Posting without a work permit – rules on legal posting to Poland of foreigners from countries third by entities related to Polish entities for a period up to 30 days per calendar year without authorisation

This Article is devoted to a specific immigration law institution, which is commonly referred to as "delegation without work permit". This term refers to the exception provided for in the provisions on work permits for nationals of non-EU countries (defined as ‘states’).

third”, which thanks to the interpretation a contrario provides the possibility of posting foreign workers to Polish affiliated entities without having to have a work permit, provided that the period of posting to Poland does not exceed 30 days per calendar year.

This exception, which is readily used by potentially qualified employers due to difficulties in obtaining work permits in time, is a law institution which is often misused in practice, which may result in different negative legal consequences for both the employer and the posted worker.

Introduction

Article 88(1)(3) Act dated 20 April 2004 promoting employment and labour market institutions 1 (hereinafter as ‘the Employment Promotion Act’) provides that a work permit is required when a foreigner performs work for a foreign employer and is posted in the territory of the Republic of Poland for a period exceeding 30 days in the calendar year to a branch or plant of a foreign entity or an entity associated with a foreign employer, within the meaning of Act dated 26 July 1991 on income tax on individuals.

There are a number of interpretative doubts about the scope of the provision and it is necessary to establish this scope in order to assess the legality of the employment of the posted foreigner. The most important of these are the notion of posting and associated entity, as well as the question of the rules governing the posting of a foreigner during the period first 30 days in the calendar year without authorisation.

It is worth noting that this exception allowing a foreigner to be posted to work in Poland without a work permit, is of great interest among foreign employers associated with Polish entities, because it is possible to send an employee of an entity established outside the European Union to perform work for a Polish entity. However, it should be remembered that this exception applied incorrectly, often motivated by the desire to optimise and accelerate the process of hiring a foreigner, can be a source of negative consequences for both the foreign employer and the posted worker itself, due to the foreigner's recognition of the work being illegal.

Definition of delegation

According to Article 3(6) Act dated 10 June 2016 on the posting of workers in the provision of services 2 (hereinafter referred to as ‘the Posting Act’), a worker posted to the territory of the Republic of Poland is employed in another Member State, temporarily assigned to work in the territory of the Republic of Poland by an employer posting an employee to the territory of the Republic of Poland.

Under Article 3(4) in the abovementioned act, as an employer of a posting worker in the territory of the Republic of Poland, the employer of the posting is defined as an employer established and established in another Member State, from whose territory he temporarily directs the worker to work in the territory of the Republic of Poland, among others, in a branch or company belonging to a group of companies to which the employer belongs, operating in the territory of the Republic of Poland.

In turn under Article 26 The proposed law extended the provisions of the Posting Act to employers established or established outside the European Union (e.g. Ukraine).

It follows from the above that, in order to establish the existence of a posting, it is necessary for a posted worker to be employed by an employer established outside the territory of Poland, and its assignment to work in the territory of the Republic of Poland to be temporary and therefore limited in time.

It should also be pointed out that the essence of the secondment is the employment of a person in another State on the terms indicated by the seconding entity, and then entrusting him with temporary work (e.g. by means of an annex to the contract concluded) in Poland.

Definition of a related party

In the context of the possibility of secondment of staff to a related entity (where a work permit is necessary only if the secondment is greater than 30 days), the question to be explained is the definition of that entity. Article 88(1)(3) Employment Promotion Act refers in this respect to provisions Act dated 26 July 1991 on personal income tax 3 (hereinafter: ‘PIT Act’). After the amendment of the PIT Act in force from 1 January 2019 related entities, in accordance with Article 23m(1)(4), are:

1. Entities one the entity has a significant influence on at least one another entity, or
2. Entities with significant influence:

• the same other entity, or

• spouse, relative or relative to second the degree of natural person having a significant influence on at least one the entity, or

3. A company without legal personality and its associates, or

1. The taxpayer and his foreign establishment, and in the case of a tax group, the capital company which is part of it and its foreign establishment.

At the same time, by exerting a significant influence, it is understood by Article 23m(2) PIT Act:

1. 1. possession directly or indirectly at least 25%:

• • shares in capital or
• • voting rights in control bodies, acting as or managing bodies, or
• • shares or rights of participation in profits or assets or their exspects, including units and investment certificates, or
• 2. 2. the actual ability of a natural person to influence key business decisions by a legal person or an organisational entity without legal personality, or
• 3. 3. being married or having a relationship or affinity for second grade.

Content Article 88(1)(3) It is clear from the Employment Promotion Act that this provision only covers the situation of posting between related parties as defined in the PIT Act. Therefore, it follows that the delegation between entities not included in the aforementioned definitions of the related party will not be covered by the standard. Article 88(1)(3) Employment Promotion Act, which will be relevant to the issue described in the paragraph below.

