In the tenth of the publications in series “12 Rules of the Cross-Border Secondment of Employees” presents the issue of regulating the situation of taxpayers under the EU Directive on the cross-border seconding of employees. In this series we will present the most important issues related to the process of seconding employees to Poland and from Poland. Each publication will present an individual issue in details. The entire series of articles will be a compendium of general knowledge on the cross-border seconding of employees.
Due to the increasing activity of employers and employees on the international labor market, arose the necessity of introduction the regulations that would unify the rights and obligations of the parties to the employment relationship. For that purpose, among others, Directive of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services (Basic Directive) was introduced. First of all, Basic Directive lists the employment conditions that employers must provide for seconded workers. The main purposes of introducing the Basic Directive are to guarantee the protection of employee’s rights and compliance with competition rules.
The Basic Directive indicates that:
Promoting the provision of services across national borders requires fair competition and measures to ensure respect for workers’ rights.
Another act that regulates the seconding of workers is Directive 2014/67/EU on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and Directive (EU) 2018/957 amending Directive 96/71 / EC concerning the posting of workers in the framework of the provisions of services.
The new regulations introduced new obligations for employers who are planning to second their employees to work in other Member States.
The main aim of the Directive on the cross-border seconding of employees is to regulate the working conditions that employers are obligated to provide to employees seconded to work in another Member State. It is motivated by the need to ensure the protection of employees’ fundamental rights in the context of the general freedom to provide services and to conclusion of contracts.
The EU legislator focused in particular on the regulating the issue of:
- the maximum work period and the minimum rest period,
- the minimum period of paid leave to which an employee is entitled,
- the appropriate minimum remuneration and remuneration for overtime worked,
- health and safety at work.
Employers seconding their employees are required to ensure employees the minimum working conditions specified in Directive. It also must be confirmed in the employment contract concluded between the parties.
EU law has also introduced an obligation to report the fact that workers are seconded to the competent institution operating in the country of secondment.
Polish legal system
In the Polish legal system currently the Act of 10 June 2016 on the seconding of workers as a part of the provisions of services is valid. Polish legal act was introduced to implement the provisions of Directive 2014/67/UE (amended by the Act of 24 July 2020 amending the act on posting employees as part of the provision of services and certain other acts).
One of the main regulations is Article 2 paragraph 1 of the Basic Directive, which define a situation in the seconding of employees even take place.
The Basic Directive defines a seconded worker as a person who, for a limited period, carries out his or her work on the territory of another Member State.
This definition is quite broad, therefore it is worth taking into account also the Polish regulation contained in Article 3 of the Act on the Secondment of Workers, according to which the notion of an employee seconded from the territory of Poland should be understood as an employee within the meaning of the regulations of the Member State to which he/she is seconded, performing work on the territory of Poland, temporarily directed to work on the territory of this state by the employer seconding the employee from the territory of Poland.
Similarly, an employee seconded to the territory of Poland is an employee employed in another Member State, temporarily seconded to perform work in Poland.
As regards regulations concerning working conditions, employees rights and employers obligations, currently should be applied the EU Directives and provisions of the Polish Labor Code.
International law is an important element when analysing the obligations associated with the secondment of an employee. It is important to bear in mind that, in addition to international laws, the laws of the country to which the employee is seconded as well as the laws of the country from which the employee is seconded must be taken into account.
The series of “12 Rules of the Cross-Border Secondment of Employees” consists of the following articles:
- Cross-border secondment of employees
- Secondment and delegation
- Employee seconded to work in Poland
- Employee abroad – taxes in Poland
- Secondment – social and health insurance
- Secondment – documentation
- Secondment – double taxation agreements
- Secondment – income taxation in different countries
- Secondment – annual tax return
- Cross-border secondment of workers Directive
- Secondment – tax advisor assistance
- Secondment – additional questions