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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.

Obligations of employers posting workers to Poland

Conditions of employment of workers posted for 12 months

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.

Conditions of employment of workers posted for a period exceeding 12 months

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.

Formal obligations

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

 

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