of employers posting workers to Poland

Apart from providing appropriate working conditions (depending on the duration of posting and submission of a required motivated notification), any employer posting a worker must:

  • submit a declaration on the posting of a worker to the territory of Poland to the National Labour Inspectorate, at the latest on the day on which the services begin to be provided in Poland (on the day on which the worker posted to the territory of Poland begins work)

See how to submit a declaration on the posting of a worker to the territory of Poland.

  • notify the National Labour Inspectorate of any changes in data in this declaration,

See how to submit a notification of changes in data in a declaration on the posting of a worker to the territory of Poland.

  • designate a person responsible for contacts between the employer posting the worker and the National Labour Inspectorate, who will reside in Poland during the period of posting
  • provide, at the request of the National Labour Inspectorate, the details of a person authorised by the employer posting the worker to the territory of Poland to represent that employer during checks conducted by the Inspectorate (the full name, the address of the place of stay, and the company telephone number and email address).

Important! At a justified request of the National Labour Inspectorate, the person authorised to represent the employer posting the worker should be available in the territory of Poland during a check conducted by the Inspectorate.

PLEASE NOTE:
The obligations to designate a person responsible for contacts between an employer posting a worker and the National Labour Inspectorate and to designate, at the Inspectorate’s request, a person authorised by an employer posting a worker to the territory of Poland to represent that employer during checks do not apply to employers from third countries posting workers to the territory of Poland. This group of entities posting workers must designate a person to act on behalf of an employer posting a worker and represent that employer before, inter alia, Inspectorate authorities.

See more about the rules for the posting of workers from third countries.

  • keep documents relating to the employment of such a worker during the period of posting to the territory of Poland, in paper or electronic form, including:
    • a copy of the employment contract of the worker posted to the territory of Poland or another equivalent document certifying the conditions of employment in the framework of the employment relationship
    • documentation – originals or copies – on the duration of working time of the worker posted to the territory of Poland, specifying when the work began and ended and how many hours that person worked on the day concerned
    • documents – originals or copies – specifying the amount of remuneration of the worker posted to the territory of Poland to make it easy to identify the individual components of this remuneration, together with the amount of deductions made in accordance with the applicable law and proof of payment of this remuneration to the worker.

The documents do not need to be kept at the place where the posted worker works. It is important that they are kept in Poland at a place indicated in the declaration on the posting of a worker to the territory of Poland.

  • provide documents relating to the employment of the posted worker at the request of the National Labour Inspectorate, within the following deadlines:
    • 5 working days from the date of receipt of such a request, if the request was submitted during the period of posting to the territory of Poland,
    • 15 working days from the date of receipt of such a request, if the request was submitted up to 2 years after the posted worker completes his or her work in the territory of Poland.

The National Labour Inspectorate’s request may also cover translation of these documents into Polish.

Where to obtain additional information

The primary source of information on the rights and obligations relating to the posting of workers is the Act on the posting of workers in the framework of the provision of services, and the Biznes.gov.pl contact point.

The National Labour Inspectorate is responsible for providing information on the conditions of employment and the scope of their application to workers posted to the territory of Poland.

The following person has been designated by the National Labour Inspectorate to provide information on the posting of workers to the territory of Poland:

Dariusz Górski: Tel.: + 48 221113528, email: kancelaria@gip.pip.gov.pl
Department of Employment Legality (Departament Legalności Zatrudnienia)
Chief Labour Inspectorate (Główny Inspektorat Pracy)
ul. Barska 28/30
02-315 Warsaw
Fax:+ 48 223918214

Frequently asked questions

1. Can the declaration on the posting of a worker to the territory of the Republic of Poland be submitted by a proxy?

There is a reference to the power of proxy in the form of the declaration on the posting of a worker to the territory of the Republic of Poland. Appointing a proxy is not mandatory. The posting employer may also perform certain activities related to the posting of workers to the territory of the Republic of Poland through a proxy, particularly including providing the National Labour Inspectorate with the declaration on the posting of a worker to the territory of the Republic of Poland.

