Changes in employing foreigners introduced in the Anti-Crisis Shield 3.0 (“COVID-19 Act”)
The lower house of parliament in Poland (the Sejm) adopted a bill of 14 May 2020, amending certain legislative acts regarding protection measures in connection with the spread of the SARS-CoV-2 virus (the so-called “Anti-Crisis Shield 3.0”). The Act entered into force the day after its publication, so on 16 May 2020.
The most important changes regarding the employment of foreigners, which are introduced by the new Act, concern the possibility of changing the working conditions of foreigners in the event of the employer taking advantage of the co-financing provided for in the Act, without the obligation to obtain additional documents legalising their work.
Existing rules for employing foreigners
Undoubtedly, this possibility should be assessed favorably. Until now, the provisions of the “Crisis Shield” (“COVID-19 Act”) did not directly regulate the issue of changing the working conditions of foreigners in the event of changes in working conditions, for the purposes of submitting applications for funding. The above raised many doubts on the part of employers.
General provisions on entrusting work to foreigners, in particular the provisions of the Act on employment promotion and labour market institutions, indicate that the entity entrusting the performance of work is required to provide the foreigner with work in such a working time, or in such a number of hours per week or month, and determine appropriate this remuneration, which was specified in the content of the work permit or statement on entrusting work to a foreigner. Otherwise, entrusting the performance of work contrary to the permit or declaration will be qualified as illegal entrustment of work. This is connected with the employer’s responsibility for the offense.
Introduced under the Anti-Crisis Shield 3.0 art. 15z5 removes existing doubts. It directly indicates that if, in connection with obtaining funding by the employer under the COVID-19 Act, the conditions for the work of the foreigner specified in the documents legalising work change, the foreigner may work under these changed conditions without the need to change the permit, obtain a new permit, or entering a new statement on entrusting work to a foreigner in the register of statements.
Proposed changes not accepted
In the course of legislative work, the possibility of further expanding the catalog of situations in which a change in the working conditions of foreigners would be possible, without obtaining additional documents, was considered.
The extension was to include cases not closely related to obtaining funding under the COVID-19 Act, i.e. when the employer would not plan or did not meet the criteria for using the grant under Art. 15g, and yet would take measures to protect jobs by concluding agreements with the social partner on changing employment conditions pursuant to art. 91 or art. 231a of the Labour Code. Unfortunately, this possibility was ultimately not included in the Act.
Entry into force
The provisions regarding the change of working conditions for foreigners entered into force on the day following the date of promulgation of the Act, i.e. 16 May 2020. Therefore, if the employer, before the amendment, began to use the subsidy and therefore foreigners performed work on conditions other than those indicated in the documents legalising work, since the entry into force of the Act of 30 April 2020, entrusting work under other conditions will not constitute an illegal entrustment of work.
This does not mean, however, that entrusting work under other conditions in connection with co-financing before the amendment will create a risk of liability for illegal entrustment of work. The Ministry of Labour and Social Policy, together with the Office for Foreigners, presented a position convergent with the currently adopted regulation.
In a situation where the entrepreneur planned to use the subsidy under the anti-crisis shield and therefore, reduced the working time and remuneration, such a change in working conditions and pay did not result in the employer’s liability for illegal entrustment of work. A change in working conditions on the terms set out in the COVID-19 Act placing foreigners on an equal footing with Polish employees, could not be considered a socially harmful act, the perpetrator of which could be attributable to guilt.
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