Tag: eu law

Summary of speech during the AEA-EAL conference in Lyon, November 23, 2018

Katarzyna Gospodarowicz

With the Poland’s accession to UE in 2004 has opened up new opportunities for Polish entrepreneurs to provide wide range of services for foreign contractors. A key element of the principle of freedom to provide services has proved to be posting of workers. With the new possibilities has also come along new problems concerning among others the legal issues of sending the employees to work abroad. The question of belonging to a particular social security system, applicable law, labor conditions during posting period became a huge challenge, especially since these systems differ significantly from one Member State to another.

Within the first year’s Polish employers who have sent their employees encounter lot of barriers as requirement of obtaining additional work permits, not recognizing Polish salary as minimum wage and accusations of using social dumping. During these 14 years some rules has been changed, some specified but the Polish companies sending their employees to work abroad has also learned how to handle with those provisions and situation. Unfortunately, in some countries they face the same problems as at the beginning. Still there are some countries that are more open to host the posted employees and some that create a lot of paperwork, discouraging employers from posting.

In order to understand the problems of Polish employers posting their employees, it has to be noted that in Polish labour code there is regulated an institution of business trip. During business trip an employee is supposed to perform specific task on the employer’s request. We have two type of the business trips: domestic and foreign one. At the beginning it was very problematic to understand by Polish employers that the business trip is rather an institution of Polish national system and posting is European one and that during posting different legislation are applicable.
When an employer is trying to establish which exactly provisions are applicable under e.g. German law during posting period, the problem begins. Referring to posting to Germany we have several legal acts that have to be observed. Even, if we find one and appropriate provision, we discover very shortly that it refers to another legal act and another provisions. The problem is also that some obligations, as number of annual leave, minimum remuneration are regulated in collective agreements issued for particular sectors and there is no official list of those collective agreements. They are even not easily accessible. Another problem is that, even if we will find an appropriate legal act, there is very problematic to find its translation. In addition, the authorities of particular country do not provide binding answers to the issues related with the applicable law on posting in their country.

Those are only examples of problems facing by the Polish employers posting their employees to perform services among UE. I assume, that if the obligations of posting employers will be easier accessible, not only in native language of particular country and in each country will be a body that will provide information, we could avoid a bigger amount of cases of irregularities during the posting period.

It is very important to underline that not every posting by Polish employer is at once connected with the term of social dumping. From my experience, the employers are trying to comply with all the provisions on posting of particular legislation, unless they are ambiguous even for employers from host country.