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18 December 2019
The National Labour Inspectorate (PIP) oversees the practice of foreign employers posting employees to Poland as part of the provision of services. The PIP's inspections show that many foreign employers are unaware of the obligations imposed on them by Polish law.
The Act of 10 June 2016 on the posting of employees as part of the provision of services (Journal of Laws 2016, Item 868, as amended) requires that the posting employer completes several formalities. Some of them, such as the need to appoint a person to interact with the PIP or retain employee records, are explicitly mentioned in the act. However, other formalities derive from the general obligation to provide posted workers with employment conditions that are no less favourable than those pursuant to the Labour Code and other regulations.
The PIP's report on its activities in 2018 shows that in 65% of the 137 inspections carried out which involved employees posted to Poland, the most frequent irregularities related to working time and health and safety issues. Client experience confirms this finding.
Foreign employers must remember that pursuant to Article 25(1)(2) of the act, an employer posting an employee to Poland must keep documentation (or a copy thereof) regarding the posted employee's working time, including the commencement and termination of work and the number of hours worked per day. Based on this documentation, the PIP verifies, among other things, whether adequate daily and weekly rest periods were provided for employees. It is common for employers to never record their employees' working time before posting and therefore implementing this task is a surprise for them and poses practical problems.
The second problem area is the issue of health and safety training and medical examinations that employees must pass before being admitted to work. The lack of training and medical tests often results from the ignorance of the posting employer. The act does not explicitly provide for such obligations and the PIP derives them from the succinctly formulated obligation to provide employment conditions that are no less favourable than those provided for under Polish law.
Therefore, during inspections the PIP verifies whether an employee who has been admitted to work in Poland has a current medical certificate confirming that there is nothing to prevent them from working in a given position. Even if employees have had valid medical examinations conducted abroad prior to posting, according to the PIP, the employer must demonstrate that these examinations meet Polish requirements and the position taken abroad corresponds to the position in Poland.
The process of assessing employees' health and safety training is similar. Inspectors examine whether a foreign employer has provided employees training in occupational health and safety before they have been admitted to work. In particular, on-the-job training is often problematic and due to its nature must be conducted in Poland.
The PIP's practice raises doubts, as pointed out by the Ministry of Family, Labour and Social Policy. Article 9 of the EU Posted Workers Enforcement Directive (2014/67/EU) does not include an obligation to carry out medical examinations or occupational health and safety training in Poland among the administrative requirements and control measures that may be applied by EU member states. However, according to the PIP, the need to provide posted workers with conditions no less favourable than those in force in Poland obliges inspectors to verify whether these requirements have been met.
Violation of the above obligations may constitute an offence subject to a fine of Zl1,000 to Zl30,000.
In connection with numerous inspections carried out by the PIP, it is worth verifying whether the employer posting employees to Poland has fulfilled all of the tasks arising from Polish regulations in order to take any necessary corrective measures.
For further information on this topic please contact Agnieszka Fedor or Karolina Kanclerz at Soltysiński Kawecki & Szlęzak by telephone (+48 22 608 7000) or email (email@example.com or firstname.lastname@example.org). The Sołtysiński Kawecki & Szlęzak website can be accessed at www.skslegal.pl.
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