New regulations on posting of employees came into force on 18 June 2016
On 18 June 2016, new regulations came into force on the posting of employees to and from Poland, implementing the Posted Workers Directive (Directive 2014/67/EU) into the Polish legal system. The Act comprehensively regulates the key issues related to posting of employees in the framework of the provision of services, including terms and conditions of their employment, duties of the posting employers as well as principles of cooperation between competent bodies of other EU member states. This Act aims to guarantee an appropriate level of protection for posted employees and it also defines the tasks and powers of the State Labour Inspectorate concerning auditing the compliance of posting of employees to and from Poland.
Amendments to the Labour Code – confirmation of terms of employment
In June 2016 the Polish Senate adopted an amendment to the Labour Code which introduced the employer’s obligation to confirm the basic arrangements related to the employment contract to the employee in writing (the type and terms of contract as well as the parties to the contract) prior to the employee being allowed to work. The new regulations aim to make it easier for labour inspectors to establish cases of illegal employment. An employer who has failed to provide a written confirmation of the terms and conditions of the employment contract before allowing the employee to work is liable to a fine of between PLN 1,000 up to PLN 30,000 (approx. between EUR 233 and EUR 6,977). The new Act was signed by the President on 22 June 2016 and shall enter into force on 1 September 2016.
Programme of facilitation for entrepreneurs
The government of Poland proposes to reduce formal internal regulations to help small and medium size businesses. The proposal is to increase the thresholds at which an employer must establish a Company Social Benefits Fund (Zakładowy Fundusz Świadczeń Socjalnych) from 20 to 50 employees and to introduce internal remuneration regulations (regulamin wynagradzania) as well as employment regulations. These duties would still be binding on employers with 20 to 50 employees if requested by a trade union.
Another proposal is to shorten the period for which employee documentation must be retained to only 7-10 years, and to allow the employers to keep such documentation in an electronic format. There are
also plans to make the inspections carried out by public administration bodies less onerous for micro and SME businesses. The Ministry for Development submitted specific draft amendments to the provisions of law implementing part of the above-mentioned proposals for consultation.
Ruling of the European Court of Human Rights – email review
In its ruling of 12 January (61496/08), the European Court of Human Rights stated that a superior could review private email correspondence that an employee sends during office hours. The case concerned a Romanian citizen who conducted private correspondence over his work email account in office hours even though the employer’s regulations prohibited employees from using the organisation’s email servers for private correspondence. After investigating the employee’s account, the employee was terminated for having violated company regulations. The employee claimed that the employer had infringed his privacy of correspondence. The Court held, however, that Article 8 of the Convention on the Protection of Human Rights and Fundamental Freedoms was not breached as the employer had acted for legitimate reasons.
Resolution of the Supreme Court – definition of the payer of social security contributions
The Supreme Court confirmed (resolution of 16 June 2016 (III UZP 6/16)) that the employer for social security contributions purposes is a specific company rather than the entire capital group. In practice this mean that an employer could challenge the obligation to pay contributions on the entire remuneration of employees employed in several affiliated companies concurrently.
Further information
For further information or to discuss any of the issues raised, please contact Roch Pałubicki on +48 61 856 04 04 at
Sołtysiński Kawecki & Szlęzak.
Resources
You may find the new regulations on posting of employees at:
http://isap.sejm.gov.pl/DetailsServlet?id=WDU20160000910
You may find the ruling of the European Court of Human Rights at:
http://hudoc.echr.coe.int/eng?i=001-159906#{"itemid":["001-159906"]}
You may find the resolution of the Supreme Court at:
http://www.sn.pl/sprawy/SitePages/Zagadnienia_prawne.aspx?ItemID=791&ListName=Zagadnienia_prawne
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