In order to effectively act on behalf of a foreign employer, the proxy should have the power:

  • to perform a specific activity on behalf of the principal, e.g. submitting a declaration on the posting of a worker, or
  • to represent the employer before Polish state authorities, including submitting declarations to such authorities.

Moreover – pursuant to Article 33 § 2 of the Code of Administrative Procedure, a proxy should be appointed in writing, in the form of an electronic document or entered into the protocol. The legislation does not define any specific form of the document for activities such as submitting the declaration on the posting of a worker to the territory of the Republic of Poland or the notification of a change in the data covered by the declaration. Pursuant to Article 33 § 1 of the Code of Administrative Procedure, only a natural person can be appointed a proxy (therefore, it is not possible to appoint a company or a legal person as proxy to perform specific activities on behalf of the posting employer). Pursuant to Article 33 § 3 of the Code of Administrative Procedure, the proxy is obliged to attach the original or an officially certified copy of procuration to the files (e.g. certified as a true copy by the authority conducting the proceedings). The appointment of a proxy is subject to a fee.

Pursuant to Article 1(1)(2) of the Act of 16 November 2006 on stamp duty (Journal of Laws of 2018, item 1044, as amended), such a fee is charged inter alia for submitting a document confirming the granting of a power of attorney or proxy, or a  certified copy, an excerpt or copy thereof in a public administration case or in court proceedings. Pursuant to the provisions of Article 12(1)(2)(2) of the Act, the tax authority competent in stamp duty matters is the mayor of the municipality (town, city) The tax authority with competent jurisdiction over stamp duty for the submission of the document confirming the appointment of a proxy shall be the tax authority competent for the place where such  document was submitted.

In the light of the above and the fact that the declaration of intention to post a worker, along with the power of proxy, should be submitted to the Chief Labour Inspectorate (ul. Barska 28/30, 02–315 Warszawa), the stamp duty should be paid to the bank account of the Office of the Capital City of Warsaw. The account number for stamp duty payments is available on the website of the above-mentioned Office: 21 1030 1508 0000 0005 5000 0070.

Pursuant to the annex to the Act of 16 November 2006 on stamp duty with the list of items that are subject to stamp duty, rates and exemptions, the amount of the fee for submitting a document confirming the granting of a power of attorney or proxy, and a certified copy, excerpt or copy thereof – for each power of proxy – amounts to PLN 17.

Therefore, if the posting employer would like to perform certain activities through a proxy (eg. submit a declaration on the posting of a worker to the territory of the Republic of Poland, the power of proxy for the person acting on behalf of the posting employer should be provided to the National Labour Inspectorate together with the declaration document itself, indicating the scope of his authorisation and proof of payment of the fee for the appointment of a proxy.

2. Does the worker posted to work temporarily in Poland have to undergo preventive medical checks carried out in Poland in order to determine their ability to work?

An employer posting a worker to the territory of the Republic of Poland must provide the posted worker with employment conditions in Poland no less favourable than those of the Labour Code and other legislation governing the rights and obligations of workers. Minimum employment conditions also include occupational health and safety matters in general. Therefore, they include all provisions of Section X of the Labour Code and the implementing rules (regulations) relating to the performance of work in safe and risk-free conditions in the working environment. Therefore, preventive medical examinations of workers posted to work in Poland should in particular meet the minimum requirements laid down in Polish legislation, i.e. in Section X of the Labour Code and in the Regulation of the Minister for Health and Social Care of 30 May 1996 on the performance of medical examinations for workers, the scope of preventive health care for workers, and medical certificates issued for the purposes provided for in the Labour Code.

Therefore, in the case of providing employees posted to Poland with medical checks the scope of which corresponds at least with the requirements of Polish law, it generally seems sufficient that the abovementioned workers hold documents confirming the completion of such checks in the posting country. Article 4(1) of the  Act of 10 June 2016 on the posting of workers in the framework of the provision of services refers to the obligation to ensure conditions (in terms of occupational health and safety) no less favourable than those applicable under Polish law. If the posting country provides more favourable or comparable (equally favourable) conditions as those in force in Poland, they are considered to meet the statutory requirement. This interpretation is also supported by the fact that the provisions on occupational health and safety in force in individual EU Member States are harmonised through the implementation of directives regulating the indicated area, in particular the Framework Directive 89/391/EEC on the introduction of measures to encourage improvements in the safety and health of workers at work.

