New rules for short-term employment of foreign citizens

2017-04-03

The government has put forward a draft act on the change to the act on promotion of employment and labour market institutions. According to the draft act, apart from the existing work permits, there will be documents including a seasonal work permit, issued by a starost for the period of nine months in a calendar year.

Besides fulfilling the obligation of implementing a EU law in the domestic legal system (transposition of the directive 2014/36/EU of the European Parliament and the Council of Europe of February 26 2014 on the conditions of entry and residence of other countries' citizens with the purpose of employment as seasonal workers), the proposed changes stem from a need to tighten the procedure related to performing short-term work by citizens of 6 countries - the Republic of Armenia, the Republic of Belarus, the Republic of Georgia, the Republic of Moldova, the Russian Federation or Ukraine, who previously were entitled to be employed on the basis of a "declaration of the intent to entrust work with a foreigner" registered at a District Employment Office. The procedure is provided for in the order of the Minister of Employment and Social Policy issued pursuant to art. 90 sec. 4 of the Act of April 20 2004 on promotion of employment and labour market institutions, making it possible to entrust work to a foreign citizen for a period of 6 months over 12 months without a need for obtaining a work permit. The simplified procedure is of particular importance to agriculture, but it's increasing use is also being observed in other sectors, including services, testimony to which is the rise in the share of all registered declarations in the shared services sector and business support operations from 8.72% in 2014 to 28.82% in 2016. Also emphasised is the rapid increment of declarations registered over recent years, in particular for citizens of Ukraine (about 97% of declarations registered).

The draft amendment to the act indicates new rules for employing foreign citizens to perform seasonal and short-term work in Poland, replacing the currently binding simplified declaration. The legislative body has also created a basis for the exchange of data related to foreign citizens' work between public administration bodies, which will undoubtedly contribute to tightening of the procedure concerning short term work. The justification of the draft act states that the procedure of issuing a short term work permit is modelled after the one currently in force but it was based on firmer legal grounds, containing mechanisms preventing malpractice, which - according to the National labour Inspectorate - includes the so-called "declaration trade", e.g. fictitious employment, or the impossibility of verification whether a foreign citizen has in fact started performing the work stated in the declaration. Additionally, the draft imposes other restrictions pertaining to business entities applying for such a permit, e.g. running business operations for a period of at least 12 months before submitting the declaration or employment of at least one worker on the employment contract basis for a minimum of three months.

Also introduced will be a new declaration format - a declaration of entrusting a foreign citizen with seasonal work, based on the currently binding declaration procedure but with some modifications aiming to prevent malpractice. The procedure of issuing a seasonal work permit will be analogous to the existing solutions, but it will apply to citizens of all countries outside the EU and EEA. The draft act indicates the time for arrangements which do not require preliminary investigation (7 business days) and those requiring it (30 days). An application for a permit will be submitted by the business entity offering work to a District Employment Office, where the conditions of entrusting work will be inspected. If the conditions are met, the application will be entered in the register of applications with respect to seasonal work. A permit for seasonal work will be issued by a starost for a period of up to nine months in a calendar year.

The draft amendment to the act also provides for introduction of a fee for submission of applications to the amount of 30 PLN (as against the current fee of 100 PLN for a work permit issued by provincial governors).

In my view, the proposed process of employment legalisation may be considerably extended, which will have a negative impact on market sectors to a large extent based on short term work performed by foreign citizens, most notably the sector of services. Consequently, the outflow of foreigners would have effect on the growth of Polish economy, as all entrepreneurs' demand is to maintain certain flexibility on the labour market while shifting the balance between the positions of the entrepreneur and the employee might soon impact the situation of the latter.

The draft is to undergo further proceedings in the Sejm. It is planned that the proposed changes enter into force on January 1 2018.

New Rules for Short-term Employment of Foreign Citizens

Your contact

MG 12 Michał Kacprzyk Associate Tel.: +48 (22) 630 66 25Information