Checks on the posting of workers to the territory of Poland

Checks on the performance of employers’ obligations

The State Labour Inspection is an institution set up to combat abuse or respond to cases of illegal activities relating to the posting of workers. It conducts checks on the posting of workers to the territory of Poland.

Such checks by the State Labour Inspection authorities are conducted on employers posting workers to the territory of Poland.

In practice, an employer posting a worker to the territory of Poland will be represented during a check by a person authorised by such an employer. A labour inspector may request to be provided with the data of such person by a person acting as an intermediary between the State Labour Inspection and the employer posting the worker..

Checks by the State Labour Inspection are conducted to verify whether an employer posting a worker to the territory of Poland:

• has fulfilled its obligations, in particular whether the employer:
• has submitted a declaration on the posting of a worker to the territory of Poland
• has notified the State Labour Inspection of changes in data in the declaration
• has appointed a person responsible for contacts between the State Labour Inspection and the employer posting the worker
• keeps documents relating to the employment of the posted worker in the territory of Poland
• has provided appropriate conditions of employment to the worker posted to the territory of Poland.

See what are the obligations of employers posting workers to the territory of Poland

A user employer who uses a temporary agency worker posted to the territory of Poland by a temporary employment agency or a placement agency may also be subject to a check to verify whether the user employer:

• has provided the employer posting the worker with information on the conditions of employment of temporary agency workers arising from the applicable laws and from that user employer’s internal documents (for example, rules, statutes, agreements, collective agreements)
• has notified the employer posting the worker about the intention to refer the worker posted to that user employer to temporarily work in another Member State.

See what are the obligations of user employers.

Verification of the status of a posted worker

The State Labour Inspection checks whether workers have been correctly posted to the territory of Poland in cases where there are doubts as to whether the worker concerned may be regarded as a posted worker.

In particular, it is aimed at determining whether:

• the employer posting the worker genuinely carries out substantial activities in the territory of another Member State other than purely internal management or administrative activities
• the worker posted to the territory of Poland carries out work only temporarily in this territory.

When determining whether these conditions have been met, the State Labour Inspection takes into account a wide timeframe and assesses all circumstances which it deems to be necessary and which:

• characterise the activities carried out by the employer posting the worker in that employer’s country of establishment or residence and, where necessary, in the territory of Poland
• characterise the work and situation of the worker posted to the territory of Poland.

If the actual status of the employer posting the worker is verified, such circumstances include in particular:

• the place where the establishment has its registered office and administration, uses office space, pays mandatory taxes on its activities and mandatory social security contributions and, where applicable, in accordance with the law of the Member State of establishment has a relevant document authorising it to carry out a specific type of activities or is registered with the chambers of commerce or professional bodies
• the place where posted workers are recruited and from which they are posted
• the law applicable to contracts concluded by the employer posting the worker to the territory of Poland with its workers and the law applicable to contracts concluded with its clients
• the place where the establishment carries out substantial business activities and where it employs administrative staff
• the number of contracts performed or the size of turnover in the Member State of the establishment’s registered office.

If the actual status of the posted worker is verified, such circumstances include in particular:

• whether the work is carried out for a limited period of time in the territory of Poland
• the date on which the posting starts
• whether the posting takes place to a Member State other than the one in or from which the posted worker habitually carries out work
• return of the worker to the Member State from which he was posted, or the expectation that he will resume work in that member State after completing the work or services for which he was postedthe nature of the work
• whether travel, accommodation and board is provided or reimbursed and, if so, how they are provided or what method of reimbursement is used
• any previous periods during which the post concerned was filled by the same or by another worker.

Important! If one or more of the circumstances concerning the employer posting the worker or the posted worker do not occur, this does not mean that the worker was not posted to the territory of Poland in the situation concerned. The State Labour Inspection adapts the assessment of those circumstances to each specific case, taking into account the specific nature of the situation concerned.

If the State Labour Inspection considers that the worker concerned cannot be regarded as a posted worker, and in particular that an appearance that the worker was posted was unlawfully created:

• the employer posting that worker or the person acting on that employer’s behalf may receive a fine of PLN 1 000 to PLN 30 000
• the law of the country where the worker is employed is applied. This must not, however, result in the worker being subject to conditions of employment less favourable than those applicable to workers posted to the territory of Poland.

When are checks conducted?

