Changes in employee secondment coming into effect from the end of July 2020.

From 30 July 2020, new rules concerning the posting of workers within the framework of the provision of services in European Union countries will come into force. By that date, EU Member States are obliged to implement the relevant national provisions to transpose Directive (EU) 2018/957 of the European Parliament and of the Council of 28 June 2018.

The changes will primarily concern wages and the duration of posted workers’ assignments. The Member States’ regulations are intended as a means to harmonise and streamline the system of posting workers. This will entail new obligations and restrictions for employers.

Employers’ obligations and rights

One of the most significant changes resulting from the implementation of the Directive is the distinction of the conditions that must be guaranteed to a posted worker depending on the length of the posting.

Until now, the rules on posting duration used a general concept of “temporariness”. The new regulations introduce a fixed posting period of 12 months. After this period expires, posting will be conditional on the employer providing all employment conditions stipulated by the host country’s legislation, which, in turn, is obliged to treat posted workers as local workers.

Employment conditions should be understood as all provisions of the host country’s legislation, excluding rules related to procedures, formalities, conditions for concluding and terminating employment contracts, including non-compete clauses, as well as supplementary employee pension schemes.

It should be noted, however, that according to the new regulations, provisions obliging the application of the host country’s law will not prevent the application of more favourable employment conditions from the home country.

An employer posting workers may submit a justified notification to the competent authority in the country where the work is performed (in Poland, to the National Labour Inspectorate) to extend the maximum posting period to 18 months. When calculating the posting period, periods of replacement of employees in the same position shall be taken into account.

Employees’ remuneration

The employer’s obligation to ensure the same working conditions that apply in the posting country implies the payment of wages on the same terms as for a citizen of the host country performing the same job. This is the implementation of the so-called “equal pay principle”.

To ensure the fulfilment of these obligations, Member States will have to provide information on wages arising from laws, sectoral and regional collective agreements. This means that the method of calculating wages will no longer be based solely on minimum rates applicable in the host country but will derive from all the aforementioned data.

Strengthened role of the National Labour Inspectorate in Poland

In Poland, the National Labour Inspectorate has been primarily tasked with supervising the implementation of the standards introduced to transpose the Directive. Its powers have been significantly enhanced and include matters related to acting as a liaison institution responsible for cooperation with competent authorities from other countries in areas such as: providing information on the employment conditions of posted workers to Poland, reporting irregularities and offences related to posting, submitting requests to conduct inspections, and carrying out inspections at the request of authorities from other countries.