In each case, it is, therefore, necessary to compare the scope of medical check-ups and their frequency in the posting country and in the country of the posting. The employer shall always assess whether the medical check-ups of employees posted to work on the territory of the Republic of Poland carried out in another country meet the standards set out in Polish legislation. If it is deemed that the medical examinations performed abroad do not meet the requirements of Polish regulations – the employer should refer the employee for appropriate supplementary checks. The guiding principle should be the necessity to provide the worker posted to work on the territory of the Republic of Poland with an appropriate level of protection provided for by Polish legislation.

3. Does the worker posted to work on the territory of the Republic of Poland have to receive training in Poland in the field of occupational health and safety?

With regard to training in the field of occupational health and safety, remember that, in accordance with Article 2373 § 1 of the Labour Code, the worker shall not be allowed to perform any work for which he or she does not have the required qualifications, skills or sufficient knowledge in the field of occupational health and safety. The employer is required to provide training in the field of occupational safety and health to the employees before admitting them to work as well as to conduct periodic training in this regard – Article 2373 § 2 sentence 1 of the Labour Code.

The Regulation of the Minister for Labour of 27 July 2004 on training in the field of occupational health and safety (Journal of Laws of 2004, No 180, item 1860, as amended) complements the provisions of the Labour Code in this respect, obliging the employer to provide the worker with training relevant for the type of work performed, including providing them with information and instructions regarding the position held or the work performed, including providing them with information and instructions regarding the position held or the work performed. The employee confirms the receipt of this information upon signature. At the same time, the provisions of the cited regulation indicate the objectives of the training, which are:

  • getting acquainted with the factors of the working environment that may pose a threat to the safety and health of employees at work, and with appropriate preventive measures and actions
  • learning about the provisions and principles of occupational health and safety to the extent necessary to perform work in the workplace and in a specific position, as well as work-related duties and responsibilities in the field of occupational health and safety
  • acquiring the ability to perform work in a way ensuring safety for yourself and other people, to proceed in emergency situations and to provide assistance to a person who has sustained an accident.

The regulation also specifies the forms of training in the field of occupational health and safety (initial, periodic). The initial training includes: general instructions and on-the-job training. Pursuant to Section 9 of the cited regulation, the general training should provide the participants with the basic health and safety provisions of Labour Code, collective agreements or work regulations, with the provisions and principles of health and safety at work in a given workplace and first aid principles in the event of an accident. On-the-job training should ensure that training participants become familiar with the factors of the working environment at their workstations and the occupational risk related to the work performed, methods of protection against threats that may be caused by those factors, and the safe work methods at their workstations. Periodic training is aimed at updating and consolidating knowledge and skills in the field of occupational health and safety, and familiarising training participants with new technical and organisational solutions in this field. The training in the field of occupational health and safety should be carried out by authorised persons, in accordance with appropriate programs. Its completion should be properly documented.

A proper assessment of the fulfilment of these obligations requires a comparison of the regulations in force in this respect in the state of the posting employer with the provisions of Polish law referred to above. The labour inspector will have the right to evaluate the documentation kept in this regard in the home country. Regardless of the assessment, in the opinion of the Employment Legality Department, taking into account the purpose of the training, which is to ensure the protection of the employee against risks in the work process – in the workplace, including the acquisition of practical skills to perform work in a safe manner, initial training in the form of on-the-job training is not possible outside the workplace of the employee posted to the territory of the Republic of Poland. On-the-job training includes familiarising the worker with the technological process, machines and devices in use as well as the rules of conduct in case of an emergency. The workplace means not only the workstation but also its surroundings. It is not possible to create identical working environment conditions – e.g. in the posting company and the company to which the worker is posted.

