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Secondment as a common aspect of legalization work for EU and non-EU foreigners

by Marta Pietrzak

According to the Polish labor law, every foreigner who is not a citizen of the European Union must have a legalized residence and work. In order to legalize and get a job, a non-EU citizen must obtain the appropriate type of work permit or so-called declaration of intention to employ a foreigner – if it is a citizen of Russia, Ukraine, Belarus, Moldova, Armenia or Georgia.

Until recently, the above regulations have not concerned citizens of the European Union who in accordance with Article 45 of  Treaty on the Functioning of the European Union, have the freedom to move and also to work inside the European Union, in the same way as nationals of the Member States. Generally, foreigners from the European Union are still allowed to move and work without unnecessary formalities inside the European Union, but from 1st of January 2017 has been made some very significant change in the legalization of work. This change concerns the issue of posting a foreigner to work in Poland.

According to the Polish Acts: The Foreigners Act of 12th December 2013 and The Employment Promotion and Labour Market Institutions Act of 20th April 2004, there are 5 types of permits:

1. Work permit type A – if the employment is based on a classic job contract (contract of employment)

2. Work permit type B – if a foreigner will perform a specific function on the management board of the company in Poland and therefore the basis of this employment is the appointment to a post

3. Work permit type C – if the basis of employment is a secondment and the work will be performed in a branch, establishment of a foreign employer or in the entity associated with a foreign employer

4. Work permit type D – if the employment is based on secondment and work will be done in order to realize the export service (temporary character of work)

5. Work permit type E – if the employment is based on secondment, but the principles of secondment are quite different from principles appropriate for work permits type C and D.

By the end of 2016, every non-EU citizen must have obtained one of the above work permits in order to be able to legalize and start a work. However, this principle did not apply to foreigners from the European Union, even if their employment was based on secondment. This situation has changed. From 1st of January 2017, every foreigner, also a citizen of the European Union, must obtain a work permit if he or she is seconded to work in the territory of Poland. Accordingly, the rules for obtaining work permits type: C, D and E, are common for foreigners from all over the world, whether they are or they are not citizens of the European Union.

It should be also noted that the secondment is a very unusual form of employment, in practice very rarely used. Secondment is related to the fact that a foreigner is still employed by a foreign company but works for a Polish employer. From a formal point of view, a foreigner is subject to a foreign employer and indeed, this foreign company is his/her principal employer. Among other things, for this reason, the Polish legislator decided to introduce a significant change in the legalization of work for the European Union citizens.

Moreover, it should be noted that a foreigner who is posted to work in Poland, regardless of the country of origin, does not conclude an agreement with a Polish employer. The essence of the secondment is that the foreigner is bound by the employment relationship with a foreign employer. However, in order to legalize the employment, a foreigner must have a so-called Statement of secondment to work in Poland, which should contain the following information:

– the exact start and end date of the secondment,

– the precise definition of gross amount remuneration,

– the description of a position / function performed as a part of secondment.

The statement of secondment to work in Poland which does not contain at least one of the above information, does not provide enough basis for issuing a work permit.

In summary, at present, every foreigner who is delegated to work in Poland, and therefore is formally employed by a foreign employer, is obliged to obtain a work permit type: C, D or E.

Marta Pietrzak
Lawyer, journalist, traveler. She loves Italian cuisine and oriental dishes. Specialist in Polish immigration law. Assistant of the Legal Aid Department at Papug.pl