The new rules for posting workers were introduced into Polish law as of 4 September 2020. The amendment of the act of 10 June 2016 on posting workers in the framework of the provision of services results from the implementation into the Polish legal system of Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC on the posting of workers in the framework of the provision of services.

It follows from these new regulations that all persons posted to Poland should receive remuneration (meaning all the components thereof) at a level no lower than the one guaranteed to Polish employees. Workers posted to Poland for longer than 12 (18 on an exceptional basis) months should also be provided with the other conditions of employment in force in Poland, except the ones regarding employment termination, non-compete agreement and pension schemes.

Workers’ rights in long-term postings
 

One of the most important changes is the differentiation of a worker’s position depending on the posting duration.

For a posting lasting up to 12 months an employer is obligated to guarantee to a worker conditions no less favourable than the ones following from the Labour Code in respect of the standards and extent of working time and the periods of daily and weekly rest, the length of annual leave, remuneration for work, occupational health and safety, protection during pregnancy and maternity leave, the employment of minors, equal treatment and the ban against discrimination and business travel expenses.

This also pertains to extending a posting to 18 months but only on the condition that a motivated notification is submitted to the Polish 

Labour Inspection (PIP) on the last day of the 12-month posting period at the latest.
If the length of a posting exceeds 12 months or – if a motivated notification is submitted to PIP – 18 months, the employer will be obligated to provide a worker with all of the conditions of employment in force in Poland. In turn, it will not have to apply to posted workers the rules and the procedures of signing and terminating employment contracts, non-compete clauses, employee pension/capital schemes or collective bargaining agreements. 

The new rules for posting must also be applied to workers whose posting began prior to 4 September 2020. In such instances, employers may apply only the aforementioned fundamental conditions of employment up to 18 months of a posting without having to submit a motivated notification to PIP.

Under the act on posting if an employer posts successive workers to the same location to perform the same work, then their posting periods will be added up. When a posting exceeds 12 or 18 months, the employer will have to provide all the conditions of employment in force in Poland (with the aforementioned exceptions) to a given worker and any successive workers posted to replace him or her to provide the same service. This is the main risk in industries in which services are provided on a recurring basis – e.g. shared service centres and workers who are posted successively to fulfil similar roles. 

Workers’ rights in shorter postings
 

The amendment also affects the conditions of employment to be guaranteed to workers in the basic posting period (12 or 18 months).

According to the previous rules, an employer had to give a posted worker at least a minimum salary and an allowance for overtime work. According to the new rules, a posted worker’s remuneration should include all the remuneration components due under Polish law. This means not just base pay but also all other allowances, i.e. for work at night, in overtime, on Sundays and holidays and remuneration for being on duty, for downtime and for annual leave. Moreover, an employer must cover the costs of business trips from a posted worker’s place of work in Poland.

A posted worker’s total gross remuneration must be equal to at least the sum total of the various components due.

An employer may add a posting allowance to the remuneration insofar as it does not constitute reimbursement of expenditures incurred in connection with the posting. If the law in force does not determine the amount of the allowance for costs, the entire allowance will be treated as reimbursement of these costs.

New duties for a temporary employment agency 

Temporary employment agencies could post workers prior to the amendment. A problem arose when a worker was sent to a different country not directly by the agency but by the user undertaking. The agency continued to be the posted worker’s employer. The entity sending the worker to another country was the user undertaking. The agency with which a worker was in an employment relationship was not responsible for providing the worker with the conditions of employment in force in the country to which he or she was sent by the user undertaking.

According to the new regulations, the agency is deemed to be the posting employer also in a situation in which the user undertaking sends the worker to another EU state in the framework of the provision of services. Accordingly, the agency must ensure compliance of the worker’s conditions of employment with those applied in the state of the assignment.

User undertaking bears no responsibility?
 

The above does not mean, however, that a user undertaking does not have any duties in this area. 

The user undertaking to which the worker is sent by an agency from another EU state is obligated to inform the agency on the employment conditions applicable to temporary workers in its business. This also pertains to the conditions stemming from companies’ bargaining agreements that must also be afforded to posted workers.

If a user undertaking plans to post a temporary worker to provide services in the territory of another member state, it must inform the agency employing the worker of that intention.

Greater powers held by the Polish Labour Inspection 
 

PIP continues to act as a source of information on the rules for posting workers in Poland. Just as up until now, it is responsible for maintaining a website on which current information on the employment conditions, the scope of their application to workers posted to Poland and employers’ duties associated with posting workers is published.

PIP is supposed to do more to achieve one of the goals of the Directive, namely countering fraud or abuse related to posting. PIP’s collaboration with the relevant authorities of member states has now been extended to include fighting these practices and responding to instances of illegal activity related to posting workers.

In addition, PIP may address direct requests to employers posting workers from Poland, entrepreneurs, the Social Insurance Institution (ZUS), heads of tax offices and other public administration bodies, requesting or petitioning for necessary information if there is a suspicion of breaching the law of the member state to which a worker has been posted from Poland.

More articles in the PRO HR Year Book 2020.