This justifies the need for on-the-job training in the workplace in the country of the posting, i.e. in Poland. Documentation of the conducted training should comply with the standards imposed in this respect by Polish labour law provisions, although it does not have to be kept according to the template specified in the applicable national regulations.

4. What are the duties of the posting employer (intermediary in contacts, person representing the posting entity during the inspection, person acting on behalf of the posting employer)?

The employer posting a worker to the territory of the Republic of Poland shall appoint a person authorised to act as an intermediary in contacts with the National Labour Inspectorate and obliged to send documents or notifications. The Act requires that such a person stay on the territory of the Republic of Poland during the posting period. The Act does not indicate any additional requirements for the ‘intermediary’ in contacts between the National Labour Inspectorate authorities and the posting company. Therefore, the person may also be one of the posted workers. It also does not require any specific form of authorisation. The data of this person – including their name, surname, address, telephone number and business e-mail address – should be included in the declaration on the posting of workers, submitted to the National Labour Inspectorate no later than on the date of commencement of the service on the territory of the Republic of Poland.

The posting company is obliged to notify the National Labour Inspectorate of any change concerning the data of this person – no later than within 7 working days from the date of the change. It should be assumed that the person indicated in the declaration as the intermediary in contacts between the posting employer and the National Labour Inspectorate has been authorised by a foreign entity to perform this function. Additionally, at the request of the National Labour Inspectorate, the person who acts as the intermediary in contacts with the employer posting the worker to the territory of the Republic of Poland is obliged to immediately provide the National Labour Inspectorate with the data of the person authorised by the posting employer to represent it during the labour inspection, including their name and surname, address, telephone number and business e-mail address. At a justified request of the National Labour Inspectorate, in relation to the inspection, the person should be available on the territory of the Republic of Poland. In relation to the inspection, the labour inspector authorised by the National Labour Inspectorate has the right to request access to the document confirming the authorisation of a given person by the posting employer to represent it during the inspection.

The Act of 10 June 2016  on the posting of workers in the framework of the provision of services does not refer to the scope of the ‘intermediary’s’ authorisation. They act as a ‘liaison’ between the labour inspector and the posting company, through whom it is possible to forward the request for information at the disposal of the posting entity (prior to the inspection), request to indicate the person representing the foreign entity in the inspection by the National Labour Inspectorate (if it is recognised that certain arrangements require an inspection by the National Labour Inspectorate). In particular, the intermediary in contacts with the National Labour Inspectorate is not authorised to be a party to the control procedure conducted by the labour inspector (unless they were also appointed as a person authorised to represent the posting employer before the control authorities under a separate authorisation), they are not the addressee of legal measures issued by the labour inspector (orders, requests in the petition, etc.).

The ‘intermediary’ is not responsible for any failure to comply with other obligations under the Act on the Posting of Workers. They are also not responsible for any failure to provide posted workers with employment conditions no less favourable as those specified in Polish law (to the extent indicated in Article 4(2), Article 4b and Article 4d of the Act on the posting of workers in the framework of the provision of services), which, subject to Polish law, are offenses against the rights of people performing gainful work (indicated inter alia in Article 282 § 1 items 1 and 2, Article 283 of the Labour Code). The responsibility of the ‘intermediary’ in contacts with the National Labour Inspectorate may be related to hindering or preventing the labour inspection activities by not fulfilling the intermediary's function (failure to forward the request addressed by the labour inspector to the posting entity, failure to provide the data of the person representing the posting employer during the inspection, etc.), which may expose them to liability for the offence as indicated in Article 283 § 2 item 8 of the Labour Code and, in extreme cases, may result in submitting the notification to the law enforcement authorities of a suspected criminal offence subject to Article 225 § 2 of the Criminal Code, punishable by imprisonment for up to 3 years.
Act of 10 June 2016 on the posting of workers in the framework of the provision of services also applies to employers from the so-called third countries posting their employees to work temporarily in Poland. Article 26 of this Act stipulates that its provisions shall apply accordingly to this group of employers, subject to (i.e. in consideration of) provisions of Article 88(1)(3) and (4), Article 88c(6)(2) and (3) as well as Article 88c(9) of the Act of 20 April 2004 on employment promotion and labour market institutions and Article 139a(3) of the Act 12 December 2013 on foreigners. Therefore, the Act on the posting of workers does not remove the obligation to comply with, the legality of foreigners’ stay and work on the territory of the Republic of Poland.

