PCS | Littler Alert: Amendment to the Act on Posting of Workers – summary

On 4 September 2020 an amendment to the Polish Act on Posting of Workers came into force. It gave new duties to both foreign employers posting workers to Poland and, in some cases, to Polish businesses taking on such workers. The National Labour Inspectorate’s powers to supervise postings have been extended. What should foreign and domestic employers pay attention to? What steps should they take to comply with the new regulations and to avoid the adverse consequences of inspection?

I. Auditing the terms and conditions of employment for workers posted to Poland

1. First of all, we recommend verifying the terms and conditions of employment for workers posted to Poland. The crucial aspect will be to determine the components of remuneration and other work-related benefits to which they are entitled. Despite being posted to Poland, a posted worker is employed abroad, so his or her employment conditions are partly governed by the law of the country of origin. Therefore, when auditing the terms and conditions of such an employee, it is advisable to scrutinize the relevant legislation in the country of origin and in the host country.
2. Once the posted worker’s terms and conditions have been properly determined, they should be compared with the terms and conditions prescribed by Polish law to make sure that they are not less favourable. The list of terms and conditions to be compared varies based on whether the posting period is up to 12 months or more.
3. If the audit reveals that the posted worker’s terms and conditions of employment are less favourable in any of the indicated aspects than those prescribed by the Polish law, they should be adjusted accordingly. The posted worker must be offered no less than the minimum conditions of employment prescribed by Polish law and should be paid according to the same terms and conditions as a Polish employee working at the same position.

II. Auditing the declarations on the posting of workers to Poland

1. All the declarations on the posting of workers to Poland concerning pending postings, should also be verified. Since 4 September 2020, the posting employer is obliged to notify the National Labour Inspectorate about any changes to the data provided in the posting declarations. It also applies to current postings which had started before the amendment in question came into force.
2. Up to now, the employer was only obliged to notify about changes related to the employer’s data, the contact person authorised to deal with the National Labour Inspectorate or the storage place of the documents concerning the posted worker’s terms and conditions of employment for the duration of posting. However, after the amendment, the employer must notify the National Labour Inspectorate about any change of data included in the posting declaration.
3. It may prove difficult in that up until now for example the anticipated dates of the posting and termination of the posting were not, in principle, binding. If the posting was prolonged, the employer did not have to inform the National Labour Inspectorate about it at all. However, as a result of the amendment, the employer is now obliged to inform the National Labour Inspectorate should the abovementioned dates change, even though they were only estimates. Furthermore, despite the fact that it is clearly indicated which information should be included in the declaration and requires notification to the National Labour Inspectorate in case of any change, in practice it is not easy to decide whether a specific change necessitates updating the declaration.
4. Since previously there was no obligation to report such changes, many employers did not update the information contained in the declarations on posting of employees to Poland. Therefore, to ensure that the new obligations are fulfilled, it may be necessary to revise the already submitted declarations on the current postings and to monitor the accuracy of declarations submitted in the future.

We encourage you to take these steps immediately to adopt correct procedures as soon as the new regulations enter into force and to fulfil any possible obligations in a timely manner (an employer should notify the National Labour Inspectorate about the change of data indicated in the declaration within 7 days).

We are here to help you with the audit and to guide you through the new posting rules.