Posting of foreigners

Suppose you are an employer who concludes a contract with a customer based in one of the European Union countries and plans to send employees there. In that case, it is necessary to comply with the provisions on "secondment". An essential condition for such qualification is a temporary, short period under the contract concluded with a company from another Member State. Most importantly, the posting of foreigners is possible and lawful.

All employer obligations are clear from Directive (EU) 2018/957 of the European Parliament and of the Council of June 28, 2018. The posting of an employee from the sending country must occur under his direction and on his account within the territory of a Member State. The basis for this is a contract between the posting company and the recipient of the services. This also applies to employers who post foreigners.

Who is a posted worker, and who is a migrant worker?

The posted worker by art. Three points 6 and 7 of the Act of 10 June 2016 on the posting of employees as part of the provision of services - a person who works for a limited period in the territory of one of the European Union countries, other than those he usually works.

A migrant worker - is a person who uses the freedom of movement to take up work and has full access to the host country's labour market.

What is the difference between a business trip and a secondment?

The basis for including employees in the second group is that the provision of services on the territory of another country should be insignificant. Therefore, the main revenues must be obtained in the country where the company is based. The fact that the employer's activity in Poland is leading justifies the transitional period of the delegation.

Where an enterprise provides services in the territory of another Member State on a continuous, regular, and constant basis, the enterprise shall be deemed established in that country. In such a situation, the company should register its activity there and comply with all provisions arising from the applicable labour code.

Verification of the actual secondment in the case of secondment of Ukrainian citizens and other foreigners

A prerequisite for recognising that we are dealing with the posting of workers is whether the company has significant activity in the sending country. Such assessment shall take into account the following elements:

headquarters
place of recruitment of posted workers
number of executed contracts or turnover volume
a place where a company carries out significant activities
start date of posting
the fact that after the service or work is completed, the employee returns to the country from which he was posted and resumes work there
the fact that the posting employer provides transport and accommodation

Posting of foreigners. How do you think you should proceed to perform the tasks legally and correctly?

If you want to delegate a citizen of a non-EU country, you must first legalise his stay in Poland. This applies to the secondment of Ukrainian citizens. The employer's obligations are:

verifying whether the foreigner has a valid document permitting his stay in Poland - it is best to make a copy of such document and keep it throughout the entire period of employment
conclusion of an employment contract in writing - together with a translation
applying for health and social insurance and paying contributions throughout the entire period of employment
settlement of income tax advances

Choice of law

The choice of law is an essential element related to the employment relationship of a posted worker. By Art. 8 of Regulation 593/2008 (Rome I), the law applicable to contractual obligations should be chosen. What does it mean? In practice, this means that if a Polish employer does not place an annotation under which of the legal systems (Polish or its contractual partner from the EU) wants to be subject, he may be qualified under the host country's legislation. As a result, his employee will belong to the foreign social security system, tax obligations, etc. However, this is one of the fundamental issues when we want to deal with the posting of foreigners.

Terms of employment, regardless of the choice of law

Nevertheless of, which of the legal systems of the countries (sending or receiving) we choose, specific regulations resulting from international directives remain unchanged. This applies to:

minimum remuneration - currently applicable in the host country of posted workers, by their qualifications, together with the rate for overtime
minimum rest period
the maximum period of working time
a minimum amount of paid holidays
equal treatment for men and women
protective measures against pregnant women or just after childbirth, as well as children and adolescents
safety and hygiene at work

The exception is when the initial installation or assembly of specific products is integral to the contract. It is unnecessary to comply with the minimum wage and leave requirements, provided that the tasks' duration is, at most, eight days. If the company has manufactured stairs in Poland and goes to mount them to the customer in his home, we do not have the question of posting Ukrainian citizens.

International case law based on the Vander Elsta rule

It should be remembered that when posting citizens from outside the Union (posting of foreigners) for a specified period to perform the service in another Member State. Entrepreneurs must ensure that they are legally employed in the country in which they are established. Then he can delegate them to work based on Vander Elsta's rule, formulated based on the judgment of the ECJ of 9 August 1994, in case C-43/93. Based on it, it is possible to post foreigners from outside the Union for a limited time without meeting requirements such as obtaining a work permit in a given member state.

The Court also held that some additional requirements for posted workers from third countries by some Member States are disproportionate.

Equal treatment of EU citizens as regards working and employment conditions

Based on Article. 21 of the Treaty on the Functioning of the European Union (TFEU), every EU citizen has the right to free movement. This is a highly valued value resulting from the fundamental rights of citizens. Article 45 TFEU extends the right to reside in the territory of another country to free movement of workers and to provide services. These rules also apply to third-country nationals who are legally employed in an EU member state and who meet the guidelines arising from national regulations. Based on the above legal acts, the posting of foreigners is legal. The base is that the employee should be employed under the rules in force in the host country. It is essential to comply with the regulations regarding the minimum wage applicable at the place of secondment.

An EU member state may not block the posting of foreigners.

The above information shows that Poland, as a member of the European Union, may enjoy the freedom to provide services in Europe. Each employer can second their employees to the Member States, where they will perform a specific task under the contract. After fulfilling all obligations on his side, an entrepreneur with third-country nationals on his crew may take them with him for a limited period.

Unfortunately, the consequence of non-compliance with host country requirements is enormous penalties imposed on Polish employers. An example is German law and the provisions of the third-social book (III Buch Sozialgesetzbuch). German law provides for sanctions for offenses against the law in Germany. It can reach up to EUR 500,000 with a financial penalty and imprisonment. So, should it be calculated or is it worth risking?