Checks on the proces of the posting of workers to the territory of Poland may be conducted both ad hoc, when posted workers are in Poland during a check by the State Labour Inspection, and after the posting, in which case a check may be conducted up to 2 years after the posting of workers to the territory of Poland.

Powers of labour inspectors

During a check by the State Labour Inspection, a labour inspector is entitled to, inter alia:

• freely access the site, as well as premises and facilities
• inspect premises, facilities, workstations, machinery and equipment and inspect how technological processes and work are done
• request that the employer posting a worker to the territory of Poland or the person acting on that employer’s behalf provide information, documents or declarations relating to the posting of workers to the territory of Poland, including their translation into Polish
• hear a posted worker as a witness in connection with the performance of work in the territory of Poland
• verify the identity of a posted worker, including request that a relevant document be presented, such as an ID card or a passport.

If a check concerns a foreigner posted to Poland by an employer established in a country other than a Member State of the European Union or of the European Economic Area or Switzerland, the inspector may also verify whether that worker is legally present in Poland or has a valid work permit, if required.

See when a foreigner may legally work in Poland.

Important! Refusal to present documents at the request of a labour inspector or refusal to provide information or clarifications is a minor offence punishable by a fine of PLN 1 000 to PLN 30 000.

If it is found that the applicable laws have been infringed, a labour inspector from the State Labour Inspection may instruct the employer concerned to eliminate the irregularities found by issuing:

• decisions – written or oral
• a follow-up statement
• oral instructions, targeted at the entity concerned.

If irregularities which are regarded as minor offences under the applicable laws are found, a labour inspector is entitled to:

• initiate proceedings to punish the infringer
• impose a fine in proceedings for imposing a fine
• apply to a criminal court to obtain a judgment against the infringer.

In cases in which the minimum penalty is higher than the maximum fine, a labour inspector may only apply to a court to obtain a judgment against the infringer.

In justified cases, taking into account the circumstances of the case, the degree of fault and the attitude of the person accused of the offence, a labour inspector may consider it sufficient to:

• caution the infringer
• reprimand the infringer
• warn the infringer.

Important! As part of proceedings for a minor offence or minor offences, which are separate from a check procedure, a labour inspector may collect evidence from documents and hear persons as witnesses or as persons suspected of committing a minor offence. Documentation from previous checks may also serve as evidence.

Minor offences relating to non-compliance with the provisions on the posting of workers

Certain irregularities relating to the posting of workers to the territory of Poland are regarded as minor offences punishable by a fine of PLN 1 000 to PLN 30 000.

Irregularities on the part of employers posting workers

An employer posting a worker to the territory of Poland or the person acting on that employer’s behalf is liable to a fine if:

• they fail to fulfil the following obligations:
• to designate a person responsible for contacts between the State Labour Inspection and the employer posting the worker
• to submit a declaration on the posting of a worker to the territory of the Republic of Poland to the State Labour Inspection at the latest on the day on which the services begin to be provided
• to notify the State Labour Inspection of any changes in the information included in the declaration in a timely manner
• to keep documents relating to the employment of the posted worker in paper or electronic form during the period of posting to the territory of Poland
• to make documents and their translation into Polish available during the period of posting to the territory of Poland, at the request of the State Labour Inspection
• to deliver documents and their translation into Polish, at the request of the State Labour Inspection, up to 2 years after completion of the work by the worker posted to the territory of Poland
• the State Labour Inspection finds that a worker cannot be regarded as a worker posted to the territory of Poland and the situation concerned is not, in fact, a posting (for example, when the posting was used to circumvent the law and introduce the person referred to Poland to the Polish labour market).

Irregularities on the part of user employers

If a temporary employment agency or a placement agency posts a temporary agency worker to the territory of Poland, the user employer is liable to a fine if they do not provide the following information to this agency:

• the terms and conditions of temporary agency work in the territory of Poland arising from the generally applicable laws, which are published on the official website on the posting of workers to the territory of Poland, as well as other conditions of employment of such workers arising from collective agreements and other collective arrangements based on laws, and rules and statutes setting out the rights and obligations of the parties to the employment relationship, and
• the conditions of accommodation, if provided to workers who are away from their regular place of work under collective agreements and other collective arrangements based on laws, and rules and statutes setting out the rights and obligations of the parties to the employment relationship
• the intention to refer this worker to another Member State.

Important! A user employer to whom a Polish temporary employment agency hired out a temporary agency worker and who then posted this temporary agency worker to the territory of another Member State is also liable to a fine if they do not notify this agency of the intention to refer this worker to another Member State.