A foreign posting employer is obliged to indicate a person residing on the territory of the Republic of Poland, holding documents confirming the fulfilment of the obligations imposed on the posting entity, acting on behalf of the employer and authorised to represent it, e.g. before the authorities referred to in Article 88f(3) of the Act on employment promotion and labour market institutions, including the authorities of the National Labour Inspectorate (Article 88c(6)(3) of the cited Act).

Therefore, it should be assumed that an employer from a third country, which is obliged to indicate such a person, is not obliged to appoint an intermediary or a person authorised by the posting employer to represent it during the labour inspection, i.e. persons mentioned in Article 24(1) and (2) of the Act on the posting of workers in the framework of the provision of services because, under the Act on employment promotion and labour market institutions, it must appoint a person acting on its behalf – as referred to in Article 88c(3)(3) of the Act. The form of the declaration on the posting of a worker to the territory of the Republic of Poland includes the indication of the person, along with the instruction that this applies to an entrepreneur posting an employee to work in Poland with its registered office in the so-called third country.

5. What are the duties of the posting employer (documents required by the posting employer)?

The posting employer is obliged to keep the following documents on the territory of Poland with regard to the worker posted to work temporarily in our country, i.e.

  • copy of the employment contract of the worker posted to the territory of Poland or another equivalent document certifying the conditions of employment in the framework of the employment relationship
  • working time documentation of the worker posted to the territory of Poland, specifying when the work began and ended and how many hours that person worked on the day concerned, or copy thereof
  • documents specifying the amount of remunerationof the worker posted to the territory of Poland together with the amount of deductions made in accordance with the applicable law and proof of payment of this remuneration to the worker, or copy thereof.

These documents should be kept on the territory of the Republic of Poland in paper or electronic form. At the same time, the Act does not specify any additional requirements regarding the place they should be kept, in particular, they do not have to be located in the workplace of the worker posted to Poland. It is only important to keep them in our country during the posting period and, at the request of the labour inspector issue them in connection with the conducted control, deliver them to the inspector (along with a translation – if the inspector requests it) – no later than within 5 working days from the date of receipt of such a request.

Please note that the obligation to store documents in Poland applies only to cases in which the posting process is ongoing. After the end of the posting period, the above-mentioned documents do not have to be located in Poland. However, since the labour inspector, who has the right to control the correctness of the posting process also within two years from its completion, may request the submission of the above-mentioned documents for inspection purposes also when the workers previously posted to Poland are not present in our country and the delegation process is finished. In such a situation, the legislator decided that the inspecting authority must be provided with such documents no later than within 15 working days from the date of receipt of the request. In such a case, the request of the labour inspector may also include a request for translation of certain documents into Polish. The Act does not require that the translation of documents covering both the duration of the posting and the completed posting be done by a sworn translator.

During the inspection, the labour inspector has the right to demand, from the posting employer or a person authorised by it to represent it during the inspection, also other documents related to the posting of the worker to the territory of the Republic of Poland except for those that must be kept in Poland and that will allow them to assess whether the process of posting a worker to work in Poland is carried out correctly and in accordance with the law.

6. Are there situations when submitting the declaration on the posting a worker to the territory of the Poland is not required?

Subject to Article 24(3) of the Act of 10 June 2016 on the posting of workers in the framework of the provision of services, the employer posting the worker to the territory of the Republic of Poland is obliged to notify the National Labour Inspectorate about the fact of posting the worker to work temporarily in Poland by submitting a declaration on the posting a worker to the territory of the Republic of Poland.

