New Legislation on the Posting of Workers to Poland
New legislation to protect employees sent from outside the country to work for a limited time in Poland came into effect on 18 June. The legislation implements just in time the EU Posted Workers Directive, which Member States were required to bring into force within two years of June 2014.
The new legislation is intended to ensure that an employee posted to work in Poland enjoys conditions of employment in line with (or at least not worse than) those available to “local” employees under the Polish Labour Code and other relevant employment legislation. The relevant “protected terms” include working time and holiday/rest periods; pay (including overtime); health and safety; non-discrimination; and protections for minors and women who are pregnant or on maternity leave.
Employers with posted employees in Poland as at 18 June, or who intend to post workers in the future, should take particular notice of the following risks:
A fine of between EUR 250 (PLN 1,000) and EUR 7500 (PLN 30,000) will be payable if the Polish Labour Inspectorate finds that the employment status of the posted employee does not meet the criteria for a temporary posting as set out in the new legislation.
Action point: posting employers should consider whether the posting is a genuine posting within the framework of the provision of cross-border services.
The new rules on the joint and several liability for posted employees of contractors and subcontractors will potentially impact heavily on the construction sector where contractors often subcontract construction-related work to a foreign employer which then posts employees to Poland.
Action point: contractors and subcontractors need to take this new legislation into account when negotiating commercial agreements.
Employers (whether from inside or outside the EU) who had posted employees to Poland before 18 June have only 3 months to comply with the new regulations for those people.
Action point: all employers with posted employees in Poland need to ensure that they comply with the Polish Labour Inspectorate’s requirements and employment-related document storage requirements set out in the new legislation. These include that contracts and documents relating to pay and working hours be stored (whether on paper or in electronic form) in Poland, and that the posting employer is able to produce those documents to the Labour Inspectorate for up to two years after the posting ends. To facilitate this, the employer must designate a person residing in Poland to liaise with the Inspectorate, as required. In addition, it must notify the Inspectorate immediately the worker starts in Poland of the number of posted employees, start and end dates, certain personal data and of the employer’s justification for using a posted worker rather than a local hire.
On a less serious note, the new legislation – somewhat bizarrely – also appears to amend the Polish Museums Act. It refers to the restriction of “access to information regarding measures applied to ensure the safety of objects against fire, theft and other dangers threatening the loss or destruction of such objects”. Hopefully, this is not implementing a recent Governmental announcement of an intention to change the current rules obliging employers to keep employee-related data for as long as 50 years after the end of employment. In Poland we were expecting a shortening of this period rather than moving these papers directly into museums as historical objects.