Month: July 2020

Occurrence of events justifying protection after the termination of the contract does not constitute an obstacle to terminate employment relationships, even if the conditions for such protection existed on the day of submitting the statement or on the day of commencement of the statutory period of notice – it is due to one of the judgments of the Supreme Court – Paweł Sych and Patryk Kozieł comment for Rzeczpospolita.

Article link: here. 

The Polish parliament still works on the bill amending the Act on the posting of workers in the framework of the provision of services, aimed at the implementation the EU Directive 2018/957 of 28 June 2018.

Although works on this bill have clearly gained momentum recently, it is already known that the entry into force of the proposed changes within the deadline provided in the directive, i.e. on 30 July is unreal.

Consequences for foreign employers. No direct effect of the EU directive.

Polish government’s failure to implement the EU Directive 2018/957 in a timely manner has no impact on the foreign employers posting employees to Poland. Until the implementation enters into force, the posting of employees to Poland will remain to be subjected the current rules.

In particular, until the Polish implementation of the Directive enters into force, employees posted to Poland will not be able to pursue any claims against their employers based directly on the Directive which Poland has failed to implement in a timely manner.

Even though the settled case-law of the Court of Justice of the EU sometimes allows for direct application of an EU Directive once a member state has failed to implement it into its national law, such possibility is limited to relations between individuals and the state. As such, the possibility to apply the Directive directly does not apply to relations between workers posted to Poland and their employers.

Therefore, if the Directive 2018/957 is not implemented on time, employers posting employees to Poland will be able to continue to follow Polish domestic provisions inconsistent with this directive. They will have the new duties only from the date of entry into force of the Polish act amending the Act on the posting of workers in the framework of the provision of services.

Consequences for employers in Poland.

The untimely implementation of the EU Directive 2018/957 into the Polish domestic law does not mean that Polish employers will also be able to continue posting employees from Poland abroad in accordance with current rules.

Employers from Poland should be aware that other EU Member States may implement the Directive on time. Appropriate provisions have already been prepared, among others in France and Belgium, and are now only awaiting to enter into force. Therefore, already starting from 30 July 2020 Polish employers may be obliged to ensure additional terms of employment and comply with additional duties with regard to their employees posted from Poland to other EU countries

Poland is amending its law on posting of workers in order to implement the EU Directive 2018/957 of 28 June 2018.

The bill amending the Polish law on posting of workers is still being processed by the Polish Parliament. The new Polish rules were intended to enter into force on 30 July 2020 but it is already known that keeping the deadline is not possible. We assume the new regulations will enter into force no earlier than mid-August.

 I. Overview of changes of law on posting of workers

1. Notification about changes of data provided in the posted worker notification

The home company of the posted worker will be obligated to inform the Labour Inspection about any changes in data provided in the posted worker notification, including planned dates of posting. Currently, only change of certain data requires a new notification.

2. Short-term postings

In case of posted employees performing work in Poland for 12 months or less, the catalogue of minimum employment conditions will be extended. Starting from the date of entry into force of the bill the home country company will be obligated to ensure that the following additional Polish terms of employment are observed (if they are more beneficial than under home country employment law):

a) salary defined as all salary components;

b) business travel allowances

3. Long-term postings

Under the new rules in force in Poland, in case of long-term postings the employees will benefit from all terms of Polish employment law insofar as such terms are more beneficial to them than the corresponding terms of home country law (with a few exceptions). This applies to employees working in Poland after:

a) 18 months of posting in case of postings existing on the date of entry into force of the bill;

b) 12 months of posting in case of new postings starting after the date of entry into force of the bill (before 12 months of posting, the “short-term” posting regime applies).

The 12 months’ period mentioned in item (ii) above may be extended to 18 months by filing a justified notification to the Labour Inspection before end of the initial 12 months period. The law does not define what grounds will be accepted as justified for the notification. This will be subject to a discretionary decision of the Labour Inspection. The Labour Inspection has no right to reject such notification. However, during an audit it may conclude that it was not justified and the Polish employment law must be applied after the initial 12 months period.

Calculation of the 18/12-month limit is counter-intuitive and in individual cases may cause workers “freshly” posted to Poland to be considered as having already exceeded the 12/18-month limit. This is because the new law requires to sum up posting periods of employees performing the same task in the same place.

New terms of Polish employment law applicable to workers posted to Poland on long-term posting are going to include in particular, but not limited to, the following terms which have not been applicable to posted workers previously:

a) terms of payment for sick leave

b) terms of reimbursement of business travels within Poland

c) obligatory allowances such as allowance for night work or remuneration for stoppage (Polish “przestojowe”)

d) terms of employee liability for damage

e) rights connected with pregnancy and parenthood (e.g. rights to time off, limitations on overtime and business travel)

f) entirety of procedures and restrictions regarding granting of vacation leave (amount of annual leave entitlement is already applicable under current rules)

g) right to breaks in working time other than vacation leaves;

h) limitations regarding work on Sundays and Polish bank holidays.

4. Extension of the scope of rights of labour inspection

The new rules also extend the scope of rights of labour inspection (in particular as regards international cooperation) and suggest an increased focus on monitoring compliance and detecting abuse. Therefore, an increase in auditing activity of the Polish labour inspection is to be expected following the entry of the new rules into force.

II. Recommended steps

1. We recommend completing a review of employment terms of workers posted to Poland, in particular as regards their remuneration components and other payments and benefits connected with work. The aim of such a review would be to make sure these employment terms are no less beneficial to the posted workers than the terms of Polish employment law.
2. In any day-to-day questions and problems concerning employment of workers posted to Poland, we recommend seeking advice under Polish employment law in parallel to seeking such advice under the given worker’s home country law.

New regulations allow i.a. to suspend the social fund. Meanwhile, the current regulations also provide for this possibility – and additionally, it will be easier on their basis. –  Łukasz Chruściel, PCS Littler | Katowice comments for Dziennik Gazeta Prawna.

Article link: here. 

 

 

PIP will be able to request information about the posting of an employee from Poland to another EU country. Extended competences concern the posting of employees – both sending employees to Poland and from Poland. In addition, new obligations will be imposed on companies in the temporary employment sector. – Tomasz Rogala comments for Dziennik Gazeta Prawna.

Article link: here. 

From June 24, companies affected by the effects of a pandemic have a limit on the severance pay, compensation and other benefits related to termination of employment (PLN 26,000 in 2020). The problem is that it is still unclear whether the restriction should include, for example, bonuses guaranteed by collective agreements or remuneration regulations. – Sławomir Paruch, attoreny-at-law and partner at PCS |Littler Global Warszawa comments for Dziennik Gazeta Prawna.

Article link: here. 

Self-government cultural institutions, just like entrepreneurs, can apply for governmental support to co-finance employee wages in connection with the epidemic. Nevertheless, a heterogeneous application procedure and a double source of funding the support may significantly impede the payment of funds – Patryk Kozieł comments for Dziennik Gazeta Prawna.

Article is available here.