by Marta Pietrzak
Establishing an employment relationship looks very different in case of foreigners coming from one of the European Union countries and in case of foreigners who are not citizens of the European Union countries.
Rules concerning employment of the non-European Union citizens governed by the Treaty on the Functioning of the European Union. According to Article 21 of the above mentioned Treaty, every European Union citizen has a right to freely move and stay on the territory on of the European Union Member States. The Article 45, refers to the principles of employing European Union citizens and says that the free movement of workers is based on equal treatment of European Union nationals in respect of remuneration and also the other conditions of employment and work.
With reference to above, every citizen of the European Union country has the right to work in any other European Union country, in the same way as a national of a given country. Therefore, citizens of the European Union, wishing to take up employment in another country, do not need to obtain any additional documents legalizing their work.
Of course, the situation is quite different for non-European Union foreigners. These persons, exactly their employers, are required to legalize every kind of employment in the form of a work permit. Citizens of countries such as: Ukraine, Russia, Belarus, Armenia, Georgia and Moldova, also have the option of obtaining a declaration of intention to employ the foreigner. Moreover, any foreigner who is not a citizen of one of the European Union country, in order to work, must obtain one of the two documents mentioned above.
Most employers are aware of the need to obtain one of the two documents above such as: work permit or declaration of intention to employ the foreigner. However, all problems begin with the length of employment contracts concluded with foreigners.
According to the Polish Labor Code, an employment contract can be concluded for a definite period of time, whereas the third job contract must be indefinite. Regardless of the country of origin, foreigners employed in the territory of the Republic of Poland, are subject to the Polish labor law, therefore all rules concerning the length of employment contracts must also be applied to them.
In case of foreigners coming from the European Union, everything is very simple because they do not need any documents confirming their work and stay in Poland. The problem occurs only with non-European Union citizens. Many employers do not know that the length of the employment contract depends on the length of the foreigners’ residence permit. This document, which confirmed foreigner stay in Poland, also determines how long the employer can establish a relation with a foreign worker. This type of legislation is very important, especially for the first job contract concluded with a foreigner. It should be also noted that foreigner from outside of the European Union countries, may legally reside in Poland on the basis of a visa (National or Schengen type of visa) or on the basis of a temporary residence permit (a residence card). The employer should be aware that may conclude an employment contract with a foreigner only for period of validity of the current residence permit.
An example can be the following situation: If a foreigner holds a National visa or Schengen visa, valid till 20th September 2017, the employer may sign a job contract with a foreigner until 20th September 2017. But if the employer concludes with a foreigner an employment contract for period of time longer than the expiry date of the residence permit, then contract expires by virtue of law on the date of the residence permit’s expiry.
The same principle applies to the second employment contract concluded with a non-European Union citizen – the length of the employment contract should correspond to the validity of the residence permit.
The exception is a third employment contract concluded with a foreigner form outside Europe. According to the Polish Labor Code, a third contract of employment must be an agreement concluded for an indefinite period of time. This is the only situation, which permits the possibility of concluding an employment contract with a non-European Union foreigner for a period of time longer than his/her residence permit. However, it should be remembered that this rule refers only to the third contract of employment.
To sum up, for any employer employing a non-European Union foreigner, there should not be unknown any rules regarding not only the documents legalizing the foreigner’s employment, but above all, the rules concerning employment contracts concluded with foreigners, what is regulated in detail by the Polish Labor Code.