Minor offences relating to failure to provide appropriate conditions of employment

Minor offences relating to failure to provide appropriate conditions of employment to workers posted to the territory of Poland, specified in the provisions of the Labour Code and punishable by a fine of PLN 1 000 to PLN 30 000, fall into a separate category.

In such cases, employers posting workers to Poland are liable for these minor offences on the same terms as Polish employers.

These minor offences may involve:

• infringement of provisions on working time or provisions on workers’ parental rights (for example, in respect of pregnant women and during maternity) and the employment of adolescent workers
• failure to pay remuneration for work or another benefit due to a worker or to a member of the worker’s family eligible for this benefit within the agreed time limit
• unjustified reduction of the amount of this remuneration or benefit or unjustified deductions
• failure to grant annual leave to which workers are entitled or unjustified reduction of the duration of this leave
• failure to comply with occupational health and safety laws or rules in the workplace.

Minor offences relating to the infringement of provisions on the employment of temporary agency workers

In the case of temporary agency work, minor offences may involve hiring out a temporary agency worker to carry out:

• particularly hazardous work
• work in a position in which a worker is employed by a user employer and while that worker takes part in a strike
• work of the same type as that carried out by a worker employed by a user employer with whom the employment relationship was terminated for reasons unrelated to workers during the last 3 months before the planned date on which the temporary agency worker is to begin work, if such work would be carried out in any organisational unit of the user employer located in the municipality where the organisational unit in which the dismissed worker was employed is or was located
• work which requires equipping a security staff member with firearms or electro-muscular incapacitation devices for which a license is required
• temporary agency work for one user employer for a period exceeding 18 months in total in a period of 36 consecutive months
• temporary agency work for one user employer for a period exceeding 36 months if the temporary agency worker continuously carries out temporary agency work involving tasks for which an absent worker employed by the user employer concerned is responsible.

A user employer or a person acting on that user employer’s behalf also commits a minor offence if they:

• fail to provide healthy and safe working conditions in a place designated for temporary agency work to a temporary agency worker or fail to equip the temporary agency worker’s workstation with machinery and other technical equipment that meet conformity assessment requirements
• fail to fulfil the employer’s obligations agreed in writing with a temporary employment agency, including:
• fail to provide working clothes and shoes and personal protective equipment to a temporary agency worker
• fail to provide supportive meals and beverages to the temporary agency worker
• fail to provide training courses on occupational health and safety to the temporary agency worker before permitting that person to work and periodically
• fail to ensure that the circumstances and cause of an accident at work suffered by the temporary agency worker are determined in the required manner
• fail to inform the temporary agency worker about occupational risks associated with that person’s work and about the rules of protection against hazards
• fail to fulfil other obligations agreed with the temporary employment agency relating to the performance of temporary agency work by the temporary agency worker
• use a temporary agency worker to carry out:
• particularly hazardous work
• work in a position in which a worker working for a user employer is employed in a period when that worker takes part in a strike
• work of the same type as that carried out by a worker employed by a user employer with whom the employment relationship was terminated for reasons unrelated to workers during the last 3 months before the planned date on which the temporary agency worker is to begin work, if such work would be carried out in any organisational unit of the user employer located in the municipality where the organisational unit in which the dismissed worker was employed is or was located
• work which requires equipping a security staff member with firearms or electro-muscular incapacitation devices for which a license is required
• use the same temporary agency worker for a period exceeding 18 months in total in a period of 36 consecutive months
• use a temporary agency worker for a period exceeding 36 months if that person continuously carries out temporary agency work involving tasks for which an absent worker employed by that user employer is responsible
• fail to keep records of hours worked by a temporary agency worker to the extent and on the terms applicable to workers
• prevent a temporary agency worker from taking annual leave.

Minor offences relating to illegal work by foreigners

Minor offences relating to illegal work by foreigners in the territory of Poland fall into a separate category. They may occur when a foreigner from a third country posted to Poland:

• does not have a residence title allowing them to legally reside in Poland or carry out work
• carries out work without a relevant work permit in cases where such a permit is required (for workers posted to Poland, these are usually type C, D and E permits).

In such cases, both the entity employing the foreigner and the foreigner themself are liable for illegal employment (the former for illegally entrusting work and the latter for illegally working in the territory of Poland), and the amount of the fine depends on the type of infringement found.