by Marta Pietrzak
According to the Polish Legal Act, The Employment Promotion and Labour Market Institutions Act of 20th April 2004 (Polish name: Ustawa o promocji zatrudnienia i instytucjach rynku pracy z dnia 20 kwietnia 2004 roku), and also in accordance with the implementing regulations of the Act, any foreigner who wants to legally start a work on the Polish territory must legalize his employment. The legalization of employment followed by obtaining a document called a work permit.
The above-indicated Polish Legal Act introduces 5 types of work permits. It should be noted that the main criterions for the distribution of work permits for individual types are mainly: the basis of employment foreigners, as well as the other aspects related to job performance, for example the type of the function at work.
Polish immigration law allows starting work by a foreigner in Poland on the basis of one of the following work permits:
1. Work permit type A – is the most classic and also most often used in practice work permit, which is typical for foreigners employed on the contracts, such as: employment contract, civil contract or specific-task contract. This type of work permit is very popular because of two reasons:
– firstly, most employers employ young people (including foreigners) under an employment contract or under the another kinds of work contract,
– secondly, certainly obtain this type of work permit is associated with a much smaller number required to submit documents, as well as the easier procedure – the process takes only about 1 month.
2. Work permit type B – this is a type of work permit appropriate only for foreigners who have a function as a board member in the company, which is registered in the National Court Register – in the Polish Register for all Entrepreneurs. This type of permit occurs less than a work permit type A, because a foreigner wishing to sit in the company’s board must have suitable skills and qualifications. Moreover, in practice, these are foreigners, who are seconded from the company in their country to the branch of the same company in Poland and only for a temporary period. All procedures related to obtaining that kind of work permit are the only responsibility of the foreigners’ company.
3. Work permit type C – in recent times this type of work permit is greatly gaining in popularity. This permit is issued to the foreigner who will perform a work in Poland based on the classic secondment. These are situations in which employee from the foreign company arrives to Poland to perform the same work, but in the Polish branch of the same company or in the Polish company having links with its parent company. This is a typical secondment, because the foreigner is still formally employed by his foreign, parent company, which pays him a salary and watches over his employment. In addition, the foreigner has signed an employment contract with a foreign company, while he is working in the Polish branch of this company and performs a work under the secondment agreement.
4. Work permit type D – this type of permit is obtained also for a foreigner delegated to work in Poland, however it is different from the work permit type C. The basis of work permit type D is the fact that a company delegates a foreigner to Poland in order to perform so-called export service, which means only temporary work. Furthermore, the foreigner does not work in the Polish branch of the same company, but in a completely different facility employee, not having any subjectively connections with his parent company.
5. Work permit type E – is defines as the other type of work permit, issued very rarely due to the fact that the basis for obtaining such permit is non-compliance by a foreigner above mentioned conditions of employment, required for work permits type: A, B, C and D. In sum, the work permit type E is issued by the Polish regional authorities only if it is not complied with any of the following requirements:
– the foreigner is not employed under the employment contract or under the other kinds of civil contracts,
– the foreigner is not employed as a member of the board,
– the foreigner is in no way delegated to work in Poland: any secondment to work in the Polish branch of a company with ties to a foreign company in which he was previously employed, as well as any secondment to work in Poland in order to perform the export service.
Considering the above, a foreigner may perform work only on the basis of one of the above types of work permits. Moreover, it is very important to have the right work permit. Regional offices in all Poland verify the base of foreigner’s employment very carefully, that in each case has been issued a proper work permit. The most important aspect to work legally in Poland is limited validity and functionality every work permit, what foreigners and their employers often forget.
Every foreign worker and his employer should remember about two fundamental rules:
– First, each work permit is issued for a specified period of time (maximum 3 years period of time), that is why before the expiry of work permit, the foreigner’s employer must apply for a next work permit. It is wrong to think that once issued work permit is valid to the end of life or to think that the procedure to apply for another work permit is simplified or is associated with any facilitations. Of course, it is not like this. Regardless of how long a foreigner stays on the territory of Poland and no matter how long he works for the exact employer, also how many work permits have already possessed, the procedure for obtaining a work permit each time is the same and it requires the presentation of the same documents, takes the same actions.
– Second, a work permit is always issued for a specific employer and for a specific position binding with a precise height of salary. Each work permit contains information about the foreigner’s employer (company) and also the employee’s position in the company. This information is placed intentionally, just to indicate that according to The Employment Promotion and Labour Market Institutions Act, every work permit is valid only in relation to specific data contained on it. The foreigner may not take an employment with another employer or on another position on the basis of the same work permit, even it is the same type of permit. Therefore, if the foreigner changes the employer (wants to take a job in another company) or there is some change in the name of his current position, it is necessary to correct the form of the present work permit.
Every Polish employer, as well as any foreigner who plans to work in Poland or who is currently employed in Poland, should be familiar with these principles, with particular emphasis on the rules concerning the changes of the employer’s name or the work position’s name. This aspect is currently extremely controversial, because every year a very large number of employees-foreigners are employed illegally due to ignorance both sides: employers as well as employees. As a result, an increasing number of foreigners fall as a victim to this type of oversights and ignorance and is sent back to the country of origin or is waiting for months to get the correct work permit.
To avoid these types of situations, there should be remembered following points relating to all changes in the work permit:
1. The change of information contained in the work permit – in the work permit may be modified information such as: the employer’s data, the employee’s data, the basis of employment, the employee’s salary.
2. The change of employer – in this case is necessarily required to obtain a new work permit. The work permit is a document, which legalizes the employment relationship between the employee-foreigner and the employer that is why it only legalizes employment with one employer and one employee. If the foreigner wants to take a job with another employer, he must legalize his employment with another employer, and thus he is obliged to obtain a new work permit.
3. The change of employment’s basis – changing this information also requires a new work permit. Polish immigration law distinguishes 5 types of work permits. This distinction is made because of the base to employ a foreigner, so if the base of employment will be changed, then proper is a completely different type of work permit. An example would be a situation, which till this time the proper form of employment was a foreigner’s employment contract, but now the basis of employment is an appointment to the board member. It should be noted that the current base of employment is completely different from the previous one, and thus it qualifies as a completely different type of work permit. This situation causes that obtaining a completely separate work permit is absolutely obligatory. What is more should be remembered, is that the Polish immigration law gives a permission to employ a foreigner on the basis of several different procedures. It means that foreigner could be employed under several different work permits at the same time. Furthermore, quite often it happens that a foreigner is employed in one company under the employment contract and in another company he is employed under the secondment agreement. There is no point to any contraindications in these situations. The most important is that the employed foreigner has a proper work permit in relation to each employer and to each performed work.
4. The change of position’s name – if the foreigner has started work on another position, and what is normally, the name of previous position has changed, the adjustment in the current authorization is required. There is no need to apply for a new work permit. Enough will be only the applying for a change of the position’s name at the local department for foreigners’ cases in the one of the provincial offices.
5. The change of the remuneration’s amount – it is worth to remember that Polish immigration law prohibits the reduction of the current salary set for a work permit. Therefore, every employer employs the foreigner must be aware, that he cannot reduce the existing in the work permit remuneration. The amount of salary can be only increased. As in the case of job position’s changes, the same the increase of remuneration, it is required to submit the appropriate application to make a correction of work permit. There is no need to obtain a new work permit.
Briefly, every employer and every employee-foreigner, before taking an employment in Poland, should closely examine the basis of employment. Unimportant is the number of held work permits, the most important is the work permit’s regularity in relation to the actual employment.