The declaration should contain the following information:

  • the identification details of the employer posting workers (the name, the registered office (address) and the company telephone number and email address; and the place of residence (address) and the company telephone number and email address for an employer who is a natural person; as well as the Tax Identification Number (NIP) or the identification number assigned in the Member State of establishment for tax or insurance purposes)
  • the scheduled number of workers posted to the territory of Poland, together with such details as their full names, dates of birth and nationalities
  • the scheduled dates of the beginning and end of the posting of the workers to the territory of Poland
  • the addresses of the places where the posted workers will work in the territory of Poland
  • the type of services justifying the posting of the workers to the territory of Poland
  • the details of the person acting as an intermediary in contacts between the National Labour Inspectorate and the employer posting the workers, covering that person’s full name, the address of the place of stay, and the company telephone number and email address
  • the place where the documents referred to in Article 25(1) of the Act are kept in Poland.

If a worker is posted to a user employer by a foreign temporary employment agency or placement agency, the following details of this user employer should also be provided in the declaration:

  • the name
  • the registered office (address) and the company telephone number and email address; and the place of residence (address) and the company telephone number and email address for an employer who is a natural person
  • the Tax Identification Number (NIP) or the identification number assigned in the Member State of establishment for tax or insurance purposes.

This applies also to user employers from other Member States who temporarily refer to the territory of Poland workers previously referred to them by a temporary employment agency or placement agency.

The declaration should be submitted to the National Labour Inspectorate no later than on the day the provision of the service is commenced on the territory of the Republic of Poland, interpreted as the first day of performing work in Poland by a posted worker. The declaration should be submitted in writing, in Polish or English, in paper or electronic form. In the case of submitting the above-mentioned electronic document, the declarations must be sent to the National Labour Inspectorate using a trusted profile or qualified electronic signature (submitting the declaration, e.g. in pdf form as an attachment to the e-mail, does not meet the requirements of the act and it is not honoured). The service regarding document submission (both in paper and electronic form) is available on the Polish official website with information on the posting of workers, operated on the information website for entrepreneurs:
https://www.biznes.gov.pl/en/firma/doing-business-in-poland/posting-of-workers-to-poland/proc_1328-oswiadczenie-o-delegowaniu-pracownika.

The Act does not provide for any exceptions to the obligation to submit the declaration on the posting of a worker. Each case of posting a worker to the territory of the Republic of Poland requires notifying to the National Posting Inspectorate of the event by submitting a declaration on the posting of a worker to the territory of the Republic of Poland. The obligation to submit the declaration on the posting of a worker to the territory of the Republic of Poland is not affected by the period for which the worker is posted to work in Poland (Article 5 of the Act on the posting of workers in the framework of the provision of services indicates only exceptions related to the lack of the obligation to provide the worker posted to work in Poland with certain employment conditions in the case of posting the worker for a period not longer than 8 days a year, starting from the date of commencement of work in a given position, in order to perform preliminary assembly works or installations, provided for in the contract concluded by the posting employer with the entity operating on the territory of the Republic of Poland and, additionally, only when the performance of the work is necessary to use the delivered products) or the nature of the work performed.

Thus, even a short-term arrival of the worker to Poland to perform work as part of the posting, in connection with the provision of services provided by his/her home employer in our country, requires this obligation (as well as other obligations specified in Chapter 5 of the Act on the posting of workers in the framework of the provision of services).
It should be emphasised that the obligation to submit the declaration on the posting of a worker to the territory of the Republic of Poland to the National Labour Inspectorate applies only to cases of posting the worker to work in Poland, classified as posting within the meaning of the provisions of the Act of 10 June 2016 on the posting of workers in the framework of provision of services and Directive 96/71/EC of the European Parliament and of the Council (as amended by Directive 2018/957).

The Polish Act on the posting of workers in the framework of the provision of services, in accordance with Directive 96/71/EC concerning the posting of workers in the framework of the provision of services, regulates the following situations when an employer posts an employee to work in Poland:

  • in connection with the performance of the contract concluded by the employer in question with an entity operating in Poland
  • to a branch office or an undertaking owned by a group of undertakings which includes that employer, established on the territory of Poland
  • for temporary work performed for the Polish user employer, including the sending of the worker to work in Poland by the foreign user employer as part of the services provided by it to the Polish entity.

