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As of 18 June 2016, the new provisions on posting of employees in the framework of the provision of services contained in the Act of 10 June 2016 on the posting of employees in the framework of the provision of services (the “Act”) apply. The Act introduces a number of obligations, mostly for employers who post their employees to Poland.
New provisions set out employment conditions of employees posted to work in Poland. An employer posting employees to work in Poland is obliged to provide them with employment conditions at least at the level applicable in Poland, as regards to: i) standards and number of working hours; ii) daily and weekly rest periods; iii) amount of leave; iv) minimum wage; v) overtime remuneration and allowance; vi) occupational safety and health; vii) protection of pregnant employees and employees on maternity leave; and viii) the principle of equal treatment and prohibition of discrimination in employment.
Therefore, employers wishing to post their employees to Poland should become acquainted with the employment conditions applied in Poland and should take them into account when concluding agreements with posted employees.
In some cases, the posting employer is exempt from the obligation to provide the minimum employment conditions as described above. This exemption applies to employees who perform preliminary assembly or installation work for a period not exceeding eight days in a calendar year. It does not, however, apply to employees performing work related to building construction or maintenance.
As for employees in the building sector, the Act provides joint and several liability of the contractor entrusting the performance of works and the posting employer. The joint and several liability covers the outstanding minimum remuneration, as well as the remuneration and allowance for overtime work.
The Act imposes a number of new obligations, mainly on employers who post their employees to Poland (the “Posting Employer”). The key obligations include the following:
(A) designating the contact person: The Posting Employer is obliged to designate a person entitled to: i) act as an intermediary in relations with the National Labour Inspectorate (Państwowa Inspekcja Pracy) (“PIP”); ii) send and receive documents and notifications; and iii) represent the Posting Employer during inspections carried out by the PIP. The contact person must stay in Poland during the period when the employee is posted.
(B) submitting a declaration, including information necessary to carry out inspections: The Posting Employer is obliged to submit to the PIP a declaration (in written or electronic form), including information necessary to carry out the workplace inspection, at the latest on the day the posted employee commences work. The declaration must include the Posting Employer’s identification data, the estimated number of employees posted to Poland, as well as their identification data, the estimated start and end dates of the posting, the workplace address of the posted employees, the nature of the work performed by the posted employees, the contact person’s identification data, and the place where the documents concerning the posted employees are stored.
(C) storing the posted employee’s documents: During the posting period, the Posting Employer is obliged to store the following documents of the posted employee (in written or electronic form) on Polish territory: i) a copy of the employment agreement; ii) documentation concerning working time of the posted employee; iii) documents concerning the posted employee’s remuneration, including deductions and records of payment.
(D) providing documents upon the request of the PIP: Upon the PIP’s request, the Posting Employer is obliged to submit the documents mentioned in item C above (and their translation into Polish) for inspection, not later than five business days after receiving the PIP’s request.
Moreover, within two years after the posted employee completed his or her work, the employer is obliged to submit to PIP documents specified in item C above, within 15 days of receiving the PIP’s request.
The Posting Employer – or a person acting on its behalf – who fails to fulfill the obligations as specified in the Act, is subject to a fine of PLN 1,000 to PLN 30,000 (approx EUR 250 – 7,500).
Furthermore, if the PIP has any doubt about whether an employee was actually posted in a given case, it is entitled to verify whether the Posting Employer in fact carries out significant activity in its country of establishment and whether the posted employee performs work in Poland only temporarily.
If the PIP finds that the posted employees were not provided in their place of work with the minimum employment conditions under the Polish Labour Code, it is entitled to impose sanctions on the Posting Employers in the form of administrative decisions (bans or orders), based on which the Posting Employer will be obliged to remedy the irregularities.
The new Act on posting of employees imposed a number of obligations on foreign entities posting their employees in Poland, in particular with respect to minimum employment conditions, maintaining employee records and storing them on Polish territory or designating a PIP contact person. The Act also authorised the PIP to carry out inspections of the adequacy of the posting of employees.
author: Barbara Jóźwik