Posting workers from Poland: obligations and social security

What is international posting?

International posting means that a worker is temporarily sent to carry out work in the territory of another Member State. A Polish employer may temporarily post a worker to carry out work in the territory of another Member State of the European Union:

• in the context of performing a contract concluded with an entity operating in the territory of another Member State,
• within a branch or company that forms part of the group of undertakings to which the employer belongs and that operates in the territory of that Member State,
• as a temporary employment agency.

What obligations does the Polish employer have?

Posting a worker by a Polish employer to carry out work in the Netherlands leads to a temporary change of the place of work laid down in the employment contract. For that reason, an amending agreement (the so-called posting agreement) or a supplementary agreement to the employment contract must be concluded with the worker.

Which information obligations apply after four weeks of posting?

If the period of posting of a worker from Poland to another Member State lasts longer than four consecutive weeks, the employer is required to:

1. update the information on the worker's employment conditions;
2. inform the posted worker about:
   • the remuneration to which the worker is entitled under the law of the Member State to which they are posted;
   • the posting allowance or the provisions on the reimbursement of travel, meal and accommodation costs (where such allowances are laid down in employment legislation, regulations, statutes, collective agreements or other collective arrangements), or the allowances covering costs related to the business trip;
   • a link to the official website of the Member State in whose territory the worker is posted, containing information on the employment conditions applicable to posted workers.

The posting employer may provide the above information to the worker not only on paper but also in electronic form, provided that the information is accessible to the worker and can be printed and saved. The employer must also retain proof of sending or receipt. An employer that posts a worker from Poland is required, at the request of the Polish labour inspectorate, to provide information on, among other things, the posted workers, their employment conditions and the posting employer.

Which employment conditions must the employer guarantee?

If the posting of a worker to the Netherlands lasts no longer than 12 months, the posting employer is required to guarantee the worker the employment conditions laid down in statutory provisions and/or in collective agreements that are regarded as generally applicable in the Netherlands, relating to, among other things:

1. maximum working hours and minimum rest periods;
2. the minimum duration of paid annual leave;
3. remuneration, including overtime pay; this point does not apply to supplementary occupational pension schemes;
4. the conditions for hiring out workers, in particular by temporary employment agencies;
5. health, safety and hygiene at work;
6. protective measures relating to the employment conditions of pregnant women or women who have recently given birth, children and young people;
7. equal treatment of women and men, as well as other non-discrimination provisions;
8. the conditions for workers' accommodation, where this is provided by the employer to workers who are away from their regular place of work;
9. the amount of allowances or the reimbursement of travel, meal and accommodation costs for workers who are away from home for professional reasons

If the above employment conditions are more favourable to the posted worker in Poland than those applicable in the Netherlands, the employer must maintain the Polish conditions.

If a worker's posting period exceeds 12 months (or 18 months, provided that the Polish employer has submitted a reasoned notification), the employer is required to apply all employment conditions applicable in the host country, with the exception of those relating to the procedures, formalities and conditions for concluding and terminating employment contracts, including non-competition clauses and supplementary occupational pension schemes.

Which social security system applies during the posting?

A worker posted to the Netherlands may remain subject to social insurance in Poland if all of the following conditions are met:

• the expected duration of the worker's posting may not exceed 24 months,
• the posted worker may not be sent to replace another posted worker,
• the posted worker must, immediately before the start of the employment, have been insured in Poland for at least one month,
• the posted worker will carry out work in the Netherlands, but on behalf of their current Polish employer,
• the Polish employer has a direct employment relationship with the posted worker (in this regard it is assessed who is responsible for recruitment, the employment contract, payment of remuneration, determining the nature of the work or the dismissal of the worker),
• the Polish employer carries out its usual (normal) business activities in Poland (in assessing these criteria, account is taken of, for example: the place where the undertaking has its registered office and administration; the number of administrative staff working in the country where the employer has its office and in another country; the places where the posted workers are recruited; the place where the majority of contracts with clients are concluded; the law applicable to the contracts that the undertaking concludes with clients; the number of contracts performed in the sending country; and the turnover in a representative period in each of the countries).

To confirm that the posted worker is covered by Polish legislation for social security purposes, the Polish employer may apply to the Polish Social Insurance Institution (ZUS) for the issue of an A1 certificate for the posted worker. An A1 certificate issued by ZUS is binding on the institutions and employment offices of other Member States for as long as it is not withdrawn or declared invalid. If the worker does not hold an A1 certificate during the posting, they may, on inspection by the competent authorities of the host country, become subject to that country's social insurance. Consequently, the authority may require the Polish employer to pay the contributions for that insurance, irrespective of any administrative fines or penalties.

 This article was written together with dr. Joanna Łukaszczuk, who works at the Polish firm GWW Grynhoff i Partnerzy Radcowie Prawni i Doradcy Podatkowi. We work with GWW on a regular basis whenever international client matters, in particular those with a Polish dimension, call for it. Partly because Dirkzwager has Polish-speaking colleagues, this collaboration runs smoothly and efficiently.