Poland is becoming an increasingly attractive country for foreign investors year after year. Currently, many entities from both the EU and outside the Union have branches in our country. This trend has consequences in transferring foreign employees to Poland. Not only managers but also other specialists are being delegated to our country. No matter if such a delegation is temporary or permanent, foreigners must have a regulated residence situation. Moreover, their employment must comply with Polish regulations. In this article, we focus on the legalization of employment when it comes to delegating foreign employees to Poland.
Delegating foreign employees from Switzerland, EU and EEA states
The freedom of movement of workers within EU is one of the most important rules of its functioning. It is guaranteed by Art. 45 of the Treaty on the European Union. Its use is possible only by eliminating any discrimination based on the nationality of workers in the Member States. The EU rules on delegating foreign employees provide protection for these workers. Obligatory provisions on working conditions including health and safety at work ensure that. In Polish law, this issue is regulated by the Act of 10th of June 2016 on posting of workers in the framework of the provision of services (further: the Act).
Delegating in the context of providing services is a situation in which a company with its registered office in an EU Member State, EEA or Switzerland provides services outside the borders of that country and directs its employees to perform work temporarily in the place where these services are provided. This type of delegation may occur, for example:
- to fulfil a contract with a foreign contractor. A delegating entity performs the contract on its own, using the services of its own employees. The employees remain under its supervision throughout the entire period of work abroad.
- when workers are directed to a company from another EU member state, which belongs to the same group of enterprises as the delegating entity.
- as part of temporary work.
Delegating foreign employees from Switzerland, the EU and other EEA states. What are the responsibilities of an employer?
A foreign employer who delegates an employee to temporarily work in Poland has certain obligations. Chapter 5 of the Act identifies them. They include:
- the obligation to appoint a person to represent a delegating employer in The National Labour Inspectorate (Polish: PIP);
- the obligation to submit a statement of delegation to work in Poland to PIP. It should be submitted no later than on the day the service begins;
- the obligation to keep in Poland documentation on the employment of the foreigner;
- the obligation to inform PIP of any changes of data provided in the statement of delegation.
The legal relation between a foreign worker and his employer remains valid during delegation. The law applicable to employment relationship still regulates the obligations of the parties to the contract. A foreign employer must also observe regulations of the Polish law to a certain extent.
Delegating employees from third countries
A delegating employer having its headquarter in a third country also must follow these regulations. Such employers must adhere to the law connected with delegating foreign employees. They must also respect the rules concerning the legality of employment in Poland.
Work permits and legality of stay
Foreigners from outside the EU, EEA and Switzerland delegated to Poland should have a type C, D or E work permit.
- Work permit type C
It should be obtained by a foreigner delegated to work temporarily in Poland. This type of work permit applies to workers hired by an entity located outside UE, EEA or Switzerland. It concerns foreign employees delegated for a period longer than 30 days to a branch or facility of a foreign entity or an entity related to a foreign employer.
- Work permit type D
It is granted to a third-country national delegated to work in Poland. In this case, the service must be of a temporary and occasional nature. Thus, it concerns so-called ‘export services’.
- Work permit type E
It concerns a third-country national delegated to Poland for period exceeding 30 days during the subsequent 6 months. A foreigner must be delegated for reasons other than those specified in work permit type C or D.
There is a significant exception to the obligation of obtaining a work permit. It concerns 5 countries: Armenia, Belarus, Georgia, Moldova and Ukraine. Citizens of these countries are allowed to work in Poland based on declarations of entrusting work. Such declarations are entered into the register maintained by the poviat labour office. What is more, current regulations allow for hiring all Ukrainians in a special mode. This is a response to the current situation in Ukraine. The special procedure involves notification of the assignment of work to a Ukrainian citizen.
A foreigner must also legalise his stay in Poland. Based on the issued permit, he can apply for the appropriate visa or a temporary residence permit. The latter one is for the duration of the delegation, and no longer than 3 years.
Delegating foreign employees – what must the employer remember?
Delegated employees from outside the EU must have working conditions no worse than the ones specified in Polish labour law. The foreign employer must appoint a representative in Poland. This person should collect basic employment documents. They must allow for verification that the aforementioned conditions are respected.
Summary
The discussed subject is quite complicated. Yet, it is recommended to approach the duties of a delegating employer meticulously. The National Labour Inspectorate may control the employment of delegated workers. For this purpose, it may require explanations from foreign employers. It can as well verify the correctness of delegation. This concerns primarily the scope of activity of the delegating employer. It may also concern the temporariness of the delegation. Obviously, compliance with regulations on minimum employment conditions for delegated workers may be also subject to verification. In the event of non-compliance or neglect by the delegating employer, a fine of up to 30,000 PLN may be imposed.
