The amendment to the Act on the posting of workers in the framework of the provision of services and other acts implementing Directive (EU) 2018/957 was signed by the President of the Republic of Poland. The implementation of the EU directive will enter into force on 4 September 2020.
The new regulations will significantly impact the change of practices regarding posting workers to Poland, not only the management of the posting duration or ensuring an appropriate remuneration amount. The signs of efficient information exchange between authorities in the field of posting workers and possible effect on the decisions of Provincial Offices regarding the issuance of residence permits for foreign nationals posted to work in Poland are already visible.
Changes, such as the introduction of posting time limits, which should be followed by introduction of local regulations related to the remuneration of employees, are extensively discussed by employers posting workers.
Employer’s reporting obligations
Also, the reporting and information obligations of employers posting workers are gaining in importance. According to the amendment to the Act, the scope of obligations has been extended regarding updating data reported to the National Labor Inspectorate.
What may be the consequences of not reporting to the National Labor Inspectorate? According to the currently applicable Act on the posted workers in the framework of the provision of services, as well as its amendment, it may result not only in financial penalties, but also potential refusal to issue a residence permit based on the posting of a worker to Poland.
Recently, the notifications of the posting of workers have been verified by the Provincial Offices jointly with the Chief Labor Inspector as part of the evidence proceedings regarding the residence permits granted to foreign nationals posted to work in the territory of Poland.
Pursuant to the provisions of the Code of Administrative Procedure, the public administration body has the right (as well as the obligation) to collect the evidence necessary to resolve the case. In the case of activities related to the procedure for granting a temporary residence permit for the purpose of performing work by a foreign national posted by a foreign employer to the territory of Poland, the purpose of the stay is of key importance - determining whether the worker is actually posted. One of the evidences confirming this fact may be the notification of the posting to the National Labor Inspectorate, and its lack in the worst-case scenario may constitute the basis for refusal to issue a residence permit for a foreign national working in Poland.
The employer posting a worker to Poland should submit to the National Labor Inspectorate a statement including, i.a. information on the expected number of workers posted to the territory of Poland, along with their names and surnames, dates of birth and citizenship – the statement should be submitted on the day of commencement of the posting at the latest.
The obligation to update the notification currently applies to the situations specifically defined in the Act, including changes of:
- data identifying the employer,
- the person designated to contact the National Labor Inspectorate regarding the submitted application,
- place of storing the documents.
So far there have been no specific guidelines related to updating the notifications on posted workers, which now appears to be a crucial evidence of the posting of a worker applying for a residence permit. The amendment to the Act on the posting of workers requires the notifications to be updated in terms of all its elements, which should draw a special attention of posting employers.
New reality for companies posting workers
Will the evidence proceeding and seeking information from the Chief Labor Inspector by the Provincial Offices become a new trend and a fixed practice in the procedure for granting residence permits in Poland to non-EU/EEA workers? Considering the current practices of Polish authorities, it appears to be possible. It is also important that apart from its effect on the decision-making process regarding the residence permits granted to posted workers, obtaining information may also constitute a method of verification whether the employers comply with the obligations resulting from the Act on the posting of workers. It may be related not only to reporting, but also at other stages, such as ensuring appropriate employment conditions.
With regard to the above, it seems essential to comply with all the obligations arising from the Act as it will reduce the mentioned risk and may significantly limit the duration of immigration procedures
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