Delegation to 30 days per calendar year

The interpretation doubt which is the main subject of this Article is the question of posting, which will meet all the conditions envisaged under Article 88(1)(3) Act on Promotion of Employment, but less than 30 days in the calendar year concerned.

There is no doubt that this provision imposes on the foreign employer the obligation to obtain a work permit if the posting of a foreigner employed by him to a branch or establishment or an entity associated with him is longer than 30 days per calendar year. The provisions of the Employment Promotion Act or other legal acts do not refer to the situation of posting of a kind, but not exceeding 30 days per calendar year.

In the absence of a regulation of the above situation, it should be considered that a permit to work in such a situation will not be necessary, given the principle ‘which is not prohibited by law, is allowed’, expressed under Article 8 Act dated 6 March 2018 – Business law 4 .

This provision allows entrepreneurs to take any action not prohibited by law, and also contains a restriction on the imposition of obligations on entrepreneurs – the entrepreneur can only be obliged to a certain behaviour on the basis of legal provisions.

No provision requiring work permits for aliens posted from the territory of the State third to related entities established in Poland for a period not exceeding 30 days in the calendar year and at the same time the introduction of such a posting requirement exceeding the period 30 the days in the calendar year suggest that the intention of the legislator was to leave an exception to the situation of short-term posting.

This view is shared by the Ministry of Family, Labour and Social Policy, in a letter of signature DRP.VIII.40321.106.2018.

MM dated 7 January 2019 it was clearly stated that if the period of posting to the territory of Poland by the employer of a foreign foreign foreigner entitled to stay and work in the country third will not exceed 30 days in the calendar year this is allowed to work in the territory of the Republic of Poland by such a foreigner without permission to work.

A similar view was also expressed in the authors' telephone conversations with representatives of the Border Guard.

1. Culepa is also of the same opinion 5 , recognising that in cases of posting of an employee of a foreign employer to a Polish related entity for a period up to 30 it is unnecessary to obtain work permits in the calendar year.

However, it should be stressed that the above views concern only situations in which the actual period of work of the foreigner during the posting does not exceed 30 days per calendar year.

Cases where the foreigner actually performs work for a total period exceeding 30 days in the calendar year, and the employer obtains a work permit for him after starting working in Poland.

In such a case, the period of performance of work by the foreigner before the beginning of the validity of the work permit will probably be considered by the control authorities (the authorities of the State Labour Inspection and/or Border Guard) as a case of illegal performance of work by the foreigner, with all these consequences.

At the same time, it should be noted that, in the opinion of representatives of the Ministry of Family, Labour and Social Policy, the period 30 Posting days should be assessed only in relation to calendar days worked by a foreigner in Poland – it is not relevant to calculate the length of working time in Poland that a foreigner is posted to work for several different entities.

Summary

On the basis of the above considerations, it must be concluded that:

• In order to be able to recognise a given type of employment as posting in the territory of the Republic of Poland, the foreigner must be employed by an employer established outside Poland, and its referral to Poland must be limited in time. This issue should be reflected in employment documents in a clear and unambiguous manner. In practice, this usually means that the seconded person has to sign a contract with the seconding entity abroad (e.g. Ukraine) and then draw up an annex or/and a letter temporarily sending it to Poland.
• in order to be able to consider the posting data as posting between related parties, one must have a significant influence on second, in particular by having 25% shares in capital, voting rights or rights to property, and as a result of certain family or other relationships;
• the provisions of the Employment Promotion Act require the employer to obtain a permit to work in the situation of posting between related entities only if the posting is longer than 30 the days of the calendar year, but do not contain rules on such delegation, but no longer than 30 days per calendar year;
• lack of regulation of the posting situation between related parties for the period below 30 days per calendar year means the absence of work permits for foreigners employed in this way;
• the view of the legality of employment without the permission of aliens posted to a related entity for a period of less than 30 the days of the calendar year are shared by the Ministry of Family, Labour and Social Policy and representatives of the Border Guard;
• it should be remembered that situations in which the foreigner actually performs his work for a total period exceeding 30 the days of the calendar year and the employer obtains a work permit for him after the start of his work in Poland are considered illegal;
• the decision of the foreign employer to delegate a foreigner to several different entities in Poland does not affect the way the period is calculated 30 days of posting – it is not permitted to extend the period of posting without permission by changing the entity to which the foreigner is posted.

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1 i.e. Journal of Laws of 2021, item 1100

2 i.e. Journal of Laws of 2021, item 1140

3 i.e. Journal of Laws of 2021, item 1128

4 i.e. Journal of Laws of 2021, item 162

5 See comment on Article 88 Employment Promotion Act [in:] M. Culep, M. Rotkiewicz, D. Wołoszyn-Kądziolka, Employment Promotion Act and Labour Market Institutions. Commentary, Warsaw 2015