The Act on the Posting of Drivers in Road Transport is now in force

The Act of 28 July 2023 on the Posting of Drivers in Road Transport is already in force. It aligns national legislation with EU regulations and introduces provisions concerning the posting of drivers in road transport within the country. The main objectives of the new rules are to improve working conditions for drivers and to facilitate the operation of transport businesses. Additionally, the Act sets out the rules for roadside inspections and the cooperation of public administration bodies in this area. It is indicated that the regulation is intended to protect the domestic transport market against unfair competition from carriers from other Member States and third countries. The legal act entered into force on 19 August, and is therefore already binding. It is thus worth familiarising oneself with the key changes introduced by this new legislation. This article aims to present the essential principles arising from the Act that may be of significance for entrepreneurs operating in the transport sector and the drivers they employ.

Who is affected by the new regulations?

According to Article 1(1) of the Act on the Posting of Drivers in Road Transport, it sets out the rules for:

• posting of drivers in road transport within the territory of the Republic of Poland;
• monitoring compliance with provisions on the posting of drivers in road transport within the territory of the Republic of Poland and the fulfilment of information obligations related to such posting;
• roadside inspections of the posting of drivers in road transport within the territory of the Republic of Poland;
• cooperation between the Road Transport Inspectorate and the National Labour Inspectorate in the exchange of information relating to the posting of drivers in road transport within the territory of the Republic of Poland;
• cooperation with competent authorities of other Member States regarding the posting of drivers in road transport to and from the territory of the Republic of Poland;
• proceedings related to the submission or receipt of notifications regarding decisions imposing administrative fines or penalties on a road carrier posting a driver to or from the territory of the Republic of Poland, and the enforcement of such penalties or fines.

The regulations apply to carriers established in another country who temporarily post a driver (employee) to Poland in connection with the provision of road transport services.
In addition, the Act contains a number of personal and material exceptions to the application of the introduced rules. As for personal exclusions, Article 2(1) of the Act lists the entities to which the provisions do not apply, namely:

a) Drivers posted to the territory of the Republic of Poland:

1. to work in a branch or undertaking belonging to the group of undertakings to which the posting employer belongs,
2. by an entity being a temporary work agency or a personnel-leasing agency that has posted the driver to a user employer,
3. from the Swiss Confederation, until such time as an agreement is concluded with the European Union committing to the implementation into national law of the provisions of Directive (EU) 2020/1057 of the European Parliament and of the Council of 15 July 2020 laying down specific rules with respect to Directive 96/71/EC and Directive 2014/67/EU for the posting of drivers in the road transport sector and amending Directive 2006/22/EC as regards enforcement requirements and Regulation (EU) No 1024/2012 (OJ EU L 249, 31.07.2020, p. 49), hereinafter referred to as “Directive 2020/1057”;

b) Drivers posted from the territory of the Republic of Poland:

1. to work in a branch or undertaking belonging to the group of undertakings to which the posting employer belongs,
2. by a temporary work agency,
3. to the territory of the Swiss Confederation, until such time as an agreement is concluded with the European Union committing to the implementation of the provisions of Directive 2020/1057 into national law.

Further exemptions from the Act are set out in Articles 4 and 5. These exclusions are based on the nature of the transport activity. The legislator lists certain types of road transport that are not covered by the Act, such as: transit journeys, bilateral transport of goods, road transport of goods as part of a combined transport operation when the road leg itself consists of bilateral carriage of goods, and other cases as specified in detail in the mentioned provisions.

Obligations of the carrier posting a worker to the territory of the Republic of Poland and of the posted driver

The Act provides for a number of obligations that must be fulfilled by carriers, as defined in Article 6 and Articles 9 to 11. Additionally, the provisions also apply to carriers from third countries. The primary obligation of a carrier posting a driver is to submit a notification of posting no later than at the time of posting, using the public interface connected to the Internal Market Information System (IMI). According to Article 9(2) of the Act, the notification must include a range of information. Furthermore, the posting carrier must ensure that the driver carries the documents specified in the regulations. The driver is required to have these documents in the vehicle while operating in Poland and to present them during any roadside checks. Moreover, the carrier is obliged to provide the worker with appropriate working conditions and, in accordance with Article 6 of the Act, to fulfil information obligations — that is, to inform them of their rights and obligations related to the posting.
As regards carriers from third countries, the legislator has taken into account differing technical conditions and the lack of access to the public interface linked to the IMI system. Therefore, a road carrier from a third country posting a driver to Poland must submit a notification of posting to the National Labour Inspectorate each time, no later than at the start of the posting. A suitable form for such notifications will be made available on the relevant website. Additionally, before the start of each road transport operation, the carrier must issue a certificate of posting for the driver. The content of this certificate will be determined by the minister responsible for transport.

Rules for inspecting posted drivers

The Act establishes a two-track inspection system, namely: roadside checks carried out by the Road Transport Inspectorate and checks on the correctness of posting and the employment conditions of posted drivers carried out by the National Labour Inspectorate. Furthermore, the regulations specify the procedures for cooperation with competent authorities in other Member States. In this regard, the National Labour Inspectorate is the body authorised to receive requests for mutual assistance concerning checks on the working conditions of posted drivers. The provisions also define the rules for imposing fines and penalties related to non-compliance with the obligations arising from the Act. Carriers and drivers may be subject to financial penalties imposed by the authorised bodies if they fail to meet the stipulated requirements.

Conclusion

To conclude, the Act of 28 July 2023 on the Posting of Drivers in Road Transport, which entered into force on 19 August, introduced a number of significant changes that are bound to impact businesses in the transport sector. It is essential to become familiar with the provisions of the Act, which are already binding, to avoid misinformation within one’s company and financial penalties for non-compliance with the regulations. Furthermore, carriers intending to post workers to the Republic of Poland should seek legal advice in the event of any doubts to ensure proper compliance with the posting requirements set out in the Act.