Therefore, remember that not every arrival of a worker to perform a specific task in Poland is qualified as a posting within the meaning of the above-mentioned provisions.

The Practical Guide on Posting, issued by the European Commission, indicates that workers who are sent temporarily to work in another Member State, but not as part of the services provided by their employer, are not posted workers. This applies, for example, to workers on business trips (when no service is provided), attending conferences, meetings, fairs, training sessions, etc. Such workers are not covered by the directives on the posting of workers and the administrative requirements and control measures set out in Article 9 of Directive 2014/67/EU, and the national provisions issued on their basis that shall not apply to them.

It should be remembered that there is no definition of a business trip at the European level. If the worker who has been posted to work in Poland as part of a business trip meets the conditions for being considered a posted worker on the territory of the Republic of Poland (i.e. they will be directed to work on the territory of the Republic of Poland under the conditions appropriate for the posting of workers specified in Directive 96/71/EC and the Act on the posting of workers in the framework of the provision of services), from a foreign employer directing them to perform the above-mentioned tasks in our country, the obligations specified in the provisions of the Act on the posting of workers as part of providing services will be enforced, regardless of the manner used by this employer to send the worker to work on the territory of the Republic of Poland. In particular, the use of the legal structure of a business trip by a foreign employer cannot be aimed at circumventing the provisions on the posting of workers and the obligations imposed by Polish national law.

7. Is it necessary to provide the national labour inspectorate with the notification of a data change covered by the declaration on the posting of a worker on the territory of Poland, if it was introduced before the date the obligation was imposed?

Provision of Article 24(5) of the Act of 10 June 2016 on the posting of workers in the framework of the provision of services amended on 4 September 2020 requires that the employer posting a worker to the territory of the Republic of Poland notify the National Labour Inspectorate of any change in the information in the declaration referred to in Article 24(3) and (4) of the Act within 7 working days from the date the above-mentioned change is introduced. Thus, compared to the previous wording of this provision, the obligation imposed on the foreign employer to update information on the posting of a worker to the territory of the Republic of Poland was extended to all circumstances covered by the document submitted to the National Labour Inspectorate. The need to notify the National Labour Inspectorate of the change will also apply, e.g. to a situation in which, under the same agreement concluded with a Polish counterparty, the foreign entity assigns another worker (than the one indicated in the statement on the posting of a worker) to perform work temporarily on the territory of the Republic of Poland, e.g. as part of the exchange or supplementation of staff, or if the expected start or end date of the posting changes. At the same time, the provision of Article 7(1) of the Act of 24 July 2020 on the amendment to the Act on the posting of workers in the framework of the provision of services and some other acts stipulate that the posting of a worker to the territory of the Republic of Poland is subject to the provisions of the Act of 10 June 2016 on the posting of workers in the framework of the provision of services in the wording provided for in the Act (i.e. the Amending Law).

The obligation to submit a notification of any change in the data in the declaration applies to situations that have occurred from the date of entry into force of the above-mentioned amendment, i.e. from 4 September 2020. Only in such a case, the employer posting a worker to the territory of the Republic of Poland has the option of fulfilling the obligation imposed on them to provide an appropriate notification within the required period of 7 working days from the date the above-mentioned change was introduced. The adoption of a different assumption would mean the retroactivity of the provision and the obligation of the employer posting a worker to work in Poland to retroactively provide the notification of changes which previously did not require the notification, and in a situation where the 7-day time limit for such notification has already expired, which apparently was not the intention of the legislator.
Only such an interpretation of the above-mentioned provision enables sanctioning the failure of the employer posting the worker to the territory of the Republic of Poland to provide a notification of the change in the data included in the declaration or to submit such notification in violation of the required time limit, which is an offense specified in Article 27(1)(3) of the Act of 10 June 2016 on the posting of workers in the framework of the provision of services. Therefore, in the case where, as part of the same service provided to a Polish counterparty, the replacement or supplementation of the posted personnel took place before the entry into force of the provisions of the amended Act on the posting of workers in the framework of the provision of  services, in the opinion of the National Labour Inspectorate there is no obligation to notify the National Labour Inspectorate of such an event in the form of a notification of the change in the data covered by the declaration referred to in Article 24(3) of the Act. If the change in the posting period, compared to the previously declared in the declaration, was introduced after 4 September 2020 (entry into force of the amendment), e.g. the period of posting has been extended or shortened compared to the date previously indicated in the declaration as the expected date of the posting completion, it is necessary to report such a change by providing the National Labour Inspectorate with the notification of the change in the data included in the declaration.

8. Does the employer posting the worker to Poland have to cover the costs of business trips during the posting period?

The provisions of the Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services extended the catalogue of employment conditions that the employer posting a worker to the territory of a given state is obliged to provide to that worker, subject to generally applicable provisions (including collective agreements (arbitration awards) recognised as generally applicable), including rates of allowances or reimbursement of expenses to cover food and accommodation costs of workers posted from home for professional reasons.

In the Polish Act of 10 June 2016 on the posting of workers in the framework of the provision of services, the abovementioned provision was reflected in the amended provision of Article 4(2) which, among the terms of employment that the foreign posting employer is obliged to provide to the posted worker in Poland, also includes the amounts due to cover the costs related to the business trip from the place of work on the territory of the Republic of Poland to which the employee is posted to another place of work or outside the territory of the Republic of Poland.

This means that, in a situation where the worker posted to a specific place of work on the territory of the Republic of Poland is on a business trip to another place of work in Poland or abroad, the posting employer must reimburse them for the costs related to the above mentioned trip on terms no less favourable than those provided in generally applicable law, i.e. pursuant to Article 775 of the Labour Code and Regulation of the Minister for Labour and Social Policy of 29 January 2013 on amounts due to employees of state or local government budgetary units for business travel.

The actions of the employer which affects the worker's situation in this respect in a more favourable manner than it results from the cited legislation, for example based on relevant provisions or internal company rules (regulations, statutes, collective agreements, etc.) in force in the sending country, does not constitute a violation of law in force. The abovementioned solution is a consequence of Article 3(7) of Directive 96/71/EC which stipulates that there are no obstacles to the application of more favourable employment conditions than guaranteed by the provisions of the law of the host country in the case of posting a worker for temporary work on the territory of that country.

9. Posting a worker to the polish territory vs. business trip. do the obligations imposed on the employer posting a worker to the territory of Poland have to be fulfilled in the case of ordering the worker to travel to Poland on business?

Temporary posting to the territory of another country for the purpose of providing services should not be confused with a foreign business trip. These are basically two separate institutions related to the ‘transfer’ of a worker away from their permanent place of work, which may coexist only under certain conditions.

In the light of the provisions of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, a posted worker is a worker (as defined by the law of the host country) who works for a limited period on the territory of a Member State other than the one in which they normally work.

Pursuant to Article 3 of the Directive 96/71/EC, posted workers, carrying out work temporarily abroad, should be provided with certain employment conditions no less favourable than those arising from generally applicable provisions (including collective agreements or arbitration awards which have been declared universally applicable) in the country of the posting.

The Practical Guide on Posting, issued by the European Commission, indicates that workers who are sent temporarily to work in another Member State, but not as part of the services provided by their employer, are not posted workers. This applies, for example, to workers on business trips (when no service is provided), attending conferences, meetings, fairs, training sessions, etc. Such workers are not covered by the directives on the posting of workers and the administrative requirements and control measures set out in Article 9 of Directive 2014/67/EU, and the national provisions issued on their basis that shall not apply to them.

At the EU level, the concept of a ‘business trip’ is not defined, so it is up to the Member States to decide whether and how to regulate such cases. Depending on the internal regulations of individual Member States, posting may or may not take the form of a business trip. In such case, the assessment of a given factual situation should be made, e.g. through the perspective of the definition of a business trip in the legislation of the sending country. At the same time, it should be emphasised that wherever the ‘posting conditions’ are fulfilled, the transfer of an employee to work in Poland will be considered as such, regardless of the manner in which the employee was assigned to carry out the work by their employer.

 

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