Posting (mainly to Poland) in new robes – Poland transposes Directive 2018/957/EU
On 4 September 2020, the Polish Act of 24 July 2020 entered into force [Journal of Laws 2020, item 1423, hereinafter referred to as the ”(Polish) Amendment Act”]. It amended the Act on the posting of workers as part of the provision of services and several other Acts, which had been in force since 2016 (Journal of Laws 2018.2206, as amended). The Amendment Act transposes the Revision Directive on posted workers 2018/957/EU into Polish law.
It should be noted that the vast majority of the Polish Amendment Act concerns entrepreneurs posting to Poland. Practical result thereof? It will only apply to a limited extent to entrepreneurs posting workers from Poland to other countries. It is indeed the latter that I shall focus on in this article.
Clarifications regarding temporary employment agencies
First of all, the Amendment Act introduced a significant clarification with regard to temporary employment agencies. Such agencies are to be considered as the employer posting a given worker also when the user undertaking posts temporary workers as a part of a subsequent posting (the so-called chain posting). In such case, the agency is to be responsible for completing all formalities related to the posting of a given worker.
I would embrace the regulation of this issue in such a manner. It clarifies the existing provisions and it also constitutes solution consistent with the Directive and the ”Practical Guide on Posting”. The latter document was issued by the European Commission for the sake of providing interpretation of the new provisions which have been in force since 30 July 2020.
Extension of powers of the Polish National Labour Inspectorate
A provision was introduced to the Polish Tax Ordinance, according to which the Polish National Labour Inspectorate was introduced to the catalogue of entities to which information contained in tax files is made available, in order to perform its tasks (Article 2 of the Amendment Act). That controversial change was introduced due to the difficulties indicated by the Inspection in obtaining information from the tax authorities for the carrying out of its statutory tasks and, at least pursuant to the Inspection’s position, to accelerate the obtaining of such information. The question is, whether such extension of competences was indispensable at all? It seems that not necessarily – after all, the Head of the National Revenue Administration may already give his consent to information which constitutes e.g. tax secret, to be disclosed by certain entities (e.g. heads of tax offices).
Another, particularly significant change has also appeared within the Inspection’s catalogues of tasks and entitlements. We are talking here about the new Article 12(2a) (Article 1 point 9 letter a) of the Amending Act). According to it, the Inspection has the right to address employers posting workers from Poland as well as entrepreneurs with a request or a motion for providing necessary information regarding the posting of workers from the territory of the Republic of Poland, also in the case of suspected violation of the provisions of the host Member State.
Practical effects of new Inspection powers
What does this mean in practice? Well, the Inspection will be entitled to address entrepreneurs posting workers from Poland – with a request (when a penalty is involved) or with a motion for information on the posting of a given worker. That would especially be the case in the event of a suspected violation of the laws of the host Member State.
Obviously, this provision raises serious doubts. Firstly, it concerns a (potential) breach of the host country’s laws. The Inspection, as a rule, does not have competence in such matters. After all, it deals with Polish law. Therefore, it will most probably be the authorities of host countries that will be informing about the above-mentioned suspected violations. It is not difficult to imagine that some state authorities, especially those reluctant to posting, might be very glad to be able to use that instrument.
Moreover, it should be noted that Art. 4 sec. 2, first paragraph of the Revision Directive 2018/957/EU provides that the cooperation of the competent authorities of the Member States is to consist, in particular, in responding to reasoned requests by these authorities. The problem is that the Polish Amendment Act does not contain a direct reference to a need to justify the request / motion. The said right to obtain information about workers posted from Poland is therefore an extension of the Inspection’s competences in relation to those provided for in the Directive. What could be a paradoxical effect of that regulation? PIP will be receiving requests / motions from competent authorities of host Member States – but without justification.
Fortunately – the provision reads that the Polish National Labour Inspectorate ”has the right to request” posting employers / entrepreneurs for such information. Therefore, it has no statutory obligation to refer to them each time. It is to be hoped, therefore, that it will properly ”filter” such requests / motions coming from the authorities of the host Member States, applying directly the above-mentioned provision of the Revision Directive.
How to respond to changes?
Due to the changes described above – it is well-worth verifying the documentation used within the entire proces of the posting of workers – both from the point of view of the provisions of the host Member States, as well as the EU law (and consequently – Polish law). This will enable the posting entrepreneurs to adapt to the changes brought about by the new provisions.
Dr. Marcin Kiełbasa
Photo: Kaboompics.com (Pexels)