Changes in law on posting of workers in Poland – update

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.