Changes in regulations concerning global mobility

What is global mobility?

Due to the constant development of businesses and the fact that they are, more and more often, operating from several countries around the world at once, legal regulations concerning the posting of workers in the framework of the provision of services have appeared. This model is profitable for the businesses, because they can move their biggest ‘talents’ to offices and countries that could use their abilities in the best way. For the employees, on the other hand, it could pose a chance for development and give them a possibility to move abroad without having to look for another job. Initiatives like this are supported by the European Union – in 2019 they even issued a practical guide on posting (link)

Law regulations

Issues concerning global mobility are regulated, among others, by the Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, OJ L 018 21.1.1997, p. 1-9 (later: Directive 96/71/EC), Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System ( ‘the IMI Regulation’ ) Text with EEA relevance, OJ L 159, 28.5.2014, p. 11–31 (later: Directive 2014/67/EU) and in Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (Text with EEA relevance), OJ L 173, p. 16-24 (later: Directive 2018/957).

Considering the fact, that European Union’ directives only describe the results, without dictating the means to achieve them, the Member States are obligated to create their own regulations. In Poland, when the posting of workers in the framework of the provision of services are concerned, the results from the abovementioned directives are implemented in the Act of 10 June 2016 on the posting of workers as part of the provision of services (i.e. Journal of Laws of 2018, item 2206, as amended) (later: Act on the posting of workers). Changes introduced in Directive 2018/957 were implemented into the Polish laws through the Act of 24 July 2020 amending the act on the posting of workers as part of the provision of services and certain other acts (Journal of Laws, item 1423) (later: Act amending the act on the posting of workers).

It is worth mentioning, that the abovementioned Polish regulations concern, in most cases, posting workers to the territory of Poland (by employers, temporary employment agencies or agencies hiring out personnel – article 3 section 4 of the Act on the posting of workers), and not from the territory of Poland (article 1 section 1 of the Act on the posting of workers). In cases concerning posting a Polish worker to the territory of another Member State, one has to read the regulations of the Member State. The information on posting of workers in different Member States are provided by the national liaison offices and authorities.

Regulations of the Act of June 26, 1974, Labor Code (i.e. Journal of Laws of 2020, item 1320, as amended) (later: Labor Code) also apply in this situations.

National liaison offices and authorities

Each Member State has at least one national liaison office or authority dedicated to the information on the topic of the posting of workers (https://ec.europa.eu/social/main.jsp?catId=726&langId=en). Those offices and authorities monitor the terms and conditions of employment during the posting, investigate alleged infringements and then exchange information with each other.

Introduced changes

The most important regulation introduced by the Directive 2018/957 and the Act amending the act on the posting of workers is setting a time period for the employer to provide the posted employee with employment conditions no less favourable than those resulting from the Polish Labour Code and other provisions regulating the rights and obligations of employees (article 4 section 1 of the Act on posting of workers). Section 2 of the same article, on the other hand, that will be discussed in further detail later, specifies what is considered as an employment condition in this case.

This time period is 12 months long (article 4 section 1 of the Act on posting of workers), with the possibility to prolong it for another 6 months, which gives 18 months in total in the case of submitting a motivated notification to the National Labor Inspectorate before the expiry of the period of 12 months (article 4a section 1 of the Act on posting of workers). The period of 12 or 18 months is defined by the sum of the time periods of the posting of all employees posted to the territory of the Republic of Poland consecutively by a given employer posting an employee to the territory of the Republic of Poland to perform the same task in the same place (article 4c section 1 of the Act on posting of workers).

In the event that the period of 18 months or 12 months (in the case of failure to submit the motivated notification to the National Labor Inspectorate) will be exceeded (the so-called long-term posting), an employer posting an employee to the territory of the Republic of Poland provides such an employee, in addition to the terms and conditions of employment specified in Art. 4 sec. 1 and 2, also other terms of employment no less favorable than those resulting from the provisions of the Labor Code and other provisions regulating the rights and obligations of employees (article 4b section 1 of the Act on posting of workers). From a wide catalog of conditions, which the employer posting an employee to the territory of the Republic of Poland must ensure, the only conditions excluded from the rules are the procedure for concluding and terminating employment contracts and applying non-competition clauses, as well as the ones for employee pension programs and employee capital plans.

As for temporary employment agencies and agencies hiring out staff, the regulations concerning them are not included in Art. 4, but in art. 4d of the Act on the posting of workers.

Another important change is the introduction, as one of the terms of employment, no less favourable than those resulting from the Labour Code (even during the first 12 months of posting an employee on the territory of the Republic of Poland) the terms of remuneration for work (article 4 section 2 point 3 of the Act on posting of workers). In the previous version, this point referred only to the conditions concerning the minimum wage. This means that there is an explicit reference to Art. 78 of the Labor Code that establishes the rules for determining the amount of remuneration. Sections 3 to 6, article 4 of the Act on posting of workers also clarify which conditions should be taken into consideration while determining the remuneration.

Intra corporate transfer

Directive 2014/66/EU of The European Parliament and of The Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intra-corporate transfer, OJ L 157, p. 1-22 (later: Directive 2014/66/EU) defines intra-corporate transfer as the temporary secondment for occupational or training purposes of a third-country national who, at the time of application for an intra-corporate transferee permit, resides outside the territory of the Member States, from an undertaking established outside the territory of a Member State, and to which the third-country national is bound by a work contract prior to and during the transfer, to an entity belonging to the undertaking or to the same group of undertakings which is established in that Member State, and, where applicable, the mobility between host entities established in one or several second Member States (article 3 letter b of the Directive 2014/66/EU). The matter is similarly defined in article 3 section 13b of the Act of 12 December 2013 on foreigners (i.e. Journal of Laws of 2020, item 35, as amended) (later: Act on foreigners), which implements the results set in the Directive 2014/66/EU into Polish legislation. Therefore, it applies to foreigners whose place of residence at the time of submitting the application for a temporary residence permit for the purpose of performing work under the intra-corporate transfer is outside the territory of the Member States of the European Union (article 3 point 3 and article 139a section 1 of the Act on foreigners). Moreover, the foreigner should work in Poland for the host entity as a manager, specialist or a trainee employee. The conditions for the intra-corporate transferee permit vary, depending on the form of work, and are described in article 139a of the Act on foreigners. One of them is the obligation to be employed within the same enterprise or the same group of enterprises for a period of at least 12 months (manager or specialist) or 6 months (trainee employee) (article 139a section 1 point 1 letter c of the Act on foreigners). The foreigner must also have a place of residence in the territory of the Republic of Poland (letter e) and have health insurance, as defined by the Act of 27 August 2004 on health care services financed from public funds or confirmation that their insurer covers the costs of treatment in the territory of the Republic of Poland (letter d). The regulations also define the elements of the contract under which the foreigner is to perform work or undergo an internship (article 139a section 1 point 2 and section 2 of the Act on foreigners).

The permit is granted by the voivode competent for the seat of the host entity by way of a decision (article 139i section 1 of the Act on foreigners) upon request of the host entity in Poland (article 139k section 1 of the Act on foreigners). In case of a change in the circumstances affecting the granting of the permit, the host entity shall notify the voivode who granted the permit in writing within 15 working days (article 139m section 1 of the Act on foreigners).

Intra-corporate transfer is also linked with short- and long-term mobility. If a foreigner has a valid long-term visa or a residence permit within the meaning of Art. 1 section 2 letter a of Council Regulation (EC) No. 1030/2002 of June 13, 2002 establishing a uniform format for residence permits for third-country nationals (Journal of Laws of the EU, No. of 2002, No. 157, p. 1) as amended, the foreigner has the right to enter and stay in the territory of the EU Member States (article 3 point 7a of the Act on Foreigners). The period of short-term mobility for a manager, specialist or trainee employee may not exceed 90 days (in any period of 180 days) in each EU Member State (article 3 point 7i of the Act on foreigners), while for long-term mobility this period is more than 90 days in a given EU Member State (article 3 point 7f of the Act on foreigners). In the case of using short-term mobility, the procedure is much simpler, as the possibility of mobility depends on the authorized body not issuing an objection within 20 days after the notification of the intention to use the mobility has been submitted by the host entity established in another EU Member State that issued the residence permit to the foreigner (article 139n section 1 point 3 of the Act on foreigners). In the case of long-term mobility, however, a permit for a temporary residence motivated by the long-term mobility is required (article 139o of the Act on foreigners).

The information on the intra-corporate transfer can also be found on the official website of the Office for Foreigners (https://udsc.gov.pl/cudzoziemcy/obywatele-panstw-trzecich/przeniesienie-wewnatrz-przedsiebiorstwa/zezwolenie-na-pobyt-czasowy-w-celu-wykonywania-pracy-w-ramach-przeniesienia-wewnatrz-przedsiebiorstwa/).

Sources:

1. https://europa.eu/youreurope/business/human-resources/posted-workers/posting-staff-abroad/index_pl.htm
2. Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, OJ L 018 21.1.1997, p. 1-9
3. Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System ( ‘the IMI Regulation’ ) Text with EEA relevance, OJ L 159, 28.5.2014, p. 11–31
4. Directive (EU) 2018/957 Of The European Parliament And Of The Council of 28 June 2018 amending Directive 96/71/EC concerning the posting of workers in the framework of the provision of services (Text with EEA relevance), OJ L 173, p. 16-24
5. Act of 10 June 2016 on the posting of workers as part of the provision of services (i.e. Journal of Laws of 2018, item 2206, as amended)
6. Act of 24 July 2020 amending the act on the posting of workers as part of the provision of services and certain other acts (Journal of Laws, item 1423)
7. Act of June 26, 1974, Labor Code (i.e. Journal of Laws of 2020, item 1320, as amended)
8. Directive 2014/66/EU of The European Parliament and of The Council of 15 May 2014 on the conditions of entry and residence of third-country nationals in the framework of an intracorporate transfer, OJ L 157, p. 1-22
9. Act of 12 December 2013 on foreigners (i.e. Journal of Laws of 2020, item 35, as amended)
10. Council Regulation (EC) No 1030/2002 of 13 June 2002 laying down a uniform format for residence permits for third-country nationals, OJ L 157 15.6.2002, p. 1-6
11. https://udsc.gov.pl/cudzoziemcy/obywatele-panstw-trzecich/przeniesienie-wewnatrz-przedsiebiorstwa/zezwolenie-na-pobyt-czasowy-w-celu-wykonywania-pracy-w-ramach-przeniesienia-wewnatrz-przedsiebiorstwa/