Temporary posting of employees to Poland continues to be problematic

Introduction
Working time documentation is not always necessary
Keeping record of working hours is not always obligatory
What kinds of record should be kept?
Comment

Introduction

Despite the fact that almost four years have passed since the Act of 10 June 2016 on the posting of workers as part of the provision of services (Journal of Laws 2016, Item 868, as amended) entered into force, its application continues to be problematic for foreign employers posting workers to Poland. One issue is that employers learn about the National Labour Inspectorate's (PIP's) verification of medical certificates stating that there are no working restrictions or occupational health and safety training only during an inspection. Another issue for foreign employers is keeping and storing records regarding a posted employee's working time.

Working time documentation is not always necessary

Pursuant to Article 25(1)(2) of the act, an employer which posts an employee to work in Poland must, during the temporary posting period, keep records (or a copy thereof) in Poland regarding the posted employee's working time, including the commencement and termination of work and the number of hours worked per day. Compliance with this obligation is usually monitored by the labour inspection services. However, whether the obligation is absolute is debateable. Employees posted to Poland are often qualified specialists or senior managers, employed under the task-based working time system, whose employers have never been required to record their working hours, even before the posting. Imposing an obligation to record working hours in Poland often provokes objections not only from employers, but also from employees themselves.

Keeping record of working hours is not always obligatory

The duties of employers posting foreign employees to Poland should be determined in view of Article 4 of the act – pursuant to which employers must provide the posted employee with employment terms and conditions that are no less favourable than those afforded by the Labour Code and other provisions regulating employees' rights and obligations. However, employers need not do more than they would pursuant to Polish regulations. The obligation to record working time with regard to Polish employees is not absolute.

Pursuant to Article 149(2) of the Labour Code, no records of working hours need be kept in relation to persons employed under the task-based working time system. Under this system, employees are discharged of completed tasks, not the time spent on their execution.

Therefore, by guaranteeing posted employees no less favourable conditions than those resulting from Polish regulations, the exemption from the obligation to record working hours should also apply in the case of foreign employees employed under the task-based working time system. Thus, foreign employers should not have to keep records of the working time of an employee posted to Poland and record the commencement and termination of work and the number of hours worked per day if the employer need not normally keep such records.

What kinds of record should be kept?

The Labour Law Department of the Ministry of Family, Labour and Social Policy holds that there is an obligation to keep records of the working time of an employee posted in Poland, but does not impose such obligation on employers. Therefore, it is reasonable to assume that the obligation to keep records of the working time of an employee posted in Poland, as regards the commencement and termination of work and the number of hours worked per day, does not apply to posted employees employed under the task-based working time system, unless the provisions applicable to the employment relationship stipulate the obligation to keep records in this respect.

On the other hand, the department notes that parties should also consider PIP's view. PIP holds that posting employers are exempt from the obligation to keep records which show on what days an employee performed their work and whether the employer, in consultation with the employee, has correctly established the time necessary to carry out the tasks entrusted. Further, PIP holds that such records may be kept in accordance with the regulations arising from the legislation of the country of posting or may result from the agreement between the parties to the employment relationship.

PIP's explanation is not convincing because Article 25(1)(2) of the act clearly indicates the obligation to keep in Poland records concerning the working time of a posted employee with regard to the commencement and termination of work and the number of hours worked per day.

Pursuant to Article 25(1)(2) of the act, as regards the scope of documentation that a foreign employer must keep in Poland, it is disputable that the employer must keep and store other data on working time in Poland. In addition, there are no grounds for PIP to demand that such documents be made available and translated into Polish within five working days from the receipt of the application (ie, within the period set out in Article 25(2) of the act). This provision applies only to the documents listed in Section 1, which are limited to data concerning the commencement and termination of work and the number of hours worked per day.

Comment

It is unknown whether PIP's practice will change. Unfortunately, employers posting employees to Poland still face the dilemma of whether to enter into a dispute with the labour inspection services regarding unclear legal regulations or perform duties exceeding the wording of the act.

For further information on this topic please contact Karolina Kanclerz at Soltysiński Kawecki & Szlęzak by telephone (+48 22 608 7000) or email (karolina.kanclerz@skslegal.pl). The Sołtysiński Kawecki & Szlęzak website can be accessed at www.